Estates
Fall 2006
Prof. Howard Black
TERMINOLOGY ...................................................................................................................................................................... 7
FORMS OF TESTAMENTARY DISPOSITIONS................................................................................................................. 8
1. NATURE OF A WILL............................................................................................................................................................... 8
2. WILL SUBSTITUTIONS ........................................................................................................................................................... 9
Types of will Substitutes ....................................................................................................................................................... 9
3. TAX CONSEQUENCES ON DEATH ........................................................................................................................................ 10
INTESTATE SUCCESSION .................................................................................................................................................. 12
1. INTRODUCTION ................................................................................................................................................................... 12
2. DISTRIBUTION ON INTESTACY............................................................................................................................................. 12
a) The Surviving Spouse or Partner ................................................................................................................................... 12
i) When There Are No Surviving Issue ............................................................................................................................................. 12
ii) Preferential Share .......................................................................................................................................................................... 13
iii) Distributive Share ........................................................................................................................................................................ 13
b) Issue ............................................................................................................................................................................... 14
c) Lineal Ascendants and Collaterals ................................................................................................................................ 15
3. PARTIAL INTESTACY ........................................................................................................................................................... 16
FORMAL VALIDITY OF WILLS ........................................................................................................................................ 18
1. ATTESTED WILLS ............................................................................................................................................................... 18
a) Introduction ................................................................................................................................................................... 18
b) In Writing ...................................................................................................................................................................... 20
Murray v Haylow (1927) ON CA ................................................................................................................................................. 20
c) Signed by the Testator or Amanuensis ........................................................................................................................... 20
Re White (1948) NS CA ............................................................................................................................................................... 20
d) At the End of the Will ..................................................................................................................................................... 20
Re Riva (1978) ON Surr. Ct. ......................................................................................................................................................... 20
e) Attestation ...................................................................................................................................................................... 20
Chesline v. Hermiston (1928) ON HCJ ......................................................................................................................................... 21
f) Acknowledgement ........................................................................................................................................................... 21
Re Gunstan (1882) CA .................................................................................................................................................................. 21
2. PRIVILEGED WILLS ............................................................................................................................................................ 21
Re Booth (1926) ............................................................................................................................................................................ 21
3. INTERNATIONAL WILLS ..................................................................................................................................................... 21
4. HOLOGRAPH WILLS ........................................................................................................................................................... 22
a) A Deliberate or Fixed and Final Intention .................................................................................................................... 22
Bennett v Gray (1958) SCC .......................................................................................................................................................... 22
b) Use of Printed Wills....................................................................................................................................................... 23
Re Forest (1981) SK CA ............................................................................................................................................................... 23
c) Formalities..................................................................................................................................................................... 23
Re Clarke (1982) ON Surr Ct. ....................................................................................................................................................... 23
d) Holograph Codicils to Formal Wills ............................................................................................................................. 23
f) Incorporation by Reference of Non-Holograph Documents........................................................................................... 23
Re Dixon-Marsden Estate (1985) Ont. Surr. Ct. ........................................................................................................................... 23
g) Attested Will vs. Holograph Will: .................................................................................................................................. 24
TESTAMENTARY CAPACITY ............................................................................................................................................ 25
Validity: Procedural Issues ................................................................................................................................................................ 25
1. INTRODUCTION ................................................................................................................................................................... 25
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2. AGE REQUIREMENT ............................................................................................................................................................ 26
3. KNOWLEDGE & APPROVAL................................................................................................................................................. 26
4. MENTAL (TESTAMENTARY) CAPACITY ............................................................................................................................... 27
a) Introduction ................................................................................................................................................................... 27
Banks v. Goodfellow (1870), CB 170 ........................................................................................................................................... 27
b) Mental Capacity – General Insanity.............................................................................................................................. 28
Leger v. Poirier (1944) SCC ......................................................................................................................................................... 28
Re Davis (1963) ON..................................................................................................................................................................... 28
Candido v. Ciardullo (1991) BCSC............................................................................................................................................... 29
c) Mental Capacity – Insane Delusions ............................................................................................................................. 29
O’Neil v. Royal Trust (1946) SCC ................................................................................................................................................ 29
d) Onus of Proof ................................................................................................................................................................ 29
i) Generally ........................................................................................................................................................................................ 29
ii) Suspicious Circumstances ............................................................................................................................................................. 30
Barry v. Butlin (1838) PC ............................................................................................................................................................. 30
Vout v. Hay (1995) SCC ............................................................................................................................................................... 30
e) Date for Assessing Capacity .......................................................................................................................................... 31
Parker v. Felgate (1833) ................................................................................................................................................................ 31
Re Bradshaw Estate (1988) ........................................................................................................................................................... 32
5. UNDUE INFLUENCE ............................................................................................................................................................. 32
Hall v Hall (1868) ......................................................................................................................................................................... 32
Wingrove v. Wingrove (1858) ...................................................................................................................................................... 32
Craig v. Lamoreux (1920) ............................................................................................................................................................. 32
Re: Marsh Estate; Fryer v. Harris (1991) ...................................................................................................................................... 32
Mayrand v. Dussault (1907) .......................................................................................................................................................... 33
6. FRAUD ................................................................................................................................................................................ 33
7. MISTAKE............................................................................................................................................................................. 33
a) Introduction ................................................................................................................................................................... 33
b) Patent Mistake ............................................................................................................................................................... 33
c) Drafting Errors .............................................................................................................................................................. 33
Re Morris (1971) ........................................................................................................................................................................... 34
d) Execution of Wrong Instrument ..................................................................................................................................... 34
NATURE OF TESTAMENTARY DISPOSITIONS ............................................................................................................ 35
1. INCORPORATION BY REFERENCE......................................................................................................................................... 35
In the Goods of Smart (1902) ........................................................................................................................................................ 36
Re Dixon-Marsden Estate (1985) .................................................................................................................................................. 36
Doctrine of Republication ................................................................................................................................................................. 36
2. DISPOSITION OF PARTS OF THE BODY (FUNERAL ARRANGEMENTS) ................................................................................... 37
Saleh v. Richard (1993)................................................................................................................................................................. 37
Mississauga Basement Fire Case .................................................................................................................................................. 37
3. LIMITS OF THE POWERS OF TESTATION ............................................................................................................................... 37
Re Millar (1938) SCC
(The Baby Derby) ................................................................................................................................ 37
4. TESTAMENTARY GUARDIANS AND CUSTODIANS ................................................................................................................ 38
TESTAMENTARY GIFTS ..................................................................................................................................................... 39
1. ABATEMENT ....................................................................................................................................................................... 39
Lindsey v. Waldbrook (1897) Supreme Ct. ON (CA) ................................................................................................................... 39
2. ADEMPTION ........................................................................................................................................................................ 39
Re Hunter (1975) ON HCJ ............................................................................................................................................................ 40
3. DATE FROM WHICH THE WILL SPEAKS ............................................................................................................................... 40
a) The General Rule ........................................................................................................................................................... 40
Re Rutherford (1918) SC ON........................................................................................................................................................ 40
b) Contrary Intention ......................................................................................................................................................... 41
i) Generally ........................................................................................................................................................................................ 41
Re Bird (1942) ON CA ................................................................................................................................................................. 41
ii) Use of Temporal Words ................................................................................................................................................................ 41
Re Forbes (1956) ON CA.............................................................................................................................................................. 41
c) Change in Name and Form ............................................................................................................................................ 41
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i) Generally ........................................................................................................................................................................................ 41
Re Britt (1968) .............................................................................................................................................................................. 41
ii) Tracing .......................................................................................................................................................................................... 42
Re Cudeck (1977) On CA ............................................................................................................................................................. 42
4. REAL PROPERTY SUBJECT TO MORTGAGE .......................................................................................................................... 42
Re Hicknell; Perry v. Hicknel (1981) Ont. HCJ ............................................................................................................................ 42
CAPACITY OF BENEFICIARIES ....................................................................................................................................... 43
1. INTRODUCTION ................................................................................................................................................................... 43
2. ILLEGITIMACY .................................................................................................................................................................... 43
3. ADOPTION........................................................................................................................................................................... 43
4. WITNESSES ......................................................................................................................................................................... 44
a) Generally ....................................................................................................................................................................... 44
Re Trotter (1899) Chancery Div. .................................................................................................................................................. 44
Thorpe v. Bestwick (1881) ............................................................................................................................................................ 45
Re Ray’s Will Trusts (1936) ......................................................................................................................................................... 45
5. DISCLAIMER ....................................................................................................................................................................... 45
Montreal Trust Co. v. Matthews (1979) ........................................................................................................................................ 45
6. HOMICIDE ........................................................................................................................................................................... 46
a) Generally ....................................................................................................................................................................... 46
b) Problems of Proof.......................................................................................................................................................... 46
Hollington v. Hewthorn (1943) UK .............................................................................................................................................. 46
Re Charlton (1969) ON CA .......................................................................................................................................................... 46
Demeter v. British Pacific Life (1983) ON HC ............................................................................................................................. 46
Re Emele (1941) SK KB ............................................................................................................................................................... 47
c) Nature of the Crime ....................................................................................................................................................... 47
R v. National Insurance Commission (1981) UK QB ................................................................................................................... 47
Nordstrom v Baumann (1962) SCC .............................................................................................................................................. 47
d) Limits of Disentitlement ................................................................................................................................................. 47
Re Gore (1972) ON HCJ ............................................................................................................................................................... 47
CLASS GIFTS ......................................................................................................................................................................... 49
1. INTRODUCTION ................................................................................................................................................................... 49
2. NATURE AND EFFECT OF A CLASS GIFT .............................................................................................................................. 49
3. IDENTIFYING CLASS GIFTS ................................................................................................................................................. 50
a) A Class Gift or a Gift Nominatim? ................................................................................................................................ 50
Re Snyder (1960) ON HCJ............................................................................................................................................................ 50
b) Artificial Classes ........................................................................................................................................................... 50
Kingsbury v. Walter (1901) HL .................................................................................................................................................... 50
c) Description by Number .................................................................................................................................................. 51
Re: Burgess (1968) BC SC............................................................................................................................................................ 51
4. DETERMINING MEMBERSHIP OF CLASS............................................................................................................................... 51
a) Generally- Class Closing .............................................................................................................................................. 51
Re: Hyslop (1978) ON HCJ .......................................................................................................................................................... 51
Getty v. Crow (1985) ON Dist. Ct. ............................................................................................................................................... 52
b) Gifts to each Member of a Class ................................................................................................................................... 52
Re Belleville; Westminster Bank Ltd. v. Walton (1941) Chancery Div. ....................................................................................... 52
LAPSE ...................................................................................................................................................................................... 53
1. INTRODUCTION ................................................................................................................................................................... 53
2. DISPOSITION OF LAPSED GIFT ............................................................................................................................................. 53
Re Stuart (1964) BC SC ................................................................................................................................................................ 53
Re Crago (1976) ON HC............................................................................................................................................................... 53
3. ANTI-LAPSE LEGISLATION .................................................................................................................................................. 54
a) Generally ....................................................................................................................................................................... 54
Re Wolson: Wolson v. Jackson (1939) Chancery Div. ................................................................................................................ 54
b) Contrary Intention ......................................................................................................................................................... 54
Re Wudel; Moore v Moore (1982) AB QB ................................................................................................................................... 55
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Horton v. Horton (1978) BC SC ................................................................................................................................................... 55
4. EXCEPTIONS TO LAPSE ....................................................................................................................................................... 55
a) Joint Tenancy ................................................................................................................................................................ 55
Re Gamble (1906) ON .................................................................................................................................................................. 55
Re Coughlin (1982) On HCJ ......................................................................................................................................................... 56
b) Gift in Fulfilment of Moral Obligations ........................................................................................................................ 56
Re Mackie (1986) ON HCJ ........................................................................................................................................................... 56
c) Class Gifts...................................................................................................................................................................... 56
d) Republication................................................................................................................................................................. 56
5. SPECIAL SITUATIONS .......................................................................................................................................................... 57
a) Powers of Appointment.................................................................................................................................................. 57
b) Dissolved Corporations ................................................................................................................................................. 57
c) Charities ........................................................................................................................................................................ 57
d) Secret Trusts .................................................................................................................................................................. 57
6. SUBSTITUTIONARY GIFTS ................................................................................................................................................... 57
a) Generally ....................................................................................................................................................................... 57
Re Cousen's Will Trusts ................................................................................................................................................................ 58
b) Words of Limitation or Substitution? ............................................................................................................................ 58
Re Klein (1981) BC CA ................................................................................................................................................................ 58
c) Substitutionary Class Gifts ............................................................................................................................................ 58
Re Grasset (1973) ON CA ............................................................................................................................................................ 58
SURVIVORSHIP ..................................................................................................................................................................... 59
Adare v. Fairplay (1956) ON CA .................................................................................................................................................. 59
Re Topliss Estate (1957) ON HC, aff’d CA .................................................................................................................................. 59
PERPETUITIES ...................................................................................................................................................................... 61
ACCUMULATIONS ............................................................................................................................................................... 62
1. INTRODUCTION ................................................................................................................................................................... 62
2. THE STATUTE..................................................................................................................................................................... 62
Re Hume (1983) SK Surr. Ct. ....................................................................................................................................................... 62
Re Martin (1979) ........................................................................................................................................................................... 63
3. TERMINATING ACCUMULATION .......................................................................................................................................... 63
Saunders v. Vautier (1841)............................................................................................................................................................ 63
Wharton v Masterman (1895) ....................................................................................................................................................... 63
Re Burns (1960) AB CA ............................................................................................................................................................... 63
4. DESTINATION OF EXCESS INCOME DURING THE ACCUMULATION PERIOD .......................................................................... 64
Re Ellis; Canada Permanent Trust Co. v Ellis (1982) SK QB ....................................................................................................... 64
5. EXCEEDING THE ACCUMULATION PERIOD .......................................................................................................................... 64
Re Struthers (1980) ON CA ......................................................................................................................................................... 64
PERSONS INCAPABLE OF MANAGING THEIR OWN AFFAIRS ............................................................................... 65
1. INTRODUCTION ................................................................................................................................................................... 65
2. HISTORY OF SUBSTITUTE DECISION-MAKING ..................................................................................................................... 65
2. THE SUBSTITUTE DECISIONS ACT ....................................................................................................................................... 66
3. GUARDIANS OF PROPERTY .................................................................................................................................................. 68
4. OTHER TYPES OF DIRECTIVES ............................................................................................................................................ 70
RELATED MATTERS OF PROOF ...................................................................................................................................... 71
1. PROOF OF DEATH AND RELATED MATTERS ........................................................................................................................ 71
a) Generally ....................................................................................................................................................................... 71
b) The Common Law .......................................................................................................................................................... 71
c) Special Statutory Provisions .......................................................................................................................................... 72
d) Administering Property Under Absentee Act................................................................................................................. 72
e) General Statutory Reform .............................................................................................................................................. 72
Re Miller (1978) ON HCJ ............................................................................................................................................................. 72
2. PROOF OF LOST WILLS ....................................................................................................................................................... 73
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Lefebvre v Major (1930) SCC....................................................................................................................................................... 73
Re Oliver Estate (1987) ON Surr. Ct............................................................................................................................................. 73
REVOCATION OF A WILL .................................................................................................................................................. 75
1. INTRODUCTION ................................................................................................................................................................... 75
2. VITIATING FACTORS ........................................................................................................................................................... 75
Hubley v. Cox Estates (1999) NS SC ............................................................................................................................................ 75
3. REVOCATION BY OPERATION OF LAW ................................................................................................................................ 75
a) By Marriage .................................................................................................................................................................. 75
i) Generally ........................................................................................................................................................................................ 75
ii) Validity of Marriage...................................................................................................................................................................... 75
Banton v. Banton (1998) ON Gen. Div. ........................................................................................................................................ 76
iii) Will Made in Contemplation of Marriage .................................................................................................................................... 76
Re Coleman (1976) Chancery Div. ............................................................................................................................................... 76
iv) Election ........................................................................................................................................................................................ 76
Re Browne and Dobrotinic (1958) ON HCJ ................................................................................................................................. 76
v) Powers of Appointment ................................................................................................................................................................. 77
Re Gilligan (1950) Prob. Div. ....................................................................................................................................................... 77
b) By Dissolution of Marriage ........................................................................................................................................... 77
Re Billiard Estate (1986) ON HCJ ................................................................................................................................................ 78
4. REVOCATION BY ACT OF TESTATOR ................................................................................................................................... 78
a) Generally ....................................................................................................................................................................... 78
b) By Subsequent Document .............................................................................................................................................. 78
Re Davies (1928) Chancery Div. .................................................................................................................................................. 78
c) By Physical Act .............................................................................................................................................................. 79
i) Generally ........................................................................................................................................................................................ 79
ii) By the Testator .............................................................................................................................................................................. 79
Leonard v. Leonard (1902) Prob. Div. .......................................................................................................................................... 79
iii) By Another................................................................................................................................................................................... 80
Delack, Hickey and Camp v Newton (1944) ON Surr. Ct............................................................................................................. 80
5. ALTERATIONS IN A WILL .................................................................................................................................................... 80
Re Douglas Estate (1986) NFLD SC............................................................................................................................................. 80
Re Manuel (1960) AB TD ............................................................................................................................................................. 81
6. CONDITIONAL REVOCATION ............................................................................................................................................... 81
Re Sorenson (1982) BC SC ........................................................................................................................................................... 81
Re Southerden (1925) CA ............................................................................................................................................................. 81
Re Formaniuk (1963) .................................................................................................................................................................... 81
Re Jones (1976) UK CA................................................................................................................................................................ 81
7. REVIVAL OF REVOKED WILLS ............................................................................................................................................ 82
Re Ott (1970) ON Surr. Ct. ........................................................................................................................................................... 82
ADMINISTRATION OF AN ESTATE ................................................................................................................................. 83
1. DUTIES OF PERSONAL REPRESENTATIVE ............................................................................................................................ 83
2. PAYMENT OF DEBTS ........................................................................................................................................................... 83
a) Payment of taxes ............................................................................................................................................................ 83
b) Payment of debts other than taxes ................................................................................................................................. 84
3. DISTRIBUTION OF ESTATE ................................................................................................................................................... 84
Re Schippman Estate (1999) BCSC .............................................................................................................................................. 84
4. OBTAINING GRANTS (PROBATE) ......................................................................................................................................... 85
5. PLANNING CONSIDERATIONS .............................................................................................................................................. 86
Re Eurig (1998), SCC ................................................................................................................................................................... 86
Granovsky Estate v. Ontario (1998) ON Gen. Div. ....................................................................................................................... 87
IMPACT OF FAMILY LAW ACT ON ESTATE ADMINISTRATION ........................................................................... 88
1. SCOPE ................................................................................................................................................................................. 88
2. PROVISIONS FOR EQUALIZATION UNDER THE FAMILY LAW ACT........................................................................................... 88
a) Election for NFP – Spouse’s Perspective ...................................................................................................................... 90
Rae v. Rae (1987).......................................................................................................................................................................... 91
Varga Estate v. Varga ................................................................................................................................................................... 91
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Re Bolfan Estate (1992) ON Surr. Ct. ........................................................................................................................................... 91
Panangaden v. Panangaden Estate (1991) ..................................................................................................................................... 91
b) Election for NFP – Personal Representative’s Perspective .......................................................................................... 92
Rondberg v. Rondberg (1989) ....................................................................................................................................................... 93
Ward v. National Trust Co. (1990) ................................................................................................................................................ 93
3. INEQUITIES SURROUNDING EQUALIZATION ........................................................................................................................ 93
4. DEDUCTIBILITY OF DEBTS (ESTATE LIABILITIES) ............................................................................................................... 94
Starkman v. Starkman (1990) ON CA .......................................................................................................................................... 94
Bobyk v. Bobyk ............................................................................................................................................................................ 94
5. SPECIAL STATUS OF MATRIMONIAL HOME ......................................................................................................................... 94
Whaley Estate v Whaley (1993) ON Gen. Div.............................................................................................................................. 95
Fulton v Fulton (1993) ON CA ..................................................................................................................................................... 95
SUPPORT OF DEPENDANTS .............................................................................................................................................. 96
1. INTRODUCTION ................................................................................................................................................................... 96
2. THE APPLICATION............................................................................................................................................................... 96
Re Dentinger (1981) ON Surr. Ct. ................................................................................................................................................ 96
3. THE APPLICANT .................................................................................................................................................................. 97
Re Cooper (1980) ON Div. Ct....................................................................................................................................................... 97
4. ADEQUACY OF SUPPORT ..................................................................................................................................................... 97
Re Davies (1979) .......................................................................................................................................................................... 98
5. SUPPORT ORDERS ............................................................................................................................................................... 98
Maldaver v. Canada Permanent Trust Co. (1982) ......................................................................................................................... 99
6. ATTEMPTS TO EVADE SUPPORT OF DEPENDANTS ............................................................................................................... 99
Moores v. Hughes (1981) ON HCJ ............................................................................................................................................. 100
ESTATE ACCOUNTS AND EXECUTOR’S DUTIES AND FEES ................................................................................. 101
1. ESTATE TRUSTEES ............................................................................................................................................................ 101
a) Duties .......................................................................................................................................................................... 101
b) Passing Accounts ......................................................................................................................................................... 101
EXECUTOR COMPENSATION .................................................................................................................................................. 102
Re Toronto General Trusts Corporation (1905) ON SCJ ............................................................................................................ 103
SOLICITOR’S FEES, DUTIES, AND RESPONSIBILITIES........................................................................................... 104
1. SOLICITOR’S FEES ............................................................................................................................................................. 104
2. OBLIGATIONS OF SOLICITOR TAKING INSTRUCTIONS FOR A WILL .................................................................................... 104
Re Worrel (1970) ON Surr. Ct. ................................................................................................................................................... 104
Hall v. Fredrick (2001) ................................................................................................................................................................ 104
3. DUTIES OWED TO BENEFICIARIES ..................................................................................................................................... 105
Whittingham v Crease (1978) BC SC ......................................................................................................................................... 105
Ross v Caunters (1978) UK ........................................................................................................................................................ 105
White v Jones (1995) HL ............................................................................................................................................................ 105
Lucas v Hamn (1961) .................................................................................................................................................................. 106
Smolinski v Mitchell (1995) BC SC ........................................................................................................................................... 106
Clark v. Bruce Lance................................................................................................................................................................... 106
Rosenberg Estate v. Black (2001) ON SCJ ................................................................................................................................. 106
ESTATE LITIGATION ........................................................................................................................................................ 108
ADR ..................................................................................................................................................................................... 110
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Terminology
Bequeath – historically, referred to gifts of personalty.
 today, there is no substantive difference between the terms devise and bequeath since real and personal property are
treated the same way on death for the purpose of administration.
Codicil – a testamentary documents which supplements, explains or modifies a will bearing an earlier date.
 Normally used for minor amendments. If major changes are required, a new will is customary.
 Wills and codicils need not be of the same form, e.g., a holograph codicil can amend an attested will.
 SLRA defines a codicil as will: the same requirements apply to codicil as wills. If a will is invalid, so is the codicil
Devise – historically, referred to gifts of real property.
Executor/Executrix – the personal representative of the deceased who will administer the estate.
 In some cases, the court will appoint an administrator for a person who dies intestate or where the person named by
the will cannot act as executor.
 Formerly, a person who died intestate would have an administrator appointed
 The new Ontario Rules now call such people “estate trustee” (with or without a will).
 New language eliminated the distinction between an executor, a trustee (who would only have a role if there were
trusts to administer), and an administrator. In practice, you still need to be specific in a will.
 Can also have an “estate trustee during litigation”
Law of Succession – all transfers of property from one generation to another.
 includes wills, intestate succession, and inter vivos gifts (will substitutes).
Law of Wills – is a subset of the law of succession.
 law governing intergenerational transfers of property made by a will.
 concerned with the validity of dispositions that take effect on a person’s death and are contained in his or her will.
Law of Intestacy – the law governing the after-death disposition of property in absence of a valid will.
Personalty – all non-real estate assets.
Probate – a process to prove the originality and validity of a will.
 formerly one would get a certificate of probate. Under the SLRA, it is now called “a certificate of appointment of
estate trustee with/without a will.”
Testamentary Freedom – a fundamental principle: the right to the right to determine who is to receive your assets when you
die
 legal limits on this: surviving spouse and dependants
Testator/Testatrix (testators, testatrices) – the deceased male/female who made the will.
 if the will is valid and is upheld after the testator’s death, he or she is said to die testate.
Will – The written statement by which a person instructs how his or her estate should be distributed upon death.
 Only has effect upon death.
 During the person’s lifetime the will is revocable.
 Cannot be oral.
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Forms of Testamentary Dispositions
1. Nature of a Will
Aspects/Requirements:
 Must be in writing.
 Takes effect only upon death
o Cannot take effect before death.
o Cannot take effect after death – i.e., cannot stipulate that the will takes effect 5 years after death.
 Ambulatory, i.e., revocable up until the time of death (short of incapacity)
o spes successionis: legal rights do not arise when will is made; create only the hope/expectancy of an
interest in the property of the testator.
o Since a will does not take effect until the testator’s death, it follows that until the testator is dead, the
persons named in the Will as beneficiaries do not own the property the Will purports to give to them.
 Deals only with dispositions of property
o Cannot control how body is disposed of.
o When a will talk about assets, it means assets at the time of death
 Has the effect of disposing of assets (or liabilities) acquired between the date of the will and the
date of death
o May, and should name an executor.
o Direction to executors that they shall employ a named person as the estate’s solicitor is not effective.
o Can designate beneficiaries of certain assets—insurance, pensions
o Guardianship of children
 Formal validity: must comply with statutory requirements.
 animo testandi: A will must be made with the necessary testamentary intent; i.e. a person must intend to create a
valid will must intend to dispose of assets upon death i.e. “this is my last will and testament”
o Rejection of Wills which were obtained by fraud, duress or undue influence.
o Rejection of Wills made while the testator lacked the necessary mental capacity to make a Will.
o Expressions of the testator must be imperative in form.
Notes:
 Contradictory nature of making a will—anticipates future events, while being made in the event of dying tomorrow.
$
Real estate

Personalty



Residue- takes into
account assets acquired
between date of will and
death
Debts
Trusts may be used in the case of lifetime gifts, minors, disabled beneficiaries
Not all of the testator’s wishes are legally binding  some are merely wishes
Power of appointment: the authority granted from one person to another to direct the disposition of the first
person’s assets. There is a body of law dealing with the critical distinction between creating a valid power of
appointment and completely abdicating responsibility for disposal of one’s assets.
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o
i.e. appointing trustee for a lifetime trust, but failing to complete the wish by failing to say what happens
once the beneficiary dies. Could get around it by saying “on her death, I give to my spouse the power of
appointment the residue such as my wife decides any one or more of my children.”
2. Will Substitutions
Reasons for using will substitutes:
 By making a gift during life, a person sees the benefit their gift brings.
 Tax advantages: under the Income Tax Act, there is a deemed disposition of assets immediately preceding death.
Therefore, people may want to make gifts prior to death to minimize taxes.
 Avoid probate taxes (estate administration taxes)
 Evade obligations to one’s dependants.
 May be able to avoid creditor claims
Disadvantages of using will substitutes:
 Involve a disposition of property which the grantor cannot reverse unless they retain a power to that effect. Can
cause difficulties later if the grantor’s financial needs change, or if relationships change, such as marriage
breakdown.
 You will want to have a source of liquidity in the estate to fund cash gifts or payment of debts
 Tax disadvantages: tax consequences take effect immediately
Types of will Substitutes
1) Inter vivos Gifts – Gifts made while the donor is living (donor parts with their property absolutely).
 For gift to be valid, donor must have had an animus donandi (given it to someone)
 Not very popular because of the immediate tax consequences. Even if you give a gift, the donor is treated as
though he or she sold it and capital gains taxes may be owed.
 Capital gains taxes apply to gains on capital property: e.g., real estate and securities. This does not apply to GICs,
term deposits, etc. as they bear interest and do not go up in value (note: there may still be some adverse tax
consequences).
2) Gifts (Donatio) Mortis Causa – An inter vivos gift of personalty (not real property) made in contemplation of, although
not necessarily in the expectation of, the donor’s death (a “deathbed gift”)
 Subject matter of the gift must be delivered to the donee (constructive delivery permitted in appropriate
circumstances- eg. Giving keys to a safe deposit box).
 While gift takes effect immediately, it is dependant for its absolute effect upon the death of the donor. Hence, donor
can revoke the gift while living. Moreover, it is revoked automatically if donor recovers from the feared peril.
 Doesn’t have to be in writing.
Example: X goes on an African safari. X contemplates being killed by a lion. X gives watch to Y in contemplation of death.
If X dies, Y keeps watch.
o If X is killed by a tiger, the gift will probably still take effect even though contemplated death from a lion.
o If X is killed in a plane accident going over to Africa, the gift will likely not take effect.
 NOTE: there is some haziness in the case law, especially with respect to how closely related to the feared peril the
death must be to constitute a valid gift mortis causa.
 A gift mortis causa is like a conditional gift – to become an absolute gift, the donor must die.
3) Inter vivos Trust – One can establish a trust as an alternative to a will. The trustee will manage the trust for the benefit
of the beneficiary. People may establish trusts in order to avoid creditors and reduce the value of their estate for tax
purposes. May also attract immediate income tax consequences for the settlor.
 Parties to the trust: settlor, trustee(s), and beneficiaries
9
4) Joint Tenancy – There is right of survivorship with a joint tenancy; not so for tenants in common.
 If one joint tenant dies, their whole interest passes to the other tenants automatically. In a tenancy in common, each
person has a half interest and this deceased’s interest must be disposed by other means.
 Necessary to expressly state in the deed/document that the title is taken in joint tenancy, otherwise a tenancy in
common is taken.
 A joint account to which only one person deposits money is another method whereby a person may effectively pass
moneys to another on his or her death without making a will. The gift is revocable simply by the expedient of
withdrawing the money.
 Significant increase in litigation on this issue since the increase in probate taxes in 1992: did the transferor intend to
benefit the second person, or simply to name the second person as a trustee in an effort to minimize probate taxes?
5) Life Insurance, RRSPs and Pension Plans – there are certain types of assets/investments where you can designate a
beneficiary (e.g. pensions, RRSPs, life insurance policies, etc.). For most purposes, the law treats the situation as
though the benefit flows directly to the named beneficiary and it will not go through the estate.
 Two ways to name a beneficiary:
1. on documentation itself (e.g. the pension form)—s. 51(1)(a) SLRA
2. in a will – s. 51(1)(b)
 The degree of mental capacity required to name a beneficiary is the same as for making a will.
 Note: the last designation, whether by will or by the document is determinative—s. 52((2)
 One of the main advantages of these assets is that it permits you to avoid the claims of your creditors. If you
designate a beneficiary other than your estate, the proceeds of insurance do not form part of your estate, but pass
directly to the beneficiary.
 Creditors claims have encroached on the assets to a certain degree. Insurance contracts receive better protection
than pensions. RRSPs are creditor-proof according to most recent case law, probably for policy reasons (intended to
provide a more secure type of financial benefit for beneficiaries)
3. Tax Consequences on Death


No such thing as a “death tax” or “estate tax” in Canada
At provincial level: estate administration taxes (probate taxes)
Federal Level: in 1972 new regime dealing with capital gains taxes came into effect in Canada
 Capital gains tax is the only federal tax the arises as consequence of death
 What are capital gains?
 The increase in value of capital property
 Two major types of capital property
1) Real estate (except principle residence- only one allowed)
2) Shares in a company (publicly traded or private)
 Preferential rate: only 50% of the capital gain is taxable, and it is taxed as income
Example
 Buy shares at $10, sell at $20
 Dividends are taxed as income
 Capital gain only calculated on the difference between the cost and the amount gained at sale ($10)
 There can also be capital losses: shares valued
General Rule: (ITA) an individual is deemed to have disposed of his or her assets immediately before death (deemed
disposition), and received proceeds of sale equal to the fair market value of those assets.
 Rationale: You would have had to pay tax on those assets if you were alive.
Exception: Where that asset is:
a) Transferred outright by will
b) Left in a testamentary trust to a spouse with specific conditions (qualifying spouse trust), terms of trust must say:
10
a.
b.
During the spouses lifetime, all the income that may be earned from the assets MUST be paid to the spouse
(not reinvested)
During spouses lifetime, no one other than my spouse may be entitled to benefit from the capital (trustees
can’t encroach on the asset- can’t sell them or transfer them to anyone other than the spouse
…to a surviving spouse (includes a common law spouse), the payment of the capital gains tax is deferred until
 He/she sells them
 Or dies
In the case of the spouse trust, the original testator’s estate pays the capital gains tax on the assets, not the spouse
RRSPs
 A vehicle by which income accumulates tax-free. By end of the year in which you turn 69, you must convert into an
annuity (RIF) and bring that $ back into income. This normally takes 20 years or so, so what happens if you die
before that?
 For the year of death, your estate is deemed to have received the rest of the income, and taxed as if it is income.
11
INTESTATE SUCCESSION
1. Introduction
What happens if a person dies without a will or the will is invalid?
 If a will is invalid and a prior valid will exists, the previous will takes effect (partial intestacy).
 If there is no will or the only existing will is invalid will, property will pass on intestacy.
 As long as there is one last remote relative still alive, the government will not get a thing.
What is intestacy?
 Condition of dying without a valid will.
What is partial intestacy?
 Deceased’s will is valid with respect to the disposition of some but not all of his or her property.
 Person leaves a valid will but fails to dispose of the entire estate, whether intentionally, through inadvertence, or
because residuary gifts in the will are void.
o Examples: fail to include a residual clause; set up a trust for a spouse, but fail to establish what happens to
the trust assets when the spouse dies
 Therefore, can have complete and partial intestacy. Will governs the distribution of the deceased’s estate to the
extent that it is valid and effective and the statute governs the remaining portion of the estate.
How are assets distributed?
 Section 2(1) of the Estates Administration Act states that when a person dies, all his property, except that held in
joint tenancy, vests in the person’s personal representative in trust to pay debts and funeral expenses and then to be
distributed to the beneficiaries.
2. Distribution on Intestacy
General Rule:
 Where a specific gift fails, the gift falls to the residue—s. 23 SLRA
 Where a gift of residue fails, the gift goes out according to the rules of intestacy (s. 23 SLRA).
Statutory provisions governing distribution of an intestate estate: Part II of the Succession Law Reform Act.
Three groups of potential “takers”:
1. Spouse
2. Issue (lineal descendants: children, grandchildren)
3. Lineal ascendants and collaterals
a) The Surviving Spouse or Partner
i) When There Are No Surviving Issue
s. 44 of the SLRA
Where a person dies intestate in respect of property and is survived by a spouse and not survived by issue, the spouse
is entitled to the property absolutely


“Spouse” is defined s. 1 (1) and (2) as either legally married, believe they are married, or are in a polygamous
relationship (if celebrated in a jurisdiction where polygamy is sanctioned).
A same-sex legal marriage would be included
12


Only BC has been so progressive to include common law & same sex partners.
Black: Ontario legislation may change in the not too distant future to include common law and same sex partners.
ii) Preferential Share
s. 45 of the SLRA (preferential share for spouse where spouse and issue survive):
(1) Subject to subsection (3), where there are spouse and issue, and the deceased’s property (net value, after taxes
fees, etc.) is worth less than the amount of the preferential share, the spouse gets everything.
(2) Subject to subsection (3), where there are spouse and issue, and the deceased’s property is worth more than the
preferential share, the spouse is entitled to the preferential share absolutely.
(3) Despite subsection (1), where a person dies partially intestate and is survived by a spouse and issue, and,
(a) Where the spouse gets nothing or less than the preferential share under the will, the spouse gets an
amount up to the preferential share minus the value of any property received under the will.
(b) Where the spouse is entitled under the will to property having a net value of more than the preferential
share, subsections (1) and (2) do not apply.
(4) In this section, “net value” means the value of the property after payment of the charges thereon and the debts,
funeral expenses and expenses of administration, including succession duties (do not exist).
(5) Preferential share is the amount prescribed by regulation ($200,000).
Black:




The preferential share is $200,000.
(1) If intestate’s property is less than $200,000, the spouse gets it all.
(2) If it is greater, the spouse gets the first $200,000 as preferential share.
(3) On partial intestacy, the spouse gets the first $200,000 minus anything she got under the will. If the spouse
is entitled to more than $200,00 under the will, the preferential share doesn’t apply.
 E.g., will get $200k - $100k by will and intestate assets of $150k means that the spouse gets an additional $100k
from intestate assets and $50k to be distributed according to other rules of intestacy.
Policy Comment:
The preferential share is designed to recognize special importance of the spousal relationship.
iii) Distributive Share
s. 46 of the SLRA (distributive share – spouse and child, not issue):
(1) Where a person dies intestate and leaves a spouse and one child, the spouse is entitled to half of the residue
(excess, in this context) of the property in addition to any amounts received under section 45.
(2) Where a person dies intestate and leaves a spouse and more than one child, the spouse is entitled to a third of
the residue of the property in addition to any amounts received under section 45.
(3) Where a child has predeceased the intestate leaving issue living, the spouse’s share remains the same as if the
child had been living.
Comment:
After the preferential share, the surviving spouse is entitled to a distributive share, which varies with the
number of children or issue surviving. Distributive share is not reduced by any amount the surviving spouse
received under the will if there is a partial intestacy.
Note that here “child” is used, not “issue”.
Examples:
13
a) Spouse and Child
Spouse  $200,000 + 1/2
Child  1/2
b) Spouse and Child 1 and Child 2
Spouse  $200,000 + 1/3
Child 1  1/3
Child 2  1/3
c) Spouse and Child 1, Child 2, Child 3, Child 4
Spouse  $200,000 + 1/3
Child 1 – 4  1/4 of 2/3 = 1/6
d) Spouse and Child 1, Child 2 and Child 3 (deceased, with issue)
Spouse  $200,000 + 1/3
Child 1, 2  1/3 of 2/3 = 2/9
Child 3’s direct descendants  2/9 (divided between them)
Note: As stated, the property does not pass through Child 3’s estate. It passes on intestacy to Child 3’s children.
b) Issue
After the surviving spouse’s share has been paid, the intestate’s issue receive the balance of the estate.
s. 47 of the SLRA:
(1) Once the spouse’s share is paid, the rest of the property is divided equally among the issue of the nearest in degree
with living members.
(2) Where any issue of the degree entitled under subsection (1) has predeceased the intestate, this share is distributed
among his or her issue in the manner set out in subsection (1) and the share devolving upon any issue of that and
subsequent degrees who predecease the intestate shall be similarly distributed.
Thus, there are 3 steps that must be followed:
1) Identify the issue in the nearest degree who survive the deceased
2) Divide the estate into as many equal shares as there are living issue of the nearest degree and issue of the nearest degree
who predeceased the intestate but left issue who survived him or her
3) Give a share to each of the living issue of the nearest degree and divide a share among the living issue of those of that
degree who predeceased the deceased as if the latter had died intestate
Example 1
I died intestate and has 3 children, A, B and C. B and C have died. B has 2 children, D and E. C has 3 children, F, G, H.
I
A
B
(deceased)
D
C
(deceased)
E
F
G
H
After the spouse has been paid, A, B and C each get 1/3 of the estate. D and E will each get 1/2 of 1/3 (1/6) and F, G and H
will get 1/3 of 1/3 (1/9). See p 76-7 for other examples.
14
Black: Generally, the rules for intestacy provide for equality of distribution down lines of descent. There is an exception:
where no one at the first generation is alive.
Example 2
I
A
(deceased)
B
(deceased)
D
E
(deceased)
J
C
(deceased)
F
G
H
(deceased) (deceased)
I
K
Question: How many shares are created?
Answer: 4
Rules: Go to the 1st degree where someone is alive (3rd row). Create 1 share for each person who is alive and 1 share for each
person who is dead with issue.
Black: In this case, the rules of intestacy do not provide for equality down lines of secession. That is, I has three kids. A’s
line gets 1/4 of the estate and B 1/4 and C’s lines get 1/2 each. If C had been alive (or any of the people in the top row), there
would have been 3 equal shares created. There would thus have been equality down the lines of secession.
Comments:
 Children conceived before but born after the death of the intestate are treated by the SLRA and the statutes in the
other provinces as though they were born in the intestate’s lifetime and are, therefore, entitled to inherit on the death
of the intestate.
 Children of half-blood share equally with those of the whole blood (Re Lainson). See section 47 below.
 Persons born outside marriage and adopted persons have equivalent rights of inheritance with persons born within
marriage in Ontario and substantial rights elsewhere.
c) Lineal Ascendants and Collaterals
Ascendants are the direct ancestors of the intestate; collaterals are the issue of the ascendants other than the intestate and his
or her issue.
s. 47 of the SLRA reads:
(3) Where a person dies intestate and leaves no spouse or issue, the property shall be distributed between
the parents of the deceased equally or, where there is only one parent surviving the deceased, to that
parent absolutely.
(4) Where a person dies intestate and there is no surviving spouse, issue or parent, the property shall be
distributed among the surviving brothers and sisters of the intestate equally, and if any brother or sister
predeceases the intestate, the shares of the deceased brother or sister shall be distributed among his or her
children equally.
15

Black notes that case law defines brothers and sisters to include half-brothers and sisters (Re
Lainson)
(5) Where a person dies intestate and there is no surviving spouse, issue or parent, brother or sister, the
property shall be distributed among the nephews and nieces of the intestate equally without representation.
 “without representation” means that the dead nephews/nieces get nothing and, therefore, their
children get nothing.
(6) Where a person dies intestate in respect of property and there is no surviving spouse, issue or parent,
brother or sister, nephew or niece the property shall be distributed among the next of kin of equal degree of
consanguinity to the intestate equally without representation.
 Black: see p. 79 for table of consanguinity. Remember, that as long as you have the most remote
next of kin, the government will get nothing.
(7) Where a person dies intestate and there are no next of kin, the property becomes the property of the
Crown and the Escheats Act applies.
(8) For the purposes of subsection (6), degrees of kindred shall be computed by counting upward from the
deceased to the nearest common ancestor and then downward to the relative and the kindred of the halfblood shall inherit equally with those of the whole-blood in the same degree.
 Applies to all, not just subsection 6.
(9) For the purposes of this section, descendants and relatives of the deceased conceived before and born
alive after the death of the deceased shall inherit as if they had been born in the lifetime of the deceased
and had survived him or her.
In Summary:
1. If no spouse nor issue survive, the surviving parents take equally, or if one survives, he or she takes all.
2. If no parents survive, the brothers and sisters share equally with representation being permitted among brothers’ and
sisters’ children (i.e. nieces and nephews get as well).
3. If no brothers and sisters survive, the nephews and nieces take per capita (meaning that everyone gets an equal
share, i.e. 6 nephews and nieces surviving, each get 1 6th).
4. If no nieces and nephews survive, refer to the table of consanguinity and look for the nearest degree of living
relations, who take per capita
5. If no next-of-kin survive, the property escheats to the Crown.
3. Partial Intestacy
If a person dies partially testate and partially intestate:
1. The surviving spouse gets his or preferential share, but it is reduced by the amount, if any, given under the will
2. The intestate portion of the estate is distributed according to the rules of intestacy.
There are 2 ways in which there can be distribution in a will:
1. Equal shares per capita
1. Equal shares per stirpes
Equal Shares Per Capita:
Count up the number of issue that are alive (even grandchildren, great grandchildren, etc.) and they each get an equal share.
People conceived before the intestate’s death, but born alive after shall inherit as if they had been born in the lifetime of the
deceased.
Equal Shares Per Stirpes:
16
Achieves equality of distribution down lines of descent from testator
Per stirpes would be like intestacy except where no one is alive at 1 st level
Consider example 2 above. If this were a per stirpes distribution, D would get 1 share, H and I would get ½ each, E would
get ½ and J and K would get ¼ each
Note: each line is getting an equal 1/3 share.
Note: in line 2, it is not 1/3, 1/3, 1/3. It is 1/2, 1/2, 1/4, 1/4.
-
If example 2 were per capita:
o D would get 1/3rd
o E would get ½ of 1/3. J and K would get ½ of ½ of 1/3.
o H and I would get ½ of 1/3. G would get nothing because they are dead and have no issue.
17
Formal Validity of Wills
Types of Wills recognized in Ontario
1. Attested (witnessed)
2. Privileged
3. International Will
4. Holograph
Introductory Notes:
 Ontario courts strictly adhere to statutory requirements for formal validity even when the testator’s intentions are clear.
Rigidity of analysis, however, seems to be lessening over time.

Procedure for probating a will – may be either common or solemn.
o Common: an “over the counter” assessment by an official who decides that a will meets statutory requirements.
No trial, non-contentious proceedings.
o Solemn: a formal assessment by a court.
1. Attested Wills
a) Introduction
Broadly, an attested will is a document:
 Signed by the testator at the end; and
 Signed by two witnesses.
Succession Law Reform Act:
s. 3 A will is valid only when it is in writing.
 Cases define what “in writing” means written in some form legibly on something (e.g. videotape wills
are not valid).
s. 4. (1) Apart from holograph and privileged wills, a will is not valid unless:
(a) Signed by the testator (or by amanuensis (secretary), i.e. another at the direction and in the presence of the
testator) at the end;
(b) Testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the
same time; and
 “Acknowledge” could mean 2 things:
a. someone else signs on behalf of testator; or
b. testator acknowledges own signature if signed earlier with no witnesses.
o Testator must sign in the presence of two witnesses who are both present at the
same time, or
o Having already signed the will, to acknowledge the signature in the presence of
two witnesses who are both present at the same time.
(c) Two or more of the attesting witnesses subscribe (sign) the will in the presence of the testator.
 Witnesses do not necessarily need to be in the presence of each other.
s. 4. (2) Where witnesses are required by this section, no form of attestation is necessary.
18
s. 7 (placement of signature)
(1) Regular or holograph will is nevertheless valid if the testator’s signature, made either by him or her or the person
signing for them, is placed at, after, following, under or beside or opposite to the end of the will so that it is apparent
on the face of the will that the testator intended to give effect to the will by making this signature.
(2) A will is not rendered invalid if:
(a) the signature is not immediately after the end of the will;
(b) there is a blank space between the concluding words of the will and the signature;
(c) the signature,
(i)
is placed among the words of the testimonium clause or clause of attestation,
(ii)
follows or is after or under a clause of attestation either with or without a blank space intervening,
or
(iii)
follows or is after, under or beside the witnesses signatures
(d) the signature is on a part of the will (a side, page, etc.) so long as no disposing parts of the will are below it;
or
(e) there was space to put the signature on a previous page
(3) The generality of 7(1) is not restricted by 7(2), but a signature in conformity with ss. 4, 5 or
6 does not give effect to:
(a) dispositions or directions after the signature; or
(b) a disposition or direction inserted after the signature was made.
Notes:
 Court interprets these provisions very strictly. No judicial power to take a relaxed view of the statutory requirements.
 Witnesses must sign in the presence of the testator, but need not sign in each other’s presence (though this is best
practice).
 Case law establishes that witnesses do not need to see the testator sign, or need to know that it is a will. The witnesses
just need to see the testator sign something. Court will accept that it was a will and that it was a signature.
o Testator must see witnesses sign or to be able to see them sign something if he had turned his mind to it (e.g.
cannot be in another room).
o Executors must prove due execution. If they are unable to do so, the will fails.
 Example: if the evidence of the two witnesses conflicts about the order of signing and the evidence is
evenly balanced, the court cannot probate the will.
In Re Colling (1972), CB 264, note 4
Facts: The testator executed his will while in hospital. A patient in the next bed and a nurse were witnesses. After the
testator had started to write his signature in the presence of both witnesses, the nurse left and the testator completed
his signature in her absence. The other witness then attested the will in the presence of the testator while the nurse
was absent. The nurse then returned and the testator and the other patient acknowledged their signatures to her and
she signed as a witness.
Issue: Was the will validly executed?
Held: Invalid. Section 45(b) requires the testator to make or acknowledge his signature in front of witnesses. The Court
imposed an additional hidden requirement to section 4 – things must be done in that order: attestation must precede
subscription. It is not acceptable to have one witness see the testator sign and the testator acknowledge that the
signature is his signature to the other person. Acknowledgement must be in the presence of two witnesses, then they
can sign.
 Comment: This could have been rectified by: (a) witness could have waited, (b) everyone could sign over again, (c) the
first witness could have signed a second time.
 Black thinks this decision is ridiculous.
Relaxation of statutory requirements:
 Some provinces have more relaxed formal requirements (e.g. Manitoba, s. 23 of Wills Act). They say that as long as the
testamentary intention can be ascertained, any irregularities will not preclude a finding of validity.
 Substantial compliance provisions – permits the court to order that the document be effective as if it had been executed
in compliance with all the formal statutory requirements.
19
b) In Writing



In writing includes recognized forms of writing (handwriting, typescript, printing
Also includes shorthand, short forms, dots and dashes, and other “writing substitutes” (see below)
Statute does not stipulate the material the will is to be written on. Wills on eggshells and tractor fenders have been found
to be valid if required formalities are complied with.
Murray v Haylow (1927) ON CA
Issue: Does “in writing” include symbols representing writing?
Held: Probate granted. The “in writing” requirement is not so strict as to excluded short forms or dots and dashes.
c) Signed by the Testator or Amanuensis


Either the testator, or another person at the testator’s direction (amanuensis), can sign the will
o Often used if testator can’t write or is infirm
Comment: If someone else signs for the testator, the attestation clause should state that this is done in the testator’s
presence and at his request and also, if the testator is unable to read, that the will was read to the testator and that he
appeared to understand it
Re White (1948) NS CA
Facts: Testator had had a stroke. Lawyer read the will to him. He arguably nodded in response to questions and answered
“yes” where appropriate. Testator could not sign his mark and the lawyer helped him do it. The witnesses then
signed.
Held: Probate granted. For amanuensis, must show that the substitute signature was at the direction of the testator or there
was an acknowledgement. Assisted signature is just the same as and is just as good as non-assisted signature.
d) At the End of the Will

S. 4(1)(a) says the will is invalid unless signed at the end, but s. 7 allows some irregularities.
Re Riva (1978) ON Surr. Ct.
Facts: Witnesses signed on third page. Testatrix signed and dated a fourth page because there was no space on page 3. The
witnesses could not be located. There was no evidence of surrounding circumstances.
Held: Probate granted. Notwithstanding the irregular place of the signature, the will was valid because it was apparent on
the face of the will that the testatrix intended to give effect to the will. Applied general principles: (1) try to give
effect to T’s wishes (2) try not to let form invalidate where essential elements have been fulfilled.
 Comment: This is SLRA s. 7(2)(ii).
e) Attestation



s. 4 requires the testator to either:
o 1) sign in the presence of two witnesses who are present at the same time OR
o 2) if he has already signed the will, he must acknowledge the signature in the presence of two witnesses
who are present at the same time, THEN
The two witnesses must sign the will in the presence of the testator, though not necessarily in the presence of the other
witness
Case law establishes that witnesses do not need to see the testator’s actual signature, or need to know that it is a will.
The witnesses just need to see the testator write something. Court will accept that it was a will and that it was a
signature.
20
o

Testator must see witnesses sign or to be able to see them sign something if he had turned his mind to it (e.g.
cannot be in another room).
If evidence conflicts as to the order, the will won’t be granted probate
Chesline v. Hermiston (1928) ON HCJ
Facts: Testator enters store and asks a witness to sign document he said was his income tax return. Witness # 1 signs, then
leaves before being able to see testator sign, then testator signs, then witness #2 signs.
Held: Probate refused. Testator must make or acknowledge signature, then witness must subscribe. If someone signs and
then acknowledges it’s invalid.
f) Acknowledgement


In a case of acknowledgement, the witnesses do not need to actually see the testator’s signature, so long as they had an
opportunity to see it (in the case below, the will was folded so the witnesses did not have the opportunity to see it.
It is not sufficient to say “this is my will.” The acknowledgement has to be about the signature itself.
Re Gunstan (1882) CA
Facts: Witnesses did not know what document they were witnessing. Neither could see the signature or the writing above it.
Held: Probate refused. There is no acknowledgement if you cannot see the signature. But, so long as you see the testator
write something, it’s presumed to be the signature.
2. Privileged Wills



By statute, does not need to be executed with the same formalities as a formal will.
Made by a member of the armed forces while on active service or by a sailor while at sea or in the course of a
voyage.
The document does not need to be in your handwriting (as a holograph will does)
Section 5 – SLRA
5 (1) A person who is,
(a) a member of the Canadian Armed Forces placed on active service by National Defence Act;
(b) a member of any other naval, land or air force while on active service; or
(c) a sailor when at sea or in the course of voyage.
may make a privileged will if it is in writing, signed by him (or amanuensis) without any further formality or any requirement
of the presence of or attestation or signature by a witness.

Key: without any formality of witnesses.
o s. 5(2) and 5(3) deal with evidentiary issues to satisfy as military service.
Re Booth (1926)
Facts: Booth was mobilized, but not quite on duty when the will was made.
Held: Probate granted. Actively involved – sufficient for actual military service within Act.
3. International Wills



When a person has assets in a jurisdiction other than Ontario, the issue is whether the will will apply to their assets
becomes a conflict of law issue.
In conflict of law the rules are generally:
o WRT real estate, the law of the jurisdiction where the real estate is applies
o WRT personally, the law of the jurisdiction where the person is domiciled (ordinarily resides) applies
Possibilities for this situation:
21
o
o
Have the will recertified in the other jurisdiction
Create another will according to the law of the other jurisdiction dealing only with the assets in that
jurisdiction
o International will
Section 42 of SLRA, adopts 1973 convention.
 Goal was to create international standard that would be good in many jurisdictions apart from domestic standards
(universally recognized formalities of execution).
 Not universally adopted; consequently, not often used.
o Does apply to Alberta, Saskatchewan, Manitoba, Newfoundland, Nova Scotia, and Ontario (since
1978)
Requirements:
1) Must be in writing;
2) Two witnesses; and
3) Signed by an authorized person (Law Society of Upper Canada members). The authorized person must attach a
certificate that the formal requirements have been met.
4) The testator must declare that the document is his will, that he knows the contents, and sign the will in the
presence of the three persons
o Black: Does this requirement actually achieve its goals (actually mean that the testator know the contents)?
Probably not
5) Then, the three persons must attest by signing the will in the presence of the testator and each other.

NOTE: All witnesses and testators must be present while each other sign contrary to Ontario where each person must
only be present when the testator signs, but not in the presence of each other when they sign.
4. Holograph Wills
Requirements- Section 6 SLRA
 Must be wholly in the handwriting of the testator/testatrix
 Must be signed by the testator/testatrix
 No attestation by a witness is required
o The theory is that if the testator writes it all out, he knows what he is doing and that there is no undue
influence (not necessarily true).
Black: would love to take the case where you could prove that a testator typed the will keeping in mind the objectives of a
holograph will, shouldn’t it be a valid?
Additional requirements described below.
a) A Deliberate or Fixed and Final Intention


Testator must intend to make a will and give expression to his deliberate or fixed and final intention to do so (animo
testandi).
Often this expression is lacking, since this wills are generally informal
Bennett v Gray (1958) SCC
Facts: T said she’d like to give what little she had in letter to solicitor, noting that she would contact him later.
Held: Probate refused. A holograph will must be in the handwriting of the testatrix, but this is not sufficient. Must reveal a
deliberate or fixed and final intention to dispose of writer’s property upon death. In this case, the testatrix committed
to future consultation with the lawyer, but never did (showing abandonment of the original intention). The burden is
on the party claiming a document to be a will to show by the will’s contents or by extrinsic evidence that this
intention exists.
22
b) Use of Printed Wills


Problem with printed wills are that they are not entirely in the handwriting of the testator.
While it may be possible in some circumstances to admit only the handwritten portions to probate (requires dispositive
words), this is not automatic as Re Forest illustrates.
Re Forest (1981) SK CA
Facts: Deceased filled in the blanks of a printed will (Grand & Toy special) in his own handwriting. He signed, but did not
have it attested.
Held: Probate refused. Document not solely in the handwriting of the deceased. The handwritten words standing alone
must constitute a valid will – only the handwriting can be admitted to probate.
c) Formalities


Another person cannot sign a holograph will for the testator.
The requirement that the will be signed at the end DOES apply to holograph will.
Re Clarke (1982) ON Surr Ct.
Facts: Only place that T’s name appeared was at the beginning where it said: this is the last will of me …Clarke.
Issue: Does the “at the end of the will” requirement apply to holograph wills?
Held: Probate refused. Signature must be at the end. Western provinces can distinguish holographs wills, but Ontario
courts cannot. s. 7(3) SLRA includes holograph wills.
d) Holograph Codicils to Formal Wills


Holograph codicil may amend a formal will as long as it manifests a present intention to change the will; the expression
of a future intention to do so is insufficient.
Comment: Black says could interpret the words “I must change” as present or future. It is an imperative
o This decision is silly— think of the cost involved in litigating this (taken from the estate), when her
intentions are quite clear.
Re Kinahan (1981) ON Surr. Ct.
Facts: There was a printed will. A document found with it said “I must change this will. Leave out $500 to grandchildren.”
Written on back of envelope.
Held: Probate refused. Although a holograph codicil may amend a formal will, it must express a present intention change a
will. An intention to amend the will in future or at a future date will be invalid. Court interpreted this to be a future
intention, i.e., interpreted as a memorandum to herself to call up the lawyer to change the will or I must change this
will as a note to self.
f) Incorporation by Reference of Non-Holograph Documents


Doctrine of incorporation by reference permits an existing document to be incorporated into a will if it is properly
identified in the will.
Issue: Can a non-holograph document be incorporated into a holograph will?
Re Dixon-Marsden Estate (1985) Ont. Surr. Ct.
23
Facts: Tried to incorporate a handwritten document that complied with formal requirements for a holograph will into an
invalid typed will, i.e., to validate the whole thing.
Held: Doctrine of incorporation by reference contemplates the existence of a document that qualifies for probate,
independent of the document sought to be incorporated. The handwritten statements were a simple statement of
what the deceased thought she had already done (just a wish). Said in obiter: a holograph will must solely be in
testator’s handwriting, therefore, codicil must be of same form. Do you need a handwritten codicil?
 Comment: Black dislikes this interpretation.
g) Attested Will vs. Holograph Will:



Attested: strict compliance. Holograph: relaxed requirements.
As a means of satisfying voluntariness, lack of fraud, etc, the holograph will will satisfy safeguards/objectives
(holograph may be better at this).
In the case of an attested will, safeguards are intended to ensure voluntariness, lack of fraud, etc.
Objectives of the requirements of different types of wills (and why the requirements may not achieve those objectives):
 Awareness/understanding of contents
o Attested will: signature can’t ensure that the testator actually knows what is in it
o Holograph: the person wrote it, so there will be evidence that they were aware of the contents, but it doesn’t
speak to understanding, intention, or acknowledgement
 Prevention of fraud or forgery
o Holograph: Challengers can question the handwriting
o Attested: witnesses don’t prevent fraud—could be in collusion with signatory. You could end up with a
document with a signature that purports to be the signature of the testator and have two witnesses, so it looks
valid on its face
 Ensuring Mental Capacity
o Attested: Witnesses don’t say anything about this
o Holograph: less likely to be challenged on the basis of mental capacity, simply because they were able to write
it
 Prevention of undue influence
o Attested: Witnesses may prevent undue influence in the signing of the will, but say nothing about undue
influence in any other respect (i.e. including someone as a beneficiary)
o Holograph: nothing prevents undue influence in a holograph will
Black: if the requirements don’t actually achieve the objectives, why enforce them so strictly? We should allow a judge the
discretion to allow a will in substantial compliance
Example:
Is this will valid?
 Testator gets BC to type a will that he dictates, leaving estate to BC. Testator signs, as does one witness
o Only one witness, so not a valid attested will
o Not in testator’s handwriting, so not a valid holograph will
 Black makes application made to court trying to get the will recognized
o In retrospect, he would have kicked the client out the door—there was no case.
 The alleged closest next of kin was a great-grand niece
o T came from mainland China, so no birth certificate
o Niece had to prove she was related
o Otherwise estate escheats to the Crown- OPGT notified of their interest
 Case ended up being settled BC got 1/3, grandniece
 Moral of the story: we shouldn’t assume that the testator
 If BC was a crook, he should have signed as a witness, making the will a valid attested will the onus would be on him
to prove no undue influence (since he was a beneficiary  fairly easy to show BC would take everything
24
TESTAMENTARY CAPACITY
Validity: Procedural Issues





If the will appears valid on its face, the court will not challenge the will. A challenge requires an aggrieved party to bring
the validity into question.
A will is certified by filing with court, along with some other documentation.
o A will with no issue of validity is proved in common form
o A will being challenged must be proved in solemn form.
The process that brings the validity into question is simple: a one-page document called an objection, which includes:
1. Name of person who is challenging the will
2. Must show that the challenger has an interest in the estate (i.e. someone who would inherit on intestacy
if the will is found invalid)
3. Basis for challenge- an allegation only, no supporting evidence required at this stage
Historically, the costs of all parties involved in challenging the will were taken out of the estate, which encouraged
litigation.
As a lawyer, it can be difficult to separate a real issue of validity and an issue of a client just being unhappy about a will.
1. Introduction






Courts discourage litigation by making parties pay for costs more than they used to.
Formerly, courts were more amenable to taking costs came out of the estate.
A will is not valid unless the testator had the capacity to make it (age and mental).
A testator must have “knowledge of and approval of the contents” of a will (invalid if fraud or undue influence).
Onus of proof:
o Mental incapacity  those who wish to validate the will (usually the executors) must prove the
testator had capacity
o Undue influence  those alleging undue influence. This is technically true, but in reality it is a battle
back and forth.
Black: these cases help us understand the positive obligations on a lawyer when preparing a will and planning an estate
o The problems we see in estate litigation should give us some idea of the factors that need to be taken
into account- specificity of language
o We have an obligation to be sensitive to the interpersonal issues that arise from estate planning. How
will people feel if you name one child the executor? There is often a perceived lack of equality is the
disposition of assets. You need to enquire into the relationships involved in order to minimize the
possibility of litigation down the road.
Capacity
Age
Mental
25
Mental Capacity
Absence of
Undue Influence
voluntariness
Knowledge and Approval of
Contents
Absence of Fraud
2. Age Requirement



To make a valid will, a person must have reached the age of majority (Ontario = 18).
S. 8 of the SLRA says that a will is invalid if the person making it is under 18 but also provides some exceptions for this
general rule.
NOTE: The act of marriage automatically revokes an existing will. Unless another one is made, there will be an
intestacy.
o The exception is the will made in contemplation of marriage, and the will can provide that the will will be
valid whether or not the marriage takes place. Contrast this with s. 8(1)(b) which is a conditional will.
Section 8 – SLRA
8(1) A will made someone under 18 is not valid unless, at the time of making the will the person:
(a) is or has been married;
(b) is the person is contemplating marriage, the will states that it is made in contemplation of marriage to a named
person, and the person gets married to the named person (not valid until marriage to the named person);
(c) is a member of the Canadian Forces
(i)
that is referred to in the National Defence Act as a regular force, or
(ii)
while placed on active service under the National Defence Act or
(d) is a sailor at sea or in the course of a voyage.
(2) Must have a certificate of officer in custody of records saying person in 1(c) was on active duty etc (see pg. 167).
(3) A person who has made a will under subsection (1) may, while under the age of 18, revoke the will.
3. Knowledge & Approval



Person propounding a will must show that the testator/testatrix had knowledge and approval of the contents of their will.
Aided by rebuttable presumption that testator knew and approved the contents once propounders prove that the will
was properly executed after it was read to or by the testator and the testator appeared to understand it.
o Presumption is rebutted if it is shown that the testator did not really understand the contents of the will even
though it was read to or by the testator.
o If there are suspicious circumstances, such as when a beneficiary has prepared the will or has been
instrumental in having the will prepared, the propounders must prove knowledge and approval
affirmatively.
o Knowledge & approval is separate from testamentary capacity and undue influence.
Consequences of lack of knowledge and approval: May void entire will, or just part that was not understood and probate
the rest, as seen in Russell v. Fraser (page 169 Case Book)
26
4. Mental (Testamentary) Capacity
a) Introduction





Person of unsound mind cannot make a will.
o Time for assessing capacity:
 When will signed.
 Exception to this general rule occurs when the deceased had capacity when drafted it, and later
lost capacity. Here, a will is valid if the person knew this is a will and that it was made at their
direction.
Each case must be decided on its own facts
Whose opinion counts:
o Scientific assessments are not determinative.
o Views of people who are familiar with the testator/testatrix may be held in higher regard by courts than
doctors and lawyers in some circumstances.
Note: medical definitions and tests of mental capacity are distinct from testamentary capacity.
Testamentary capacity is a very high level of capacity, higher than the test for many other legal situations, such as
marriage or entering into contracts
Question: Can you/should you/must you do a will for a client who you think does not have the required testamentary
capacity?
 Recent CA decision: as a lawyer, you won’t be held negligent if you decide to do the will, or not to do the will so long as
you can offer up a reasonable explanation for coming to the conclusion that you did. You should have good
documentation to back up your decision.
 The black and white cases are easy, but the majority fit into a vast grey area.
 Look for age, relationships, time frames, how radical a departure from previous wills as indicators that you alert
yourself to potential concern and dealt with it in some way (such as asking questions).
o A typical situation involves an elderly person who may have the early onset of Alzheimer’s they may have
good days and bad days, remember some things but not others. There is a greater potential for undue influence
in this type of person due to dependency.
Banks v. Goodfellow (1870), CB 170
Facts: Testator was confined to a lunatic asylum and felt that he was pursued by a dead guy. But, from a financial point of
view, he managed his estate well and there was testimony that he was rational at the time of drafting.
Held: Two-part test for capacity:
Must be of general capacity to draft the will:
1. “Shall understand the nature of the act and its effects”
 Appreciate that you are making a will
 Appreciate the consequences of the will
2. “Understand the extent of the property that they are disposing”
 Know what property is and about what it’s worth.
 May not have mental capacity if you think your downtown property is only worth $25,000
3. “Shall be able to comprehend and appreciate the claims to which he ought to give effect”
 To understand moral and legal obligations to consider in your will.
 Appreciate those who may have a legal or moral claim against the estate but don’t actually need to provide for them,
must know who they are. So long as have necessary Banks capacity, Will won’t be struck down just b/c someone with a
moral claim against the estate is excluded (Leger v. Poirier)
“With a view to the latter object [i.e., people’s claims] that no disorder of the mind shall poison his affections, pervert his
sense of right or prevent the exercise of his faculties”
 The law distinguishes between two types of unsound mind in the context of capacity to make a will: (1) general insanity,
whether caused by disease, congenital defect or advancing age; and (2) insane delusions.
27
Must be free of insane delusion:
“No insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind
had been sound, would not have been made”
Result: He had general capacity although he suffered from delusions. His delusions did not influence his gifts therefore
suffering from delusions was immaterial.
b) Mental Capacity – General Insanity
Banks criteria: the test for general insanity
 Test for mental capacity (sound disposing mind):
1. Understand the nature of the act;
2. Understand extent of the property;
3. Understand moral claims of dependants and the reasons for excluding any of those who have such a
claim.
 Burden of proof:
o Rests with person propounding the will to show capacity.
o Where the will represents a significant departure from previous will(s) and there is a history of impairment of
mental capacity  the burden of proof and the amount of evidence required to prove capacity is considerably
increased (Re Davis).
Leger v. Poirier (1944) SCC
Facts: Husband dies, testatrix later dies at 79. Wife operated the family business after husband died. She turned it over to
her son Hector (who moved in with her). Evidence (from the grandniece that Hector hired) suggested that testatrix
did not want Hector to move in with her, that he controlled who she could, and locked the door contrary to her
wishes. Her health began to fail. Evidence suggested that Hector suggested legacies and the testatrix would repeat
them and agree. The lawyer making the will testified that she was in a feeble condition.
Held: Testatrix lacked capacity. Onus to show capacity is on those propounding the will. They must show will was the
product of a “free and capable” mind. There were doubts and onus was not met.
 “Merely to be able to make rational responses is not enough, nor to repeat a tutored formula of simple terms. There
must be a power to hold the essential field of the mind in some degree of appreciation as the whole, and this I am
satisfied was not present here.”
Re Davis (1963) ON
Facts: Mrs. Davis’s husband died of cancer and she underwent a complete dispositional change at about 60. Became
infatuated with a man who lived in a shack (“Ted’s castle on the hill”). Took her clothes off all the time. Forgot the
taps were left on. Spoke compulsively about adopting a child and ridding the world of cancer. Attitude towards
family and friends changed. She’d previously made four wills giving money to family; she got a new lawyer and
made new will giving money to a nonexistent charity (cancer society she thought was in existence). Lawyer and
doctor thought she had capacity; family and friends did not.
Issue: Did the testatrix have capacity to make the will? Did personality change show lack of capacity?
Held: Will invalid for lack of capacity.
 The trial judge did not err in preferring the evidence of the lay witnesses (as opposed to evidence of lawyer and
doctor).
 TEST: Where the will represents a significant departure from previous will(s) and there is a history of impairment
of mental capacity  the burden of proof and the amount of evidence required to prove capacity is considerably
increased.
o Still BOP…but enhanced. More evidence will be required to get over the BOP line.
 In addition, where a gift is made to charity that no longer exists or the wrong name is used or it is left to a charity for
certain activities that they no longer perform, can use Cy-Pres Doctrine to show testator had general charitable
intentions, so money should go to another charity with similar activities.
28
Candido v. Ciardullo (1991) BCSC
Facts: Testator made a will in September 1989. In August, he was diagnosed with Alzheimer’s. Evidence showed that his
lawyers were aware of the disease, but friends and family still felt that he had capacity to sign.
Held: Testator had capacity. This case shows us, once again, that medical evidence is not determinative.
 Also shows the role of the solicitor: should take detailed notes regarding demeanour and answers to questions, review the
will carefully with testator, and then your opinion will carry some weight as evidence
c) Mental Capacity – Insane Delusions



There may be situations where the testator is lucid some of the time, but suffers from insane delusions.
Insane delusion is an irrational belief in a state of facts which are not true.
Recall Banks v. Goodfellow, where the guy made the will when not affected by insane delusion, although he suffered
from them. Court made two important findings in this case:
o First, unless delusions influence the will, it will not be held invalid.
o Second, the court found the will rational as it left the testator’s property to a niece who lived with him and who
was the object of his affection.
O’Neil v. Royal Trust (1946) SCC
Facts: Husband of testatrix died in 1919. He left certain things to his wife in the will, including a monthly payment (in
trust). He gave her a power of appointment to appoint the residue of his estate. He requested that she leave it to his
sister and grandnieces. She made a will in 1920 carrying out her husband’s wishes, but changed it in 1927 and back
again in 1929. In 1929, she admitted herself to an insane asylum. There was a variety of evidence: she was
mentally clear/alert, she was “peculiar,” she suffered from delusions and hallucinations. In 1930, the court finally
declared her incapable of handling her affairs. The doctor distinguished her mental faculties in 1930 from the
previous year (1929) and said that just one year prior, she was OK.
Held: Valid will. The hallucinations and delusions are not connected with the motives & reasons for making the will in
question
 The mere existence of certain delusions will not invalidate will unless the delusions brought about the will or exerted
an “actual and impelling influence” on the making of the will.
 What is important in determining whether the delusions had an effect of the disposition: 1) nature and subject matter of
the delusions 2) relation between delusions and disposition in the testator’s mind
 Comments: Courts use certain catchwords when they find a testator to have capacity despite contradictory evidence:
“go below the surface” and consider whether the person is a “free and capable testator.”
 If anyone has just a shred of evidence that someone is mentally incapable, this will go from proving a will in common
form to proving a will in solemn form.
d) Onus of Proof
i) Generally
1.
2.
3.
4.
5.
In ordinary cases, if a will is validly executed, there is a presumption of capacity.
Next step is for someone to allege undue influence, lack of capacity, or lack of knowledge and approval.
Onus of proof of capacity and knowledge and approval of contents lies with those propounding the will (typically the
executors). Must establish a “free and capable” testator (Barry v. Butlin).
 Capacity is proved on a balance of probabilities.
Onus of proving undue influence is on those who allege it.
 It’s an affirmative defence to the validity of the will; it must therefore be pled and proved.
The onus can only be determinative where the evidence is evenly balanced. (Robins v. National Trust Co.)
Black: In reality, the more evidence that those propounding the will can offer in proving capacity and knowledge and
approval, the harder it will be to prove undue influence (and vice versa), so the onus is less black and white than the law
suggests.
29


Will proved in common form: no issues of capacity raised by the parties or the will itself, no trial, non-contentious
proceedings.
Will proved in solemn form: one of the parties raises the issue of capacity or undue influence and a trial is required to
prove capacity on the balance of probabilities.
ii) Suspicious Circumstances
Introduction:
 Suspicious circumstances provide evidence that: a) there was undue influence b) the testator lacked mental
capacity.
 The finding of suspicious circumstances does not entail a finding of lack of mental capacity or undue influence.
o Generally, the three are pleaded together.
 Must ask: what kind of suspicion do these circumstances create?
o About capacity of the testator?
o About whether there was undue influence?
 Often found when somebody who stands to benefit from the will helped the testator prepare it (especially if they get a
greater or disproportionate share of property).
 Examples:
o Beneficiary telling lawyer what to do
o Lawyer receives gift.
o Testator has three children and one child takes testator to draw up will and ends up with the bulk of the
estate.
 Suspicious circumstances alone will not invalidate a will. They just lead to other issues such as undue influence, etc.
Not a ground, in and of itself, a ground upon which a will can be struck down
o Circumstances surrounding the process of preparation of a will are suspicious in some way. The
circumstances will have to be satisfactorily explained before the will is validated.
 Applies even where the will is very rational - must explain away the circumstances before it will be validated.
 The extent of proof required varies with the circumstances of the case
Barry v. Butlin (1838) PC
Facts: Testator prepares his will when he was 76. He left ¼ of his estate to his lawyer, some to his butler and the remainder
to a friend. He left nothing to his family.
Test: If a beneficiary aids in the drafting of a will and takes benefit under it, this should “excite the suspicion of the Court,
and call upon it to be vigilant and jealous in examining the evidence in support of the instrument … it ought not
to pronounce unless the suspicion is removed and is judicially satisfied that [the will] was the true intent of the
deceased.” In other words, suspicious circumstances heighten scrutiny.
Result: Valid will. Other facts outweighed the suspicious circumstances raised by the lawyer taking benefit, i.e. testator had
a falling out with son and the two became estranged from him and other relatives.
Vout v. Hay (1995) SCC
Facts: Clarence Hay was murdered. At death, Hay was 81 and Sandra Vout was 29. Hay had made a will three years before
his died. It named Vout executor and made her the major beneficiary. Vout was at one time a suspect in his murder.
Clarence’s brother Carl Hay contested the will as he would have been the biggest beneficiary under intestacy. The
circumstances surrounding the drafting of the will were suspicious. Lawyer was Vout’s parents’ lawyer. Lawyer’s
secretary says Vout gave instructions about legacies (over the phone) and attended when the testator attested.
Secretary also says that when attesting, the testator hesitated and Vout reassured him that this was what they’d
agreed. Vout allegedly directed that the bill for fees be sent to her. Vout denies all of this. Vout provides some
conflicting evidence about whether she drove the testator into town or waited for him in the lawyer’s office.
Generally, however, the evidence was that the testator was alert, smart, independent, determined and not easily
influenced.
Procedural posture:
30

Trial judge found testator to have capacity; noted that there might be suspicious circumstances but distinguished this
case from circumstances found in the case law. Even if suspicious circumstances are present, there was no undue
influence and T did exactly what he intended.
 CA disagrees and orders a new trial. Trial judge discrepancies in the evidence CA said the TJ failed to properly consider
the issue of finding suspicious circumstances would cast the burden of disproving undue influence on the person
propounding the will (Vout) (this is source of the appeal).
Issues:
1) Do suspicious circumstances impose a standard of proof that is higher than the ordinary civil standard?
2) Does proof of a “free and capable testator” require the propounder of the will to disprove undue influence?
Held:
General rule – Person propounding the will has the burden of showing: due execution; knowledge and approval of the
contents of the will and capacity of testator. However, once propounder proves due execution, it will generally be
presumed that the testator knew and approved of the contents of the will and had the capacity to make it.
Are there suspicious circumstances? Where suspicious circumstances are raised, the standard of proof is the civil standard
– balance of probabilities. Suspicious circumstances may be raised by:
1. Circumstances surrounding the preparation of the will;
2. Circumstances calling into question the capacity of the testator;
3. Circumstances showing the testator’s will was overborne by undue influence or
fraud.
 Question to ask: suspicion of what? (depends whether it is knowledge and approval, capacity, or undue influence)
Where suspicious circumstances are present: There is no presumption of knowledge and approval of contents of the will
or capacity of testator. Suspicious circumstances merely cast an evidentiary burden on the propounder. Where
suspicious circumstances relate to mental capacity, the propounder of the will resumes the legal burden of
establishing capacity. Does away with rebuttable presumption that is a valid will.
With respect to undue influence: Fraud is an affirmative defence (to validity of will) and the burden is always on the party
who asserts it.
 This is based on the policy concern that once formalities, K&A, and capacity have been proven, it would defeat the T’s
intention simply through an allegation of undue influence
Comments:
 Court says that the finding of suspicious circumstances does not affect who has the burden of proving undue
influence. The CA was wrong to suggest this.
 Black notes that finding of suspicious circumstances may heighten the task of proving capacity and therefore affect this
burden. (It’s a bit of a grey area)
 Black thinks the balance of probabilities stuff may just be a matter of semantics. One could argue that in reality, there is
a higher standard of proof than balance of probabilities.
 Supports principle of testamentary freedom (honouring testator’s wishes).
o Think of this for Re Davis case (leaving $ to cancer).
e) Date for Assessing Capacity
General Rule: Capacity is assessed at the time of signing the will. See exception below
Parker v. Felgate (1833)
Facts: Testatrix had sufficient mental capacity when the will was drawn, but not at the time of at which she executed it (i.e.
signed it). She did, however, have enough capacity to realize that this was a will she’d instructed the solicitor to
prepare.
Held: Valid will. Generally, capacity is assessed when the will is signed. This case provides an exception – capacity also
may be assessed at the time of drafting. When a person is competent, but loses capacity before signing, her
attestation is valid if she:
1. Has sufficient mental capacity at time of giving instruction;
2. Realizes that she is signing her will; and
3. That this will was made from her instructions.
31
Comment: The test seeks to achieve the same effect by virtue of knowledge of instruction and that this is the document
made based on that instruction.
Re Bradshaw Estate (1988)
Held: Follows Felgate to hold that testator had capacity because he had capacity when giving instructions about codicil,
remembered that he gave the instructions and knew that this was the codicil.
5. Undue Influence
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Undue influence involves “poisoning the mind of the testator”.
Undue influence is not related to testamentary capacity, for a person may have the necessary capacity to make a will, but
because their volition was overborne by another, the will must be refused probate. Testator must be a “free agent”.
Whatever provisions of the will affected by undue influence will be invalid regardless of whether the person benefiting
from the gifts knew or was a part of the influence:
o But, usually the person who exercises undue influence benefits.
o The person who may have the most evidence to show the will is valid (because it was made at their behest)
will also be the person accused of unduly influencing the testator.
Analogous to fraud: better be sure of claim before making it because you can be subject to adverse costs for wrongly
alleging such a claim.
With respect to inter vivos gifts, if the person who receives the gift was in a position to exert undue influence over the
donor and stood in a fiduciary or confidential relationship to him or her, a presumption of undue influence is raised
(but still does not change onus of proof).
Onus of proof on balance of probabilities rests with those alleging undue influence.
Hall v Hall (1868)

“To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion … or pity for future
destitution, or the like – these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of
whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without
convincing the judgment, is a species of restraint under which no valid will can be made … In a word, a testator may
be led but not driven.”
Wingrove v. Wingrove (1858)


“To be undue influence in the eye of the law there must be – to sum it up in a word – coercion.”
“It is not sufficient to establish that the person has the power unduly to overbear the will of the testator. It is necessary
also to prove that in the particular case that power was exercised.”
Craig v. Lamoreux (1920)
Facts: Testatrix expressed desire to make will leaving everything to husband during her final illness. Husband got lawyer
brother to draw up the will. When read to her, she requested changes leaving more to other family members. It was
redrafted, and signed illegibly without witnesses. The brother lawyer told the testatrix that the will was invalid for
that reason, so she signed the first version. A sister alleges undue influence.
Held: No undue influence proved
 It is not enough to show facts consistent with undue influence, you must show facts inconsistent with a contrary
hypothesis.
Re: Marsh Estate; Fryer v. Harris (1991)
Facts: Testatrix devises principle asset to Rev. Harris. Mr. Fryer had power of attorney over testatrix, finds out about
devise, expresses his dislike and tells her to get Harris to manage her property. Testatrix changes the will,
presumably thinking that she needed Fryer to manage her property.
Held: Will invalid for undue influence. “He implicitly, if not expressly, threatened to withdraw his assistance.” This is
coercion.
Comment: Person doing the influence is not the beneficiary. Undue influence not restricted to cases where accused ends up
benefiting.
32
Mayrand v. Dussault (1907)
Facts: Testator was suffering from a wasting disease. His brother suggested that his wife was poisoning his food. The
testator revoked his former will, cut out his wife and left everything to his brother.
Held: The new will could not stand because the brother’s actions were undue influence.
Comment: Same reasoning would apply if a person applying influence doesn’t benefit (i.e. brother suggested estate go to a
charity).
6. Fraud
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If a will or disposition is made because of fraud, the will or the disposition must fail.
Must show the will or disposition would not have been made but for the fraud.
o Example: If the beneficiary goes through a form of marriage with the testator while already married to
someone else and without informing him or her of it, the gift will be set aside. But a gift to the
beneficiary’s child will stand if that person was not a party to the fraud.
Gifts given to beneficiaries because of fraud will be valid if the beneficiary is not a party to the fraud.
Must practice “no deceit”.
More extreme allegation than undue influence.
7. Mistake
a) Introduction


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Mistake goes to knowledge and approval of contents of will.
A gift made by mistake is invalid.
Court’s power to remedy mistakes: A court may strike out words to validate the will and correct the mistake. A court
may not amend or change words to achieve this result.
There are 3 types of mistakes that for which the court’s powers to correct may be invoked
1) Where there is a patent mistake on the face of the will
2) When a drafting error has occurred
3) When the testator has executed the wrong instrument
b) Patent Mistake

May be apparent (a) on face of will or (b) from evidence of surrounding circumstances that the testator made an error
about an existing fact.
o A will or provision is invalid if T relied on that mistaken fact (testator would not have made disposition
if had known about the mistake).
Re Wright: T left entire estate to particular individual, “since I have no family alive” – he in fact had a wife and daughter.
Invalid gift, text of will indicated that he would not have made disposition but for the mistaken belief.
c) Drafting Errors
Two-part rule:
a) Where draftsman’s mind was never applied to the chosen words, and there was an inadvertent or clerical error,
the T is not bound by the mistake unless specifically brought to his notice.
33
b) If testator’s attention is drawn to particular words, the T is deemed to have adopted them even if the mistake
was not directly brought to his attention.
Goods of Boehm – Where gifts were to his “daughters” and T said “X to Georgina and Y to Georgina,” the court inferred a
clerical error. The court did not have the power to add the other daughter’s name, so it deleted “Georgina” and was left with
a residuary gift to the daughters.
Re Morris (1971)
Facts: Testatrix left property and $ to an employee in clauses 3 and 7(iv) of her will. Wanting to change these gifts later, she
asked her solicitor to prepare a codicil changing only those sections. Her made a mistake, and revoked clause 3 and
all of 7 (as opposed to just 7(iv).
Held:
 It is a clear rule that the court cannot add any word to the instrument, only delete words. (If they could, adding (iv) would
solve the problem)
 Although a testator cannot delegate the making of a will, he can delegate the drafting of a will.
 See 2-part rule, above
d) Execution of Wrong Instrument
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Occurs where testator executes the wrong instrument while of the belief that he or she is executing his or her will.
Court will not grant probate if parties execute wrong instrument: e.g. a mortgage or the will of a stranger.
But where it is apparent that two people signed wrong document: e.g. husband signs wife’s will and vice versa (i.e.
reciprocal wills), a court may delete incorrect names and insert correct ones.
While this is sensible, it is contrary to related law.
Re Brander – court allowed probate by deleting incorrect name of one spouse and inserting name of correct spouse.
o Note: Court actually did substitute the correct name even though Boehm showed that Court is only
supposed to have power to delete names.
Re Malichen Estate – court went further, and modified the incorrect will to account for minor differences in distribution
between the H and W’s will.
34
Nature of Testamentary Dispositions
1. Incorporation by Reference
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Existing, but unattested, documents may be incorporated into a will.
o No requirement that it be signed, handwritten/typewritten (although a good idea to adhere to etchnichal
requirements)
As good as if had been written in the will from the beginning.
There is no restriction on what types of legacies can be given through an incorporated document (can be either real or
personal), but they tend to be used for gifts of personalty.
Once part of will, 3 things happen: (1) becomes part of public record when probated – potential disadvantage, (2) have to
follow certain requirements to change the will and therefore the side document – potential disadvantage; and (3)
becomes legally binding – advantage.
Three requirements for incorporation by reference:
1) The unattested document must be in existence when the will into which it is to be incorporated is executed;
o The onus is on the person seeking incorporation to prove that the document was in existence when the will
was made.
o The reason for this requirement is that anything below the signature does not satisfy the statutory
requirements for a valid will (s. 7 of SLRA).
o Black: prevents testator from making testamentary document that doesn’t comply with statutory
requirements.
2) The will must refer to the unattested document as an existing document; and
o Cannot refer to it as a future document because you could change your will without formal amendment.
o Question of construction
o If the existing document is subject to change, it cannot be incorporated. If it refers to a document to be
incorporated unless another is substituted for it, and no substitution occurs, it may be allowed
3) The will must describe the document with sufficient certainty so that it can be identified.
o Evidentiary requirement.
o Also good idea to have document refer back to will.
Context or uses for incorporation by reference:
 Trust companies – fee agreement (a standard document), want it incorporated into will.
 Executor’s compensation.
 Personal effects – jewellery, clothing, etc. People want to give personal property in will and the items are of small value
or numerous. People change their minds often about such gifts.
 Ways of effecting such gifts:
o Can make a list of specific gifts in the will.
 Problems: (1) not easy to change because requires formal amendment or codicil, (2) When the
will is probated, the gifts become a matter of public record with the will.
o May also attach a schedule to the will.
 Problems: not easy to change (need to be careful, signature placement at end of schedule because
dispositive clauses), part of public record.
o Precatory memorandum: A type of side memorandum that is not a part of the will and expresses wishes
about distribution of personal property.
 Advantages: Easy to change (don’t have to make formal amendments). Are binding on people’s
conscience. Not probated, so no airing dirty laundry. Practical for small gifts.
 Problems: Not legally binding because it is only an expression of a wish.
o Incorporation by reference:
35


Advantage: Convenient to attach side document, easy to keep the same list for subsequent wills.
Don’t have to retype the agreement. Used for complex things like executive compensation
agreements.
Problems: Requires a formal amendment/codicil to change. Becomes public record along with
the will when it’s probated.

Black: for clients worried about what happens if they die between a meeting to discuss the will and actually signing the
will he gets them to do a brief holographic will incorporating Black’s notes from the meeting

Note: An incorporation by reference is sometimes confused with a semi-secret trust.
o The secret trusts doctrine raises a constructive trust when a testator leaves property by will to a person
based on the that person undertaking to distribute the property according to the testator’s directions
o Secret trust: looks like the legatee takes absolutely on the face of the will. The communication of
instructions to the legatee can happen anytime before death.
o Semi-secret trust: the will give the property to the legatee, but says something like, “to be disposed of
according to my letter to her”. The communication of instructions to the legatee must take place before the
will is made, so the testator can’t make what is in effect an unattested codicil by changing the instructions.
Additional Comments:
 Doctrine of Republication may allow a document which was not in existence when the will was made to be
incorporated. See below.
 If will is holography (wholly in testator’s own handwriting and signed by them), problem may arise if the document to
be incorporated is not in the testator’s own handwriting.
In the Goods of Smart (1902)
Facts: Will included a legacy that said: to “my friends as I may designate in a book or memorandum that will be found with
this will.” Will was made in 1895, book prepared in 1888-9. A codicil was prepared in 1900 making other
dispositions, confirming the will, but did not make reference to the book
Held: Incorporation by reference failed.
Reasons:
 The will refers to the book in future terms
 If a codicil confirms a will, the will is treated as if it were executed the day of the codicil
 Therefore, even though the book was in existence at the time of the codicil, no changes were made to the wording of the
reference meaning it was still in future terms
Re Dixon-Marsden Estate (1985)
Facts: Typewritten piece of paper with dispositive provisions and appointment of executor. At the bottom of the page was a
handwritten part which said “the above-mentioned are in short those to whom my estate is left.” Signature was
directly below that. Argued that handwritten portion should be considered a holographic will, and the typewritten
part included through incorporation by reference
Issue: Whether a non-holograph document can be incorporated by reference into a holograph will?
Held: Doctrine of incorporation by reference contemplates the existence of a document that qualifies for probate,
independent of the document sought to be incorporated. This one document was not wholly in the handwriting of the
testator. Handwritten portions could not stand on their own, so not a valid holograph will into which anything can
be incorporated. Document is not two separate documents (although doctrine of incorporation does not require two
documents), this was one act.
Said in obiter: a holograph will must solely be in testator’s handwriting, therefore, codicil must be of same form.
Comment: This is the law in Ontario. Black dislikes this interpretation.
Black: if there was a portion in handwriting that could constitute a valid holographic will, you still have the problem of the
entire document not being in the handwriting of the testator.
In short, can a document not in the handwriting of the testator be incorporated into a holographic will? No.
Doctrine of Republication

Making a codicil or executing a will again republishes a will
36
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The effect of republication is that the will has the same effect as if it were made at that time, i.e. at date of codicil
or re-execution.
How does this relate to incorporation?
o Doctrine of republication could save an otherwise invalid incorporation by reference.
o A document that does not exist when a will is executed for the first time will fail part 1 of the test for
incorporation. But, if the document comes into existence before the codicil or re-execution of will, the
doctrine of republication will save the incorporation, so long as the reference to it in the will is not in future
terms (you lied)
o The reason is: the document will now be in existence when the will was made
2. Disposition of Parts of the Body (Funeral Arrangements)
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Not possible to have property in a corpse (R v. Handyside).
Directions in a will with respect to disposing of a body are invalid (Williams v Williams).
o Cannot stipulate manner of burial (Hunter v. Hunter).
o The manner of burial (buried/cremated, where, etc.) is solely within the discretion of the estate trustee.
Best policy for T is to appoint an estate trustee (executor) that you trust.
However, the Human Tissue Gift Act allows organ donations.
The context for these cases is usually where the legal representative of the estate is following the testator’s instructions,
but family object for religious reasons
Saleh v. Richard (1993)
Facts: Wife (Muslim) died intestate, and husband appointed administrator. Husband intended to cremate in accordance with
her express wishes, and father brought suit to prevent cremation.
Held: Administrator has right to dispose of body. Only obligation is that it be decent and dignified fashion – choice is
entirely his.
Mississauga Basement Fire Case
Facts: Husband and wife separated. Wife and child (3) die in basement fire. Question as to where child should be buried.
Surviving father did not want child buried next to mother; mother’s parents did.
Held: Nearest next of kin gets entitlement, so father determined where child buried.
3. Limits of the Powers of Testation
Re Millar (1938) SCC
(The Baby Derby)
Facts: Millar’s will is unusual: O’Keefe stocks to protestant ministers, a Jamaican house to three friends who hate each
other and the residue in trust for ten year – to go to women who bore the most children in the period. The will
contained a preamble noting the capricious nature of the devises. Millar’s heirs challenged the will on the grounds
that the baby race was contrary to public policy.
Arguments: Baby derby might injure women physically, emotionally, and hurt all people morally. Argued women might
turn to men other than their husbands.
Held: Valid will, not contrary to public policy. A court will not strike down a will as being contrary to public policy unless
(from Fender v. Mildmay):
1. It is “substantially incontestable” that allowing the provision to stand would affect “the safety of the state, or the economic
or social well-being of the state and its people as a whole.”
2. The doctrine will only be invoked in “clear cases, in which the harm to the public is substantially incontestable and does
not depend upon the idiosyncratic inferences of a few judicial minds.” (case turned down because this condition not
met)
Additional:
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Retired lawyer Sam Wier gave $3,500 to LSUC in trust, to pay student who makes it through Bar Ads with lowest mark.
Also offered $10,000 for lectures if LSUC did this. LSUC turned down gift.
4. Testamentary Guardians and Custodians

Parents cannot declare with absolute certainty who will have custody and guardianship over their children.
o Custodian: is the person who gets physical custody of the child.
o Guardian: is the person who has legal power over the child’s affairs/assets.
Children’s Law Reform Act
 Sections 61(1) and (2)
o Allows people to appoint by will a temporary custodian & guardian.
 Section 61(4): an appointment is effective only
o (a) The appointor is the only person entitled to custody of the child on the day immediately before death,
or the guardian of the property, whichever applies; or
o (b) The appointor and any other person entitled to custody (or who is guardian) die at the same time
 Section 61(5): If custodian/guardians die at same time and they must have named the same persons as guardians and
custodians, otherwise none will take effect.
 Section 61(6): No appointment is effective without the consent of the person appointed
 Section 61(7): Appointment expires at 90 days  allows third party to bring good evidence that persons appointed are
not fit. On application, the court will decide what is in the best interests of the child.
o Appointment does carry significant weight.
 Policy Issue: paternalism vs. protection.
Note: A parent, simply by virtue of being a parent, does not have the right to act as guardian of child’s property.
 Example: A minor becomes the beneficiary of a life insurance policy from a grandparent. Sally is 15 at the time of
grandfather’s death. There are two possibilities for the $10,000 (which is directly in the child’s name)
1) Gets paid into court and managed by the Office of the Children’s Lawyer
2) Sally’s parents can apply to the court to become guardian of the property
 Sally’s parents don’t have the right to it simply because they are parents
 This scenario is to be distinguished from the situation of parents having the right to manage the property of the child that
is in trust for the child. i.e kid’s bank account opened by parents creates a constructive trust. The ownership of the
property can’t vest in the child until s/he turn 18, so the parents own it in trust for the child.
Black: You don’t have the right to make a permanent appointment of guardian or custodian of a child just a
temporary one, then the appointees must make an application to the court.
38
Testamentary Gifts
There are two issues to consider with respect to testamentary gifts:
1. Insufficient funds to pay debts and give legacies:
o Debts (includes debts and liabilities of testator, funeral, testamentary and administration expenses) paid
first, specific legacies next, residue afterwards.
2. Insufficient assets to pay off debts:
o Insolvent estate – handled by debtor creditor law (secured before unsecured), general creditors taking a pro
rata share
1. Abatement
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
Definition: Abatement is the pro rata (proportionate) reduction of amounts or quantities of testamentary gifts when the
estate is insufficient to pay debts and gifts in full (can pay debts but not all gifts).
Priorities: Debts first – creditors relating to estate take priority (lawyer fees, administrative fees and funeral expenses),
then other creditors, then beneficiaries.
Main fund liable for debts is the residue, including real and personal property (see statute below)
Estates Administration Act
s. 5: the real and personal property comprised in the residue of the estate, except when a contrary intention appears
in the will of codicil, is applicable rateably to the payment of debts, funeral/testamentary expenses, and costs of
adminitration
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Order of abatement (categorize to see which gifts to look at first to satisfy debts):
1. Residue;
2. General legacies;
3. Demonstrative and Specific legacies;
4. Devises – specific gifts of real estate.
Must exhaust the gifts in each category before you proceed to the next category.
For actual items (specific gifts): sell entire category if previous category is insufficient to satisfy debts.
Abatement of some gifts: where sufficient funds exist to pay creditors and give gifts to some under the will.
Testator could say that a category of gift should abate last.
Lindsey v. Waldbrook (1897) Supreme Ct. ON (CA)
Facts: Testator directed that farm be sold and money first go to his grandson, then out of remaining, gifts go to three
daughters and son. Insufficient legacies. Where does grandson fit?
Held: Onus of proof of priority on abatement is on person claiming it. In this case, the court found no intention to place one
legatee in a better position than other.
2. Ademption

Definition: Occurs where a gift in existence at the date of the will is no longer in existence at the date of death. May
have been sold, given away, lost stolen, destroyed.
o I.e. gold Rolex left to brother; T gave away or sold during lifetime.
39
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General rule: In the absence of statutory provisions to the contrary, if a specific gift adeems, the beneficiary gets
nothing.
o In absence of statutory provisions to contrary, even if T retains other property into which the property that
was the subject matter of the gift has been converted, gift still adeems (but see anti-ademption rule).
A will can express a contrary intention (beneficiary gets specific gift or any property which replaces it). Ademption
provides default result – law steps in to provide what happens when T has left out or not anticipated something.
Scrutinize language of gift carefully:
o (1)“I leave 25 shares of BCE Inc. to X.” vs. (2) “I leave my shares of BCE Inc.” vs. (3)“I leave my shares
to X”
 (1) may adeem if those 25 shares aren’t in existence
 (2) will adeem if no shares of BCE
 (3) will only adeem if there are no shares in existence
Way a gift is described is crucial. If describe item generically, beneficiary may get.
Re Hunter (1975) ON HCJ
No longer good law
Facts: Testator left house and contents to beneficiaries. House fire killed testator and destroyed house and contents. Testaor
had insurance which paid the proceeds to the estate.
Issue: Did the gift of the house adeem?
Held: Gift adeemed. Insurance was part of the general residue of the estate so beneficiaries was not entitled to it.
Comment: Section 20(2)(b) of SLRA overturns and mitigates the harshness of this result. Re Hunter may have
prompted statutory changes.
Anti-Ademption Rule – s. 20(2) SLRA
 Unless a contrary intention is expressed by the testator, a donee takes the rights in:
(a) payment owing by virtue of a contract for property in a will that T made
(b) proceeds of insurance policy covering loss of gift
(c) compensation for expropriated property, and
(d) mortgage interest in property sold (but not the proceeds of sale)
 S. 20(2) may conflict with s. 22.
Doctrine of Ademption in Ontario:
 s. 36 of Substitute Decisions Act negates ademption in cases of the mentally incompetent
o Where representative of mentally incapable person must dispose of some assets, the beneficiary of that
specific asset is entitled to the equivalent of proceeds from the residue (value of disposition, though, not
appreciated value).
o Why? Assets of mentally disabled may be more easily disposed of in life because a guardian/attorney may
act without knowledge of will.
Ademption policy:
 Should it make a difference as to why a gift no longer exists? If T got rid of it, isn’t this the same as a testamentary wish
that the beneficiary not have it?
 If cause other than T caused gift to no longer exist, should statute protect? Should more limitations on ademption be
created?
3. Date from Which the Will Speaks
a) The General Rule
SLRA, s. 22: A will speaks from the date of death, unless a contrary intention is indicated.
Re Rutherford (1918) SC ON
40
Facts: Testator devises “house on Merton Street.” After the date of the will the will, the T bought more and the property
was expanded. Property was left to his wife for life, then to his children.
Held: Whole property passed under the devise. Contrary intention may be found where: (i) testator speaks of giving the gift
at that specific date or (ii) the testator speaks of a specific thing. The words of the devise did not fall victim to
either problem.
 “…it has always been held that when the thing given remains, and has been added to between the date of the will and
the date of death, the whole property answering the description at the latter date will pass.”
b) Contrary Intention
i) Generally

A contrary intention to take a gift out of s. 22 can be expressed by a testator though:
i) making a gift of a specific item that is incapable of increasing or decreasing (eg. horse, piano, car)
ii) using language that indicates an intention to give only the property owned at the date of the will
Re Bird (1942) ON CA
Facts: T devises house on 14 Mitchell Avenue to Bird. It was on lot 57 when she made the will. City demolished the house
and replaced it with two semidetached homes (#14 & #16) after the date of the will.
Riddell (dissent): No contrary intention is expressed in the will, and the language employed covers only #14.
Fisher (majority): Gift goes to Bird. T intended for the property, including any later changes, to go to Bird
 Court can consider the specific description and all circumstances relating to the property.
 When she said #14, she knew it as lot 57, therefore, it didn’t matter that it was now #14 & #16. If the houses had been
14 & 14A, there would be no problem. It would be ridiculous for the result to turn on the City’s numbering.
 The reference to #14 when she meant Lot 57 is evidence of the contrary intention (?!)
Critique: Fisher is grasping at straws here in order to resolve the case in the way he wants.
ii) Use of Temporal Words


To show a contrary intention, a testator must refer to the property as property of a certain description he owns as of
the date of the will
Problems arise when ill-defined words such as “now” and “then” are used (they could refer to the date of the will OR the
date of death)
Re Forbes (1956) ON CA
Facts: Will says “the premises where I now reside in Wiarton.” Also referred to “at the date of my decease.” He bought
another house in Wiarton.
Held: Contrary intention found. Gift adeems. Will does not speak from the date of death, but date of writing. Words like
“now” have a magical effect.
 The word “now” is an essential part of the description of the house
c) Change in Name and Form
i) Generally

Where the property changes in name or form only, but the specific thing given is substantially the same, the gift does
not adeem.
Re Britt (1968)
Facts: Will says: “all monies owing [to me] on a First Mortgage on …52½ St. Patrick Street. Mortgagor defaulted and T
foreclosed. T obtained a money judgment.
41
Held: Gift does not adeem. Not every change affecting a specific legacy results in ademption. Where the change is in
name or form only, but the thing is substantially the same, the gift will not adeem. Essentially, the mortgage
was a right to money and so was the judgment. There was only a change in form.
ii) Tracing


If a T directs the sale of property and gives legacies from the proceeds, but sells the property before death and puts the $
in a bank account, or…
If a T directs that legacies are to be given out of $ in a particular bank account, but before death transfers the money to
another bank account…
o Is this a change in name and form only?
o Can the proceeds be traced?
Re Cudeck (1977) On CA
Facts: Will said “the proceeds of a Term Deposit of $28,000.” T later cashed the original term deposit and buys another on
the same day. Cashed it for $36,000. It gains interest and becomes $36,258.90. $37,000 is found in a safe deposit
box at death.
Held:
 Bequest said “proceeds.” Therefore, she gets the $36,258.90 out of the $37,000 in the safe deposit box.
 “…what was given here was a legacy in the amount realized from the last term deposit held. This legacy can only be lost
if the testator has cashed the deposit and clearly appropriated the proceeds himself.” The proceeds did not lose their
identity because they were mingled with the money in the testator’s bank account.
Comment: Re Stevens reaches opposite result on similar facts.
4. Real Property Subject to Mortgage


General Rule: Mortgage runs with the land. Therefore, a gift with a mortgage will include the mortgage on that
property (beneficiary gets the mortgage).
Testator may provide otherwise, and mortgage will not run with the land.
Section 32 – SLRA
(1) Where land is subject to mortgage and the will contains no contrary intention,
(a) devisee is liable for mortgage; or
(b) a share of mortgage that is proportionate to share of interest
(2) Testator does not signify contrary intention solely (mortgage will still run with the land):
(a) by making a general direction that debts be paid out of the estate,
(b) by making a charge of debts on that estate unless there is further express intention or “necessary
implication.”
 Black: in other words, you need more than a normal payment of debts clause.
(3) Mortgagee cannot be caught in the lurch – he is entitled to be paid.

Need to turn down the gift if would be imposing a loss on beneficiary (i.e. receiving a gift with a mortgage where
mortgage liability is greater than value of asset).
Re Hicknell; Perry v. Hicknel (1981) Ont. HCJ
Facts: Gift of house with mortgage; insurance policy had rider to pay debts upon death.
Held: The contrary intention must be clearly expressed in the will or other document itself. The fact that an insurance policy
of the testator provided a rider to pay make “family income” payments is not evidence of a contrary intention,
because the insurance policy itself did not provide for those payments to be applied to the mortgage.
42
Capacity of Beneficiaries
1. Introduction

This section discusses issues related to a particular beneficiary which may or may not limit their rights.
2. Illegitimacy




At Common law: An illegitimate child was nullius filius (“not a child”) and could thus inherit from no one unless
specifically named in the will. Two exceptions:
1) If impossible from the surrounding circumstances than any child born within the marriage could take
under the gift; or
2) If it appeared from the language of the will that children born out of marriage were to take.
Children’s Law Reform Act, ss. 1 & 2
o Abolishes the status of ‘illegitimacy’.
o When construing an instrument (like a will) ignore illegitimacy unless a contrary intention is shown in the
document.
Succession Law Reform Act, s. 1
o Unless a contrary intention is shown, ignore illegitimacy in documents after March 31, 1978.
o Old common law rules apply to wills before March 31, 1978.
Estates Administration Act, s. 23
o Creates a statutory obligation: Executor must make “reasonable inquiries” into existence of illegitimate
children.
o Not liable where inquiries are made and public records fail to disclose.
 Under Rules of Civil Procedure – can get a court order naming all heirs entitled to share in the estate.
 Reference to public records indicates obligation to search office of registrar general.
 Estate trustee would be liable where reasonable inquiries were not made.
 S. 23 obligation not arise if will restricts children to those born within marriage.
3. Adoption




Under modern adoption legislation in force in all common law provinces, adopted children are treated for all purposes of
the law as if they were born to the adoptive parent.
Child and Family Services Act, s. 158(2):
o Once an adoption order is made, the child becomes that of the adoptive parents and ceases to become the
child of the person who was his parent before the adoption was made.
o Effect is that they can inherit from their adoptive parents and their kindred (Barnes Estates) and lose the
right to inherit from their adoptive parents and their kindred (Chauvin v. Rachow), unless the will provides
otherwise.
o Similarly, adoptive parents and kindred can inherit from adopted child, whereas child’s former parents and
kindred have lost their right to inherit from him or her.
CFSA, s. 158(4) and (5):
o Doesn’t matter when the adoption took place, before or after the section came into force and before or after
the making of the will question.
o But will not affect any interest (including that of the adopted child) that has vested before the date of
making the adoption order or before November 1, 1985.
Reason for above sections:
43
Series of cases had held that words like “child” and “grandchild” in wills made before adoption legislation
referred only to lawful offspring. So if a grandparent left something to “my grandchildren”, and another
grandchild was adopted after the date of the will, the grandchild would not inherit. S. 158(4) overrules this.
Depending on wording of relevant statute, adopted child may also be able to see an order for dependant’s support from
estate of the child’s original parent (Hart v. Hart Estate).
o

4. Witnesses
a) Generally



A will may be invalidated where a spouse of a beneficiary or beneficiary is a witness (attests a will).
Rationale: potentially fraudulent.
Recent statutes have recognized fraud or undue influence in not linked by necessity with such attestation and, therefore,
make provisions for validating the gift. ss. 12(3) and (4)
Section 12 - SLRA:
12(1) Where a will is attested by a person who was then a beneficiary or a spouse of a beneficiary, gifts (not the
will) will be void as it concerns:
(a) the person so attesting
(b) the spouse or;
(c) a person claiming under them
but the person so attesting is a valid witness to prove the execution of will or its validity or invalidity.
(2) Where a will is signed by amanuensis who was then a beneficiary or a spouse of a beneficiary, gifts (not the
will) will be void as it concerns:
(a) the person so attesting
(b) the spouse or;
(c) a person claiming under them
but the will is not invalid for that reason.
(3) A court may validate a gift that would be void under the above provisions if it is satisfied that there is no fraud
or undue influence (akin to a rebuttable presumption).
(4) A devise is not void where a will is attested by at least other 2 people who are not within subsection (1) or where
attestation is unnecessary (holograph will).
Black: makes sense because trying to prevent undue influence.
Additional:
 Spouse – limited definition: only legally married, doesn’t apply to common law, voidable only on good faith (spouse
includes those who mistakenly thought were married).
Examples:
 a valid holograph will witnessed by a spouse would be saved by s. 12(4).
 a will witness by 3 people, one of whom was a beneficiary, would be saved by s. 12(4). Someone could still raise an
issue of undue influence, but the gift would be presumptively valid.
Re Trotter (1899) Chancery Div.
(effect of republication on validity of gift to witness)
Facts: Testator appoints his solicitor as his executor and directs in his will that the solicitor take all professional charges
from the estate (i.e. beneficiary). Solicitor attested the will. He did not attest a subsequent codicil, but did attest a
second codicil.
Issue: Was the provision of the will allowing for professional service fees to be taken out of the estate valid given that the
solicitor was a witness to the will (as republished by the 2nd codicil)?
44
Held: Valid attestation. The will was effectively republished when the first codicil was made (relied on doctrine of
republication). The solicitor was not a witness; therefore, the taint of undue influence or fraud was removed. The
second codicil (witnessed by the solicitor), though republishing the will, did not render otherwise valid gift invalid,
i.e. taint had been removed.
Comment: Could argue that the original problem arose again when solicitor witnessed will again. This is an “on the facts”
determination – i.e., whether there was undue influence.
Note: a testator cannot direct a solicitor for the estate anymore. Such a clause is not legally binding, only a wish.
Thorpe v. Bestwick (1881)
(witness subsequently becomes member of prohibited class)
Facts: Testator left house to niece. Thorpe was a witness. Thorpe later marries the niece and was married to her when the
testator died.
Issue: What if the witness is not a prohibited witness at the time of signing, but is a prohibited witness at the time of death?
Held: Valid will. Validity of witnesses is determined at the time of attestation. At this time, the Thorpe was not in the
prohibited class. Concerned with fraud and undue influence when the document was made.
Re Ray’s Will Trusts (1936)
(gift to witness in representative capacity)
Facts: Agnes (nun) willed gift to abbess of her convent “absolutely”. Will attested by two other nuns. One of the attesting
witnesses was the abbess at the Agnes’s death.
Issue: Could the abbess take the bequest beneficially or in trust for the convent?
Held: Gift to the official in respect of her office – gift to the abbess for the purpose of the voluntary society, the convent.
“Absolutely” indicates it is to go into the funds of the society and to be used without fetters for any purpose for
which the funds of the society can be used. Doesn’t matter that will attested by lady who happens to be the lady
who will be the hand to receive the gift (not getting an individual benefit).
5. Disclaimer






A person cannot be compelled to accept a gift given under a will. A person may disclaim the gift. Gift becomes void ab
initio.
Why would a beneficiary want to disclaim a gift?
o The conditions for acceptance of the gift are unacceptable.
 Examples: real property subject to a mortgage or other debts that exceed value.
o Beneficiary may be insolvent themselves and want other beneficiaries, rather than their creditors, to take
benefit.
Ways to disclaim a gift (must do before derive any benefit from the asset, Montreal Trust v. Mathews):
o Orally
o By conduct
o In writing
Prohibitions on disclaimer:
o Beneficiary cannot show an intention to accept gift.
o Must unequivocally reject the gift.
Section 23(b) of SLRA: If the beneficiary disclaims the gift, it is as though the gift was never made (just forms part of
the residue, Re Backhouse).
o Black: person receiving the residue could still disclaim. If disclaim a gift of residue, goes out on intestacy
(Re Metcalfe). Could disclaim again on intestacy. In that case, the share would augment the shares of the
other beneficiaries (you can’t disclaim in favour of someone else, so it wouldn’t go to the disclaimers
children.
A disclaimer of one gift under a will does not preclude a beneficiary from taking another, provided the two are not
inextricably bound together (Re Hotchkys).
Montreal Trust Co. v. Matthews (1979)
45
Facts: Charity disclaimed gift for tax reasons.
Issue: Should gift be applied cy-pres to similar charitable organizations?
Held: Will disclosed no general charitable intent so the gift could not be distributed cy-pres to other charities. As a result
this part of the estate went out on intestacy.
6. Homicide
a) Generally




Common law rule (policy): an individual should not be able to benefit from his or her crime. This follows from feudal
days and the rules of forfeiture and escheat.
Culpable homicide disentitles one to share under a will (i.e. murder, manslaughter).
o Rule has been applied when one person kills another and the first person would otherwise have been
entitled to life insurance proceeds (Cleaver v. Mutual Reserve Fund Life), social security benefits (R v.
Nat. Ins. Comm), benefits under the will (Lundy v. Lundy), entitlement on an intestacy (Norstrom v.
Baumann), and an interest as a surviving joint tenant (Schobelt v. Barber). Rule may also be applied to
deny the slayer’s application for probate of the deceased’s will (Estate of Hall).
Nonculpable homicide: law is unclear.
Nonculpable homicide caused by insanity: gift remains valid (Re Houghton).
b) Problems of Proof
Hollington v. Hewthorn (1943) UK
(admissibility of conviction)
Held: A criminal conviction is not admissible in civil proceedings to determine entitlement to share under a will. The
court should come to a decision in a civil trial based on the facts in front of it.
Re Charlton (1969) ON CA
(admissibility of guilty plea)
Facts: Appellant charged with manslaughter of wife. Husband pled guilty. His wife died intestate. Husband states that he
pled guilty to avoid the possibility of indeterminate detention under insanity provisions of the old Criminal Code.
Issue: Was the criminal conviction by way of a guilty plea admissible in a subsequent civil trial?
Held: The plea of guilty is admissible, but not conclusive of guilt. A confession was to be given great weight. The
question of whether the beneficiary really feloniously killed the testator is a question of fact. The criminal
conviction establishes a prima facie case. The burden is on the beneficiary to establish the killing wasn’t a felony.
Comment: Black questions the rule. I think it’s a balanced approach and here based on significant concern, i.e.
indeterminate detention under a part of the Criminal Code later found unconstitutional.
Demeter v. British Pacific Life (1983) ON HC
Facts: Demeter claimed a right to insurance proceeds resulting from death of his wife. He had been convicted of murdering
her (for those proceeds). Insurance company moved to have his claim declared an abuse of process (retrying his
conviction).
Held: Abuse of process. Proof of conviction was admissible. A Conviction is prima facie proof of guilt, and is of great
weight, but it may be rebutted. The court stated Hollington v Hewthorn had not been adopted in Ontario. The court
exercised its inherent jurisdiction to find an abuse of process. Facts showing conviction was good evidence of
guilt:
 it was a jury verdict
 jury properly charged
 standard of proof was higher – i.e. reasonable doubt vs. balance of probability
 appeals were dismissed
 application to reopen case was refused by the Minister of Justice
 identical issue before the court – i.e. strong set of facts to make that decision.
46
Comment: Oosterhoff – Is there not a danger that in the civil proceedings, a different decision may be reached such that
there are inconsistent verdicts?
Re Emele (1941) SK KB
Held: Effect of acquittal: conclusive of non-culpability. Evidence of acquittal “should be admitted and should be acted
upon.”
Comment: Court treated evidence of acquittal as conclusive; Black thinks this is wrong because the standard of proof is
lower in civil trials.
c) Nature of the Crime

Anglo-Canadian jurisprudence suggests that all killing attracts the public policy rule
o However, all cases were ones where the killing was intentional, so extending the rule to unintentional
killing is obiter dicta only
R v. National Insurance Commission (1981) UK QB
Facts: Applicant’ denied widow’s allowance because she intentionally and deliberately killed her husband
Held: The label that the law applies to the crime is not relevant to a determination of whether public policy demands that
the applicant not take-- the nature of the crime is. The line may be difficult to draw.

Rationale for disentitling beneficiary is based on public policy; policy concerns aren’t as great when someone death
results from an unintentional action; therefore, beneficiary should not be disentitled
Nordstrom v Baumann (1962) SCC
Facts: Wife set fire to house in which her husband was sleeping. She suffered from mental illness and didn’t realize he was
in there. She committed suicide at some time later.
Held: Wife was not disentitled from inheritance. She did not appreciate the nature and quality of her act (insane).
Unintentional killing does not disentitle.
Comments: Parties conceded that if she was convicted of arson she could not take (possibly outside of her insanity defence).
Black asks, what if she was convicted of arson, but not manslaughter? I said: not possible because of unlawful act
manslaughter and mens rea.
d) Limits of Disentitlement


If a slayer is insane, s/he is not disentitled to benefits
Insanity can be difficult to prove
o When slayer commits suicide immediately after the killing presumption of sanity, onus on those
claiming otherwise
o Any other situation onus on slayer to prove insanity
Re Gore (1972) ON HCJ
Facts: Murder-suicide. Husband murders family. The order of death is wife 1st, two daughters 2nd and himself 3rd. H & W
own house as joint tenants. H holds two insurance policies, one on his life and one on hers. All people die intestate.
Issues:
1. Who is entitled to the assets in the wife’s name?
2. Who is entitled to the house?
3. Who is entitled to benefits payable as a result of the husband’s death?
4. Who is entitled to benefits payable as a result of the wife’s death?
Held:
With respect to assets in the wife’s name:
Husband cannot benefit from wrongdoing. Under rules of intestacy, wife’s assets would then go to children because they are
living at the time of her death. They hold assets, but then die. Father is in line to take, but cannot because he killed
them. The next in line are therefore the grandparents of the children. No reason to differentiate between maternal
47
and paternal grandparents, because his parents were not claiming through son but granddaughters. Wife’s assets
divided equally among 3 surviving grandparents.
With respect to house joint tenancy:
Since the wife predeceased the husband, he’d be able to claim under the right of survivorship that attaches to a joint tenancy.
He cannot claim because of wrongdoing. The court instead severed the joint tenancy, making it a tenancy in
common. It reasoned that his half ownership was not forfeited because it was something he held independently of
his bad act. Thus, half of a TiC went to his estate (directly to his parents) and half went to her estate (then through
children, then divided amongst all grandparents).
With respect to life insurance policies:
According to the Insurance Act, when a beneficiary predeceased the life insured, the asset reverts back to the owner of the
policy and does not pass to the estate of the beneficiary. Therefore, the policy in the wife’s name goes to the
husband. With respect to policy on the husband, his wife was the sole beneficiary, and she was dead, therefore, he
would benefit. Public policy did not intervene because the husband could have achieved this effect with the scratch
of a pen – i.e. excluded his wife from benefiting (didn’t need to murder her to prevent her from receiving the life
insurance benefits). Husband’s next of kin are entitled to the life insurance proceeds.
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Class Gifts
1. Introduction

When a testator wishes to make a gift to group of people, he can do it in one of three ways
(a) Gift to individuals (naming each one)
(b) Class gift (sum of money given to members of a collective)
(c) Gift to individual members of a class (sum of money given to individuals within a class)

This section deals with the second class gifts
2. Nature and Effect of a Class Gift










Definition:
described).
o
o
o
a gift of assets to a group of people who share a common characteristic (normally generically
Often, gifts like “to my children,” “to my grandchildren”.
By being generic is to contemplate the possibility of more people coming into (or leaving) the class
This is in contradiction to the principle that described beneficiaries are people that answer the description at
the date of the will to opt out of this, there is a provision for a different date. i.e. “those who survive me”
Number of people in the class is unknown until the class closes.
When does the class close?
o Generally, a class closes when the testator dies.
o However, where the testator specifies in the will another date for determining when the class closes, this
will be the relevant date. If the will is silent or vague, you must use rules of construction.
Amount that each member of the class will receive depends upon the ultimate number in the class. I.e. if person in class
predeceases T, amount they would have received is divided proportionately through remaining class.
Examples of indicative language:
o “X to the children who survive me.”
 “survive” indicates class closes at death of T
o “X in trust to wife, to children upon her death”
 closing is uncertain. At T’s death or wife’s death. Normally, the class would close upon wife’s
death
Some class gifts are easy to define and identify (e.g. to my children). Others are more difficult (“to my family” and “to
my nearest relations”).
Doctrine of Lapse: a gift lapses where a beneficiary predeceases the testator (or dies before meeting the condition of the
gift- because the gift hasn’t vested). That is, the gift fails and will not take effect. Gift does not pass to estate of
beneficiary.
Consequences of lapse:
o Lapse of a specific gift falls into the residue,
o Lapse of a gift of residue goes out according to the rules of intestacy.
o If the beneficiary dies after the testator, but before possession of the gift passes, the gift will pass to the
beneficiary’s estate since the gift has already vested (the right to the gift vested before the beneficiary
died).
“Gift-Over” avoids the effect of lapse by specifying an alternate beneficiary who will take if a gift fails.
Rule: Doctrine of Lapse does not apply to class gifts (Kingsbury v. Walter).
o Codified in s. 23, SLRA
o Where a person who might be within a class dies, her share simply accrues (proportionately) to others in
that class.
o Lapse does apply if all the members of the class predecease the testator.
49
3. Identifying Class Gifts
a) A Class Gift or a Gift Nominatim?




“Gift nominatim” is a gift made to a named beneficiary. Also known as “donatio nominatim” or “donatio designatae”.
Differences:
o Where a beneficiary of a gift nominatim predeceases the T, the gift will lapse (specific gift would fall to
residue, residual gift would go out on intestacy).
Indications:
o Where beneficiaries are named, gifts are prima facie gifts nominatim, unless words of contingency are
added (e.g., if still living- then a class gift). This applies even though they may be described collectively
(e.g. “to my nieces and nephews A, B, C and D”)
o Gifts that use numbers are prima facie gifts nominatim because the number of the class is fixed (e.g. to my
3 brothers).
o The intention of the testator is however definitive – if the will is not clear, one may turn to outside
evidence (Robinson v Des Roches).
Examples
o “Gift to my children, x, y, z”
 Decide if this is a class gift or a gift nominatim.
 Rule: this will prima facie be a gift nominatim. But, then you must look to the intention of the
testator.
o “I leave gift to x, y, z who survive me”
 Decide if this is a class gift (the class being those who survive) or a gift nominatim (in that, the
people are named).
 Rule: Since words of contingency are added, it appears from the gift, that the testator wanted to
benefit that class of people.
o “I leave gift to my children x, y, and z, if living” – class gift.
Re Snyder (1960) ON HCJ
(words of contingency)
Facts: gift left son for life, then to “his two children Hugh James Snyder and Etta Florella Snyder if living.” Etta died before
her father.
Issue: Is the gift to the grandchildren a class gift or a gift nominaim?
Held: Quotes from Jarman on Wills: Gifts to several named persons, is not a gift to a class (and thus a gift nominatim)
unless words of contingency are added (e.g. “if still living”)
 Here, testator did not complete the residuary clause on a pre-printed will. By failing to complete it, he showed that
thought he had made a complete disposition (a class gift), so there was no need to complete the residuary clause.
Looking at testator’s intention.
b) Artificial Classes



Testator may wish to give a class gift to a group of people that do not share the same characteristics.
Can achieve this through an artificial class:
o If you do not want to benefit all of your nieces & nephews, you can say “to the children of my brothers
Tom and Dick” (other nieces & nephews are cut out, without converting the gift to a gift nominatim).
o Can also be combination of named beneficiaries and a generically described group.
Note: since these cases rely heavily on the intention of the testator, you can get very different results
Kingsbury v. Walter (1901) HL
Facts: Testator bequeathed shares to Elizabeth Jane Fowler (a niece) and child or children of his sister Emily Walter at 21
(i.e. other nieces) to be divided equally. Elizabeth predeceases testator. Elizabeth was not 21 when the will was
50
made, but was when she died. It was argued that this was not a class gift because the members of the class were
treated differently.
Issue: Was this a gift nominatim or a class gift? Does the age 21 condition not being applied to all make this not a class gift?
Held: Class gift. Naming of specific beneficiaries is only prima facie evidence of a gift nominatim. Must look for the
intentions of the testator. Ask: did the testator intend to treat the beneficiaries as individuals (nominatim) or as a
body as a whole (class)? Did the testator intend to create an artificial class? There was no contrary intention to treat
as a whole because of the “at 21” condition, as Elizabeth was very close to 21 when the will was drafted. She was
described as a “niece” in several other parts of the will. The testator intended to give the gift to Elizabeth in her
capacity as a niece. Therefore, no lapse and the children of Emily get all the shares.
c) Description by Number




Where gift specifies number of beneficiaries, it is prima facie a gift nominatim. (Re Smith’s Trusts).
Stating a number is not determinative: a contrary intention (to treat the number as a class) must, however, be clear
Example: “To my three sisters”. Comparable to having named them (nominatim), but can show intention to benefit a
class.
Problem: What if the number doesn’t correspond to the actual members of the class? (see Burgess, below)
Re: Burgess (1968) BC SC
Facts: The testatrix gave a gift of $1,000 each to two children of her friend in Saskatchewan. She then moved away. Her
friend actually ended up having 6 children.
Issue: Was this a class gift or a gift nominatim?
Held: Class gift. A gift that mentions a specific number is prima facie a gift nominatim. This presumption can be rebutted
by the intention of the testator in the will or through extrinsic evidence. Here, the extrinsic evidence showed a
friendship with mother and the court interpreted the number two to mean all kids. T wanted to benefit them by
virtue of their relationship. The court achieved this effect by reading out the number 2 from “I leave $1000 each to
the 2 children of my friend.”
Comment: What if this was a bigger gift? Would the court have found the contrary intention?
4. Determining Membership of Class
a) Generally- Class Closing



Rule: Look first to the will for the intention of the testator. Oftentimes, it will tell you the conditions under which
the class will close.
o For example, a gift for a life interest, remainder to testator’s children “then living” means that class closes
upon the death of the life tenant. Those who predeceased the life tenant but survived the testator are
excluded.
Where the court cannot determine when the testator intended the class to close, they will look at the class closing
rules (rules of convenience)
o The court must make a meaningful inquiry into the testator’s intention before resorting to the class closing
rules
o Specific rule: Class closes at the death of the life tenant.
Note: children conceived but not yet born at class closing are deemed to be members of that class.
Re: Hyslop (1978) ON HCJ
(class closing when life tenant)
Facts: Testator died in 1978, estate to be divided in equal shares between Donald and Glen. Donald received outright. Glen
received a life interest, remainder to his children.
Issue: When did class gift to Glen’s children close, at Glen’s death or testator’s death?
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Held: Class closed upon Glen’s death. You should only have regard to the class closing rules where the intention of the
testator is unclear. In this case, it was obvious from the will that he intended to include all of Glen’s kids, not just
the ones that were alive at the time of the testator’s death.
Comment: Court does not apply the class closing rules, but achieves the same result, i.e. class closes at death of life tenant.
Getty v. Crow (1985) ON Dist. Ct.
(premature class closing & capacity)
Facts: 77-year-old man received a life estate, remainder to his children (as living at his death). Children agree to let him sell
the property. Purchaser balked: concerned that class would not close until death of man – i.e. couldn’t say all the
beneficiaries of the remainder interest agreed (concern could have another child or adopt).
Held: Court ruled that the class closed. Normally, the court will not hear evidence of incapacity of a person to have kids, but
made an exception here based on moral certainty rather than mathematical certainty. The guy was impotent and
established that he would not be allowed to adopt.
b) Gifts to each Member of a Class



If a gift isn’t a true class gift, rather individual gifts to each member of a groups described by a common characteristic,
another rule applies
Rule: If there is an immediate gift of a separate amount to each member of a class, the class closes at the testator’s death,
and only those living are members or potential members. Class closes even if there are no members or potential members
at the time of the testator’s death.
o Reason: administrative convenience- to keep it open longer would mean that the number of legacies could
increase, and they couldn’t be distributed until the actual number was known.
Example: “$1,000 to each of A’s children at age 21”
o If A doesn’t have children at T’s death, gift fails
o If A has 2 kids, B (age 22) and C (15 ) at T’s death, B takes immediately, C will take at 21, but class
closes, and if A has another child, s/he will be excluded
o If C dies before age 21, his share goes back to the estate (doesn’t augment B’s share). Why? Not a true
class gift.
Re Belleville; Westminster Bank Ltd. v. Walton (1941) Chancery Div.
Facts: T leaves “£10,000 to any daughter (of his nephew) who shall be born after the date of this my will but who shall be
born before any further son born ( to his nephew). T dies in 1937, nephew kids are Belinda, Jeremy, and Camilla,
born 1930, 1931, and 1939 respectively.
Issue: Does Camilla take under the will, or did the class close on the T’s death?
Held: Camilla does not take. Applied the general rule: “a gift of a certain sum to each of a class of objects at a future
period is confined to those living at the testator’s death,” unless a contrary intention is clearly expressed. No
contrary intention here.
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Lapse
1. Introduction



Rule: where a beneficiary of a gift nominatim predeceases the testator, the gift will lapse (i.e. fail) and will not pass to
the estate of the beneficiary.
Where gifts lapse to:
o Specific gifts: go to the residue upon lapse (i.e. car or watch), s. 23 SLRA.
o Residue: goes out on intestacy (gift from estate not specifically disposed of), Re Stuart
Two rules modify the doctrine of lapse:
1) Gift over  in which case named alternate beneficiary takes.
o Testator may make a substitutionary gift by naming an alternate beneficiary.
2) S. 23 Succession Law Reform Act  a gift that lapses because of death or a disclaimed gift will not lapse, but
go to the residuary bequests of the estate.
2. Disposition of Lapsed Gift
Section 23 of the Succession Law Reform Act:
23. Except where a contrary intention appears in the will, a gift is included in the residuary devise (if there is one)
when:
(a) beneficiary dies in the lifetime of the testator; or
(b) a gift is disclaimed, is contrary to law or otherwise incapable of taking effect.
Re Stuart (1964) BC SC
Facts: Testator made a homemade will, where he made 36 cash gifts (1 was to his niece) and left his residue to 13 people (1
was to his niece). His niece predeceases him.
Held: The court applied s. 23 of the SLRA and held that, since there was no gift over, the gift fell into the residuary clause of
the estate. Since, niece was also a residuary beneficiary, this gift lapsed and went out under the rules of intestacy.
Re Crago (1976) ON HC
Facts: Testator left ½ of the residue of his estate to his wife and ½, expressed in percentages, to four other people. Wife
predeceases the testator. Testator then made a codicil revoking “that part of my Will by which assets were
bequeathed” to his wife, but confirming his will in all other respects. There was no specific gift-over of the wife’s ½
to the other residuary beneficiaries.
Issue: Does the ½ that was going to go to his wife go to the other residuary beneficiaries or on intestacy?
Held: The half going to the wife goes out on intestacy. Court could not find a contrary intention that the residuary
beneficiaries were to share in more than 50% of the estate. Suggests a high threshold for finding contrary intention.
Note: Courts will presume an intention to avoid intestacy whenever possible.
Comment: Appears must use clear language, i.e. gift over. But could argue fact that T made codicil suggests intention of T
to avoid intestacy.
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3. Anti-Lapse Legislation
a) Generally


Problem: doctrine of lapse is inconvenient and probably contrary to the testator’s intentions when the lapsed gift is to a
close relative. T most likely would have wanted the gift to go to an heir of the relative, but didn’t know (or turn his mind
to it) that it wouldn’t happen.
Solution: Statutory presumption that Testator would not want gift to close relative to lapse into intestacy, but go to heirs
of close relative.
Section 31 of SLRA – anti-lapse provision
31. Except where a contrary intention appears in the will, if a child, grandchild, brother or sister of the testator
predeceases the testator (before or after the will is made), and leaves a spouse or issue, the gift does not lapse
put passes directly to those entitled to receive their property as if:
(a) the beneficiary died immediately after the death of the testator;
(b) the beneficiary died intestate;
(c) the beneficiary died without debts; and
(d) there was no preferential share to spouse.
For gift to apply:
 Gift by will must be made to child, grandchild, brother or sister of testator.
 Donee was survived by spouse or issue who survived the testator.
 No contrary intention in the will (i.e. specific gift if donee predeceases testator).
 Must be a gift nominatum, and not a class gift (in Ontario).
If s. 31 applies:
 Gift does not lapse.
 Gift distributed as if on intestacy.
 Determined at death of testator (not beneficiary).
 No provisions for debts.
 No preferential shares.
No anti-lapse if there are contrary intentions in the will:
 Contrary intention may be indicated by: “if X survives me”, or a substitutionary gift.
Comments:
 Black doesn’t like the words “didn’t lapse” because it did lapse.
 Key: this does NOT form part of the deceased beneficiary’s estate. NEVER say this on an exam.
 The statute is essentially providing for alternate beneficiaries – as if statute is amending testator’s will.
 Intestacy rules of deceased beneficiary apply (minus the preferential share part).
 This distribution is counter-intuitive and may not accord with the testator’s expectations.
 Only applies to gifts nominatim. Other provinces apply this to class gifts too.
Re Wolson: Wolson v. Jackson (1939) Chancery Div.
Facts: Gifts to X for life, remainder to Ethel, Alec & Hilda at 25. Ethel survives testator but does not reach 25.
Held: Gift lapses. Anti-lapse legislation does not save a contingent interest that has already failed. It only cures a gift that
fails because the child, grandchild, brother or sister predeceased testator.
b) Contrary Intention

Anti lapse legislation only applies if the testator does not express a contrary intention, such as
o A substitutionary gift
o “ If X survives me”
54
Re Wudel; Moore v Moore (1982) AB QB
Facts: Will says if children die before my death, benefits equally to their children.
Held: Valid giftover. A contrary intention can be implied from the gifts in the will and the surrounding circumstances. In
this case, the court found that the testator chose to oust the anti-lapse legislation because she proposed an alternate
scheme of distribution, which contradicted the legislation.
Horton v. Horton (1978) BC SC
Facts: Testatrix left “to my children in 3 equal shares among my surviving children.” She had three children when she made
her will. One predeceased her.
Issue: Does the deceased’s child issue take?
Held: Despite the “3 equal shares” court held that there was a dominant contrary intention. There was a presumption that
she meant “surviving children,” and the dead child’s share lapsed; i.e. s. 31 did not apply.
4. Exceptions to Lapse
(other than anti-lapse legislation)
a) Joint Tenancy





We are talking about gifts nominatim to more than one person (either named or a given number) here, not class gifts.
Gift of property to two or more persons as joint tenants is a gift of the entirety and confers a right of survivorship. If a
testator gives property to two or more persons as joint tenants and one predeceases him or her, the other takes the whole
interest.
Tenancy in common does not, unless expressed, carry right of survivorship. Hence, if gift made by will to two persons
as tenants in common and one predeceases the testator, his or her interest lapses under s. 23(a), unless the deceased
falls within the preferred class named in the anti-lapse legislation.
o Note: sometimes a court will equate a joint tenancy gift with a class gift. The effect is the same (others
tenants get their interest), but these notions are conceptually distinct.
Works just like as gift over by incorporating an alternative beneficiary.
With joint tenancy the gift will not lapse (Similar to a class gift, but don’t confuse the two. In the joint tenancy case,
it is a gift nominatim we are talking about)

What happens when the testator does not specify whether he wants people to hold as joint tenants or tenants in
common?
o Historically,
 Common law: presumed joint tenancy.
 Equity: presumed tenants in common whenever the words equal are used.
o Current rules:
 Real Estate: tenants in common, unless contrary intention in will (s. 13 Conveyancing and Law
of Property Act).
 Personalty: joint tenancy, unless contrary intention in will. Words such as “equal” are evidence
of a contrary intention, and a tenancy in common will be presumed.

What happens if wording of gift suggests both tenancy in common and joint tenancy?
o Court will look to intention of testator to determine the issue (Re Coughlin).
Re Gamble (1906) ON
(lapse as applied to residue)
Facts: Testator leaves a farm (real estate) to his two sisters. The residue of the estate also goes to the sisters. One sister
predeceases the testator.
Held: Gift Lapsed. By statute, presume a TiC for real estate. The specific gift lapsed and went to residue (under equivalent
of s. 23 SLRA). Then the court had to decide how the residue was to be apportioned. The residue consisted of both
55
real estate (the farm) and personalty. The court distinguished between the two. With respect to the realty, they said
that the two sisters were tenants-in-common, which mean that the deceased’s part went on intestacy. With respect to
the personalty, this was held in joint tenancy and went to the surviving sister.
Comment: This result would not have occurred if the anti-lapse legislation existed. If the deceased sister had left a spouse or
issue, both the realty and personalty would go directly to the spouse and/or issue under anti-lapse legislation.
Re Coughlin (1982) On HCJ
(intention contrary to s. 13(1) presumption of tenancy in common)
Facts: Estate given to sister, brother, great nephew “in equal shares, share and share alike to be theirs absolutely.” It is
important to note that they lived together as a family. The sister and brother predeceased the testator. The people
had lived with the testator for 20 years. If the gift was found to be a tenancy in common, the gifts would lapse and
go out on intestacy to a nephew who never saw the testator.
Black: There appears to be an inherent contradiction in the wording. “Equal shares and share and share alike” appears to
connote tenancy-in-common, while “to be theirs absolutely,” suggests joint tenancy.
Held: Gift was a joint tenancy. The words “equal shares” indicated a tenancy in common. The words “theirs absolutely”
indicated a joint tenancy. Court stated it prefers not to find an intestacy and gave priority to the words “theirs
absolutely.” The entire gift went to remaining joint tenant (great-nephew who also lived with testator).
Comment: One indication of the testator’s intention to benefit the great nephew was that she lived with him, but hardly saw
the relative who would benefit on intestacy (nephew).
b) Gift in Fulfilment of Moral Obligations

Old rule that, if a testator makes a gift to discharge a moral obligation, and the beneficiary predeceases him, the gift does
not lapse but passes to his estate (Re Weir).
Re Mackie (1986) ON HCJ
Facts: Testator left estate equally to Mary and Eleanor (sister-in-law). Eleanor predeceased testator. Eleanor had performed
household tasks for wife of testator.
Held: Gift to Eleanor lapsed. The doctrine of lapse is only displaced in situations where testator or relative of testator owes a
fixed monetary debt to the beneficiary. A moral obligation to compensate for work is insufficient (i.e. no quantum
meriut).
c) Class Gifts


Doctrine of lapse only applies to gifts nominatim: does not apply to class gifts
If, however, all members of the class predecease the testator, and there is no substitutionary gift, the gift lapses.
o Most testator will make substitutionary gifts in the case of class gifts.
d) Republication

If a will is republished (e.g., by codicil), it does not avoid the doctrine of lapse, unless a contrary intention is shown;
mere re-execution is itself insufficient. Does not affect the doctrine of lapse at all—does not infer that the testator
intended anything different.
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5. Special Situations
a) Powers of Appointment

Doctrine of lapse also applies to powers of appointment
o Power of appointment: an authorization from the donor of power (testator) to another person (donee of
power) to dispose of the testator’s property (appoint the property).
 If a testator gives a general power of appointment, it is equivalent to giving the donee a gift of
the property
 If the donee gets a special power of appointment, the donee is required to distribute the property
amongst specific persons or classes.

Lapse of power of appointment doesn’t cause a lapse of the gift to those who take under the testator’s will in default of
appointment
An appointment made under a power of appointment will lapse if the appointee predeceases the donee of the power.
o If the power is a general power, the lapsed gift will fall into the residue of the estate.
 If it is an appointment of the residue, it will go out under intestacy
o If the power is a general power, the appointment lapses

b) Dissolved Corporations


Lapse also applies to dissolved corporations
Companies may be dissolved for failure to file returns, but can be revived according to statute (Business Corporations
Act, R.S.O 1990)
o A company dissolved before the testator’s death, but revived under legislation, is revived retroactively back
to the date it was struck off no lapse occurs in this case. (Montreal Trust Co. v. Boy Scouts of Canada
(Edmonton Region) Foundation)
c) Charities


If the charity ceases to exists before the testators death, and there is no evidence of a general charitable intention, the
gift lapses.
If the charity ceases to exist before the testator’s death, and there is evidence of a general charitable intention (i.e.
indication that testator wanted to advance education, and named charity is an example), the money will be applied cyprès
d) Secret Trusts


If the trustee predeceases the testator, the gifts to the intended beneficiaries of the trust lapse, since they depend on the
validity of the gift (to the trustee) in the will.
If the trustee survives the testator, but the intended beneficiaries of the trust do not, the gifts do not lapse since they are
regarded as having vested in the beneficiaries. The gift will go to the beneficiary’s estate.
6. Substitutionary Gifts
a) Generally

Providing that if the named beneficiary dies before the testator, the property should go to an alternate beneficiary.
57
o
o
Avoids rules of lapse.
Often used in class gifts (generally, one who dies before the will is made is not a member of the class).
Re Cousen's Will Trusts
Facts: Testator left estate in trust for specific children. If any predeceased the testator then their share held in trust for their
personal representatives. One child predeceased and so did the personal representative.
Ratio: Gift lapsed (twice). Cannot avoid the doctrine of lapse by declaring that gift should go to beneficiary’s estate, but
testator can provide for a substitute beneficiary. If the substitute beneficiary also predeceases the testator, then the
gift will lapse unless there is a substitute beneficiary. Because the gift has lapsed that portion of the testator’s estate
goes out on intestacy.
b) Words of Limitation or Substitution?
Re Klein (1981) BC CA
Facts: Testator left estate to beneficiary “to hold unto her, her heirs, executors, administrators absolutely and forever.”
Beneficiary predeceased testator.
Held: Invalid giftover. These words were of limitation (i.e., giving her his whole estate) and not of substitution. The same
words may be a giftover, but, on the facts of this case, were not.
c) Substitutionary Class Gifts



Substitutionary gifts are often used in class gifts.
However, a problem arises if there’s a substitute for a member of the class who was dead at the time of the will.
o It becomes a matter of interpretation for the courts.
o Must be determined whether the gift is a direct gift to the alternate (if not, gift will not pass).
Re Grassett stands for proposition that if Testator’s intention is to provide a direct gift to the alternate of a
beneficiary who was dead at the time of the will, gift will pass.
Re Grasset (1973) ON CA
Facts: Gift to brothers and sisters, but if they’re not living, it shall pass to their children. Testator had three brothers and two
sisters. Two brothers predecease the testator and had no issue. Third brother predeceased but left issue. One sister
predeceased the testator and left issue. One sister not only predeceased the testator but died before the will was
made.
Issue: Does the gift over rule apply when a beneficiary dies before the will is made?
Held: Valid gift over. The use of the plural “sisters,” and the fact that testator should know his sister was dead benefit show
that testator intended to benefit this person’s kids too.
Comment: Testator could have avoided this problem by specifically providing for these kids instead of making a class gift
with substitutionary beneficiaries.
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Survivorship




Issue: What do you do when multiple people die and the order of death cannot be ascertained?
Common law: onus is on the person claiming benefit to prove that the beneficiary survived the testator (need to prove
order of death).
Statutes:
o Survivorship Act (now repealed)  rebuttable presumption of death in order of seniority.
o Insurance Act (still stands)  rebuttable presumption stating monies are payable “as if the beneficiary had
predeceased the insured.”
 Unless a contrary provision in insurance contract.
 Rebut if can prove order of death.
 Deals only with policies of life insurance.
o Black: these two pieces of legislation are obviously inconsistent
Joint tenancy severed:
o If people die holding property as joint tenants and the order of death is unknown they are deemed to die as
tenants in common.
Adare v. Fairplay (1956) ON CA
Facts: Mr. and Mrs. Fairplay died together in their house from carbon monoxide poisoning. Mrs. Fairplay’s administrator
brought an application for trial to determine who died first.
Held: Mr. Fairplay died first. The order was established through autopsies. The standard of proof to rebut the statutory
presumption is the ordinary civil standard.
Re Topliss Estate (1957) ON HC, aff’d CA
(shows conflict between SA and IA)
Facts: H and W die intestate in common disaster. H (older) owned life insurance and wife was beneficiary.
Issue: Did she take under the will (Survivorship Act) or the Insurance Act?
Held: Survivorship Act determines distribution. The Insurance Act makes the proceeds of the insurance those of the husband
– The provisions of the Insurance Act are then spent. The wife is deemed to have died after husband, therefore,
under the Survivorship Act, she gets the right to proceeds.
Comment: Survivorship Act trumped Insurance Act.
Succession Law Reform Act – section 55 – when order cannot be proven
55(1) the property of each person shall be disposed as if that person had survived the other.
(2) where the two deceased are joint tenants, deemed to have held as tenants in common.
(4) proceeds of insurance policy should be paid according to Insurance Act.
This means that property that the testator owned immediately prior to the accident is distributed as if the testator
survived the beneficiary.
Insurance Act
s. 215 Where a person whose life is insured and a beneficiary die at the same time, the insurance money is payable
in accordance with s. 194.
s. 194 When a beneficiary predeceases the insured and
(c) there are no surviving beneficiaries, the proceeds are payable to the insured’s estate

Black: SLRA now consistent with the Insurance Act: each person survives the other. It may not seem this way on its
face, but you have to look at it from the perspective of the testator.
Problems with the old rule:
 Promotes litigation
59
o


But current legislation still leaves open possibility of proving beneficiary actually survived, so potential for
litigation.
Double administrative fees (H dies and probate taxes  W receives and dies  probate taxes again).
Unintended result (see Topliss)
o Example: Husband leaves to wife, but if she dies, to Liberal party. Wife leaves to husband but if he dies to
Alliance. Whichever one dies second (or will be deemed to have died second) will get both estates. As
such, one of the political parties will get both estates. This is obviously not intended.
Drafting response:
 Use a survivorship clause in the will (typically 30 days, 60 days). It reads something to effect: “in order to benefit,
survivor must survive me by 30 days.”
o Contemplates a situation where testator and beneficiary are in common accident, but the beneficiary is
injured and only survives a short time.
o Dictates fixed period of time beneficiary must survive in order to inherit.
o Avoids potential for estate litigation, and two quick estate successions (double tax).
60
Perpetuities


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



Rule against perpetuities (also known as the rule against remoteness of vesting) applies in all common law jurisdictions
in Canada (even where legislation has been enacted).
o Rationale: enable people to alienate their property, sell, etc. Prevent economic stagnation. No indefinite
holding for the future. A testator should not be rule from the grave indefinitely.
Things held in trust somewhere between 80 and 100 years, will be tend to be beyond the perpetuity period.
o Why? you take ‘average’ life span (70 – 80 years) + the 21 years
Rule: No contingent interest is good unless it must vest, if at all, not later than 21 years after the death of some life in
being at the creation of the interest.
The Perpetuity Period
o Although the definition of the rule provides for a period of a life in being plus 21 years, actual periods of
gestation, followed by live births, may extend the period.
o Measuring life (life in being): someone in existence at the date of the creation of the trust. Can be express
(youngest issue alive of the Queen) or implicit in the nature of the gift.
o Life in being must be alive when interest created.
Common law: the rule suggested that even if there was a possibility that a gift might vest beyond the period, the gift
was void (ab initio)
Perpetuities Act: introduced the ‘wait & see’ principle. A gift is not void unless something is held in trust (held
awaiting the contingent event to occur) 21 years beyond the life in being. 21-year period starts to tick with the death of
the life in being.
In Ontario, rather than using a list model (as in BC), s. 6(1) of the Perpetuities Act allows that any person who is
relevant in the limitation of vesting may be a life in being (called the statutory formula model).
o The formula is sadly defective in that it is unclear who the measuring lives are intended to be.
Criticisms:
o Rule is unnecessary in light of other laws. E.g. deemed dispositions of trusts every 21 years under ITA. No
longer any worries about ‘ruling from the grave’ or economic stagnation
Example: Hold in trust until first great great grandson reaches 30. At the time of death only children are surviving
o Under common law, this would be void ab initio, since there is a possibility that a great great grandchild
would not reach 30 within the perpetuities period. The gift is void ab initio, and goes out under residue or
intestacy.
o Under statute: the trust would be allowed to run to “wait and see” if the interest vests. In order to have great
great grandchild, need a great grandchild. So implied measuring life is youngest great grandchild. If when
last great grandchild dies, you have a great great grandchild who is 14 or older, the gift will vest before 21
years (i.e. great great grandchild will turn 35 before 21 years passes).
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Accumulations
1. Introduction



An accumulation occurs when income from a property in a trust is reinvested into the trust.
o Accumulation will occur where there is an express direction in the trust instrument.
o General rule, where a trust instrument is silent, the common law presumes a direction to accumulate.
Distinguished from rule against perpetuities (RAP):
o Accumulation that exceeds the permissible period of 21 years is not void in its entirety, but is allowed
to take effect for the appropriate period.
o Any surplus income accumulated after this date falls into residue or goes out on intestacy.
A gift under a will that offends the rule against accumulations may still be valid under the rule against perpetuities.
2. The Statute

Accumulation Act s. 1(1)4:
o Section 1 sets out 6 periods that you can choose from for the accumulation period to end:
 (1) life of grantor
 (2) 21 years after making inter vivos disposition
 (3) duration of the minority of a person not born at the date of making an inter vivos disposition
(4) 21 years after the death of the grantor, settlor, or testator
 (5) duration of minority of person conceived but not born before testator’s death
 (6) duration of minority of recipient of accumulated funds.
Section 1(6) where an accumulation is directed contrary to the Act (longer than 21 years from death),
the portion that is not allowed will go to such persons who would be entitled if the accumulation were
not directed
So, the income after 21 years goes to residue (if the subject matter of the trust was a specific gift)
or intestacy (if the subject matter of the trust was residue)
o
o



Maximum period, therefore, is 21 years from the creation of the trust
Common period: 21 years from death of testator. If T direct an accumulation beyond 21 years, incomes
goes to residue of estate. If is residue, goes out on intestacy.
Example: Monies held in trust for grandchildren until 25 and income is accumulated. If any grandchildren are under 4
at death at testator, when testator dies, accumulations after this point go to:
o Substitute beneficiaries, or then
o Residuary beneficiaries, or then
o Intestacy.
Example: Principal amount: $10 000; accumulate for 21 years; after 21 years, worth $30 000; in Year 22, will not
accumulate anymore. Unless provided for otherwise under the will, will go to residue. Essentially, after Year 21, the
asset has a ‘frozen value.’
How to avoid problems of expiry of accumulation periods: Set up trust such that, “income is to be accumulated until
X reaches the age of 21 years, but whatever interest is earned after that should be paid out to him.”
Re Hume (1983) SK Surr. Ct.
(start of accumulation period)
Facts: Residue was invested in a trust, and says that $100 of accretion per month (or more, as executors see fit) is to be paid
to wife, remainder to kids. Although income was insufficient for a time, there was excess income since 1971 (21
year period ended after 1970).
62
Held: When does the accumulation period start to run? 21-year period does not start when accumulation starts, but
when trust is created (i.e. death of testator). Consequences? Since this is a gift of residue, it will be distributed
according to the rules of intestacy (shared by the wife and children, probably).
Comment: Does accumulation clock start ticking even in years where there is no accumulation? Answer is yes.
Re Martin (1979)
(start of accumulation period)
Facts: Testator dies in 1956 and leaves residue of his estate to executors in trust. Testator directs executor pay annuities (i.e.
make payments) to wife, daughter and granddaughter and directs whatever is left over after this is to greatgrandchildren, then living. Testator was survived by wife, granddaughter, and 2 great-granddaughters. Wife dies in
1973, (accumulation periods ends in 1977). Significant surplus income had accumulated.
Held: Court found an implied direction to accumulate income (Re Ellis). The accumulation began at the testator’s death.
After 1977, the period passed. The gift couldn’t go out under the residue (since it was residue) so it went out on
intestacy, equal shares to daughter and wife (wife’s estate). Why? At what point in time do you determine who takes
on intestacy? The relevant date for taking on intestacy is when the testator died—that is when they take a vested
interest.
3. Terminating Accumulation


Sometimes happens that testator directs an accumulation of income from a fund for a certain period and then directs that
the capital and accumulated income be paid to a person at an age beyond the age of majority.
In that case, the rule in Saunders applies.
Saunders v. Vautier (1841)
(terminating accumulation)
Facts: Testator directed capital and income be held in trust until beneficiary reached 25.
Held: Beneficiary could claim upon the age of majority (21). Rule: where a person is sui juris, (mentally competent and
age of majority) and is solely interested in property which has vested in him or her absolutely (but delivery is
postponed until a certain age), that person can demand a conveyance or transfer of that property when
person reaches the age of majority.
Comment: To avoid this rule, provide a gift over to someone else (a contingent interest in favour of someone else—i.e gift
over to someone else if the beneficiary doesn’t reach the specified age). Then, beneficiary is not solely interested.
BUT, the two together could invoke the rule. Best way to avoid the rule is to give it to a class of people that you can
never be sure will exist: E.g. a gift over to the issue of the nephew (this indeterminate class cannot be known until
the death of the beneficiary). Good idea to name the issue of the beneficiary (unascertained interests).
Wharton v Masterman (1895)
(Saunders rule applied to charities)
Facts: T made provision for certain annuities (charged upon current income only), and directed that the surplus income be
accumulated. The capital and accumulated income were to be distributed to certain charities after the death of the
last annuitant.
Issue: Is the charity entitled to call for a conveyance of the capital and surplus income according to the rule in Saunders?
Held: Yes. The charity is solely interested in the capital and surplus income (so long as sufficient capital is set aside to
continue to pay the annuities).
Re Burns (1960) AB CA
Facts: Testator left the residue of his estate in trust to pay certain annuities as well as a certain sum to be paid to his son’s
widow, Millicent, per year for life. The income was to be accumulated until the death of the last annuitant and
Millicent. 60% of the accumulations were to be paid to named beneficiaries, and 40% to be accumulated. On the
death of the last annuitant and Millicent, 67% of the corpus was to be distributed to named beneficiaries, 33% held
in trust to pay annual income to named charities. All the annuitants are dead, but Millicent is alive
Issue: Can the capital be distributed before Millicent’s death according to the rule in Saunders (as applied in Wharton)?
Held: No. The rule doesn’t apply. In Wharton, the annuitants had a claim only against the current income (since the annuities
were rateable—could be reduced if the current income wasn’t sufficient to cover them. In this case, the payment to
63
Millicent is for a fixed sum of $500 per month and can’t be reduced, therefore she has a claim against the annual
income and accumulated income, so Wharton doesn’t apply.
4. Destination of Excess Income During the Accumulation Period
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What happens when testator has disposed of some of the accumulated income (through an annuity) but not all of the
surplus income? What happens to the excess income during the accumulation period?
There is an implied direction to accumulate if will is silent.
Re Ellis; Canada Permanent Trust Co. v Ellis (1982) SK QB
Facts: Testator made provision of $350 per month for wife & “necessary funds” for Lyle, who was his disabled son. After
Lyle’s death, ½ the amount set aside for his care would go to “the mentally retarded fund” and the other ½ to his 2
other children (who were the residuary beneficiaries). Under a subsequent separation agreement, the testator agreed
to pay $300 to wife. The executors set up 3 funds: 2 to pay the amounts to the wife, and one for Lyle’s care. This
application was to determine whether the surplus income in the 3 funds should accumulate or be passed to the
residuary beneficiaries.
Issue: Does excess money accumulate or go into residue?
Held: Income accrues to funds. Unless contrary intention is evident, surplus income from a fund will accumulate to the
fund from which it was derived (for the allowable 21 years). Here, there was no express or implied direction to
accumulate.
5. Exceeding the Accumulation Period
Re Struthers (1980) ON CA
(exceeding accumulation period)
The testator’s intentions are irrelevant. The Accumulations Act puts an end to the accumulation period and the surplus
income can then no longer form an accretion to the fund BUT must go to the people entitled to benefit.
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Persons Incapable of Managing Their Own Affairs
1. Introduction
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Issues are: what happens if testator becomes incapable of managing their own affairs before death? What can be done
from a planning perspective to name a substitute decision-maker in the event of incapacity? What happens if that person
did not put anything in place—who manages the testator’s affairs?
Power of Attorney: delegation of authority of person’s affairs so that the attorney act on behalf of the donor.
Terminology:
o Principal, grantor, donor
o Attorney, grantee, donee, substitute decision-maker
Revocable: The power of attorney may be revoked at any time provided the donor still has mental capacity.
o Revocation may be done by giving notice to attorney in writing
o Should also provide notice to third parties (e.g. banks).
Ceases at upon death: power only exists during life of grantor.
o Relationship is similar to one of principal and agent so the relationship terminates when the principal dies
(after death, executors take over).
Endure through incapacity:
o Not so at common law.
o Statutory rule found in Substitute Decisions Act, 1995 and formerly Power of Attorney Act.
Two types:
o Power of attorney over property (more limited).
o Power of attorney for care (takes into account the future potential for lack of mental capacity).
Fiduciary relationship
o Obligation of an attorney are similar to those of a trustee. The person is accountable and must act in the
best interests of the donor.
o Office of the Public Guardian & Trustee mandates accounting/disclosure if someone is challenging the
attorney’s actions (will usually be a relative).
Limits of power:
o Can do everything a grantor could except change grantor’s will or change beneficiaries to grantor’s RRSPs,
insurance policies, etc.
o The authority given can be all-encompassing or limited depending on the document itself and whether it
includes a power of attorney for care.
 Prior to Substitute Decision Act, a power of attorney could only encompass property.
 Black: a power of attorney should be all-encompassing in the estate planning context (since in this
context the power of attorney is made in contemplation of loss of capacity, not for convenience)
o Power of attorney can be given to more than one person jointly (if so, all decisions must be unanimous).
Difference between executor and attorney:
o Attorney acts in the interest of grantor, i.e. manages property (or health) of incapable person.
o Executor acts in the interests of the beneficiaries under a will.
Note: Powers of attorney are under provincial jurisdiction and may be insufficient to meet requirement in other
provinces.
2. History of Substitute Decision-Making
Powers of Attorney Act
 Originally only allowed power to continue upon incapacity if a clause was inserted to this effect.
 Had a sort of “on/off” notion of capacity. Either had capacity or you did not.
 Had to be determined competent under Mental Health Act, not easy to do and not easy to change.
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This did not fit well with the natural phenomena of diminishing capacity, and changing capacity.
Legislative History of Substitute Decisions
 Bill introduced in spring 1991 (initiative of NDP intended to deal with protection of “vulnerable people.” Received
royal assent in 1992 with little notice, and despite complaints from interest groups that legislation was too “big brotherish.” Legislation was not proclaimed until April 3, 1995, right before the NDP lost power. The four acts that came into
force are below.
 Now all powers of attorney are continuing powers of attorney.
 Recognizes greater need for accountability of attorneys.
 Office of the Public Guardian and Trustee is the main regulatory body.
Four acts dealt with the law on substitute decision-making (we only consider SDA):
1. Substitute Decisions Act
2. Consent to Treatment Act – governs consent of those unable to give it themselves
3. Advocacy Act – provided advocacy services to vulnerable persons.
4. Consent and Capacity Statute Law Amendment Act (this was the clean up legislation)
1996 further changes
 Advocacy Act – revoked
 Consent to Treatment Act – underwent significant revisions and became Health Care Consent Act, 1996.
 Amended Substitute Decisions Act to create two separate powers of attorney. For the first time, there was a right to
appoint a power attorney for personal care.
o Continuing power of attorney for property (CPAP):
 Continuing because it automatically continues beyond loss of capacity of the donor
 Powers over financial life of donor
 Unless restricted by specific provision, gives full control to manage property
 Attorney cannot make changes to grantor’s will, etc. when grantor incapable
o Power of Attorney for Personal Care (PAPC):
 Deals with decisions concerning health care, nutrition, shelter, clothing and hygiene and safety
 Extends power over all non-financial considerations, but to accomplish these ends, this attorney
will have to have CPAP or this person’s cooperation
 To grant or be named as a PAPC as one you must be 16
 Personal care = shelter, clothing, safety, medical treatment, hygiene, nutrition, health care, etc.
2. The Substitute Decisions Act
Witnesses
 Need two witnesses (s.10(1))
 Power of Attorney Act only required one witness
 Ineligible witnesses: (s.10(2))
o Attorney or attorney’s spouse or partner
 Partner: lived together for at least one year and have a close personal relationship that is of
primary importance in both people’s lives (s. 1(2))
 “Partner” introduced to include common law relationships and same-sex relationships, but it is
very broad
o Grantor’s spouse, partner, child,
o Person whose property is under guardianship
o Person who is less than 18
 The court had discretion to declare a CPAC effective even if it doesn’t comply with ss. (1) and (2), if it is satified that it
is in the interests of the grantor or his or her dependants. S. 10(4)
Power of attorney for Property
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s. 9: A person can grant a CPAC as long as they are capable to grant it, even though they are not capable to manage their
own property. Suggests that there are two standards for determining capacity: one for granting CPAC, and one for
actually managing your own property.
Capacity to grant power of attorney for property (statutory test)– s. 8(1)
Must satisfy seven requirements (must be understood by grantor):
(a) Knows their property and its value
(b) Be aware of obligations owed to dependants
(c) Understand that attorney will be able to do anything on person’s behalf dealing with property (finances) except
making or changing a will
(d) Understand that the attorney must account for dealings with property
 Note: rendering accounts is not mandatory; passing accounts is only required when their actions are
questioned;
(e) Understand that they can revoke the power if capable;
(f) Realize the risk that the value of property may depreciate if mismanaged
(g) Realize that attorney could misuse the authority.
 The grantor doesn’t need to agree with these, just comprehend the risk
Requirements: To grant or be named as a CPAP you must be 18 (s. 5). Donee (recipient of the power) must also be
capable of managing property (s. 12(1)(a)).
Test for Incapacity (s. 6): A person is incapable of managing property if they are not able to understand:
o Relevant information in making a decision in respect of the management of his or her property; or
o Appreciate reasonably foreseeable consequences of a decision or lack of decision.
 Note: the test for granting a CPAP and the test for incapacity are quite different—based on different
factors. It is possible that a person knows the existing facts (so is capable of granting a CPAP), but
can’t appreciate the decisions that need to be made (so can’t manage your own property). This is pretty
technical, so obviously it is better to have a CPAP already in place, and if not and this situation arises,
get a capacity assessment so the CPAP can be granted.
 This situation is contemplated by s. 9(1) A CPAP is vaid is the grantor was capable of granting it, even
in incapable of managing property
If name two or more people as attorneys, they shall act jointly, unless power of attorney provides otherwise, s. 7(4).
s. 5 To exercise a decision under this Part (referring to CPAC)
Revocation: a person is capable of revoking a CPAP if he or she is capable of giving one s. 8(2)
Power of attorney for Care
 Capacity for giving a power of attorney for personal care (statutory test) – s. 47(1)
o Person is capable of giving power of attorney for personal care if (must be understood by grantor):
(a) has ability to understand whether the proposed attorney has a genuine concern for the person’s
welfare; and
(b) appreciates that the person may need to have the proposed attorney make decisions for the person.
o Much narrower and less detailed test
 Requirements: To grant or be named as a CPAP you must be 16 (s. 44). Donee (recipient of the power) must also be
capable of making personal care decisions.
 Test for Incapacity (s. 45): A person is incapable of managing their personal care if they:
o Cannot understand relevant information in making a decision concerning his or her health care, nutrition,
shelter, clothing, hygiene or safety; or
o Cannot appreciate reasonably foreseeable consequences of their decisions or lack of decision.
o Possible for a person to be incapable of some personal care functions, but not others. In that
case, the substitute decision-maker would only make decisions in relation to that function
(decisions about nutrition, say, but not about shelter).
 Ulysses Agreement: Clause contained in a CPAC whereby grantor agrees to limit the extent to which they can object to
decisions once they become incapable.
Revocation – s. 47?
 Person has the capacity to revoke if they have the power to grant a power of attorney.
When is a power of attorney effective?
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Worst way of defining incapacity is to state that the power is only applicable upon incapacity:
o This suggests formalized assessments with corresponding delays in meeting requirements
o Determination by patient’s physician: what if the physician fears liability?
o Could give document to trusted 3rd party who will not release until person becomes incompetent.
Comment on time of effectiveness:
o When conditions are added (such as “only effective when I become incapable”), it may frustrate and delay
the administration of the power.
o Would then need an assessment, which a delays the process
o What happens when a person has good days and bad days?
o The attorney, once the person becomes incapable, has a fiduciary duty to both the
incapacitated person and to those with and interest (even a future interest) in their property.
The attorney would have to make a court application to have the court make a determination
that the grantee is incapable. Obviously a costly, uncertain, time-consuming way of doing
things.
o Could add a definitive mechanism to make the determination: “at such time as I become
incapable, as determined by my family doctor”. Problem: that determination can still be
challenged.
o Conditions can be added to a CPAP according to s. 7(7) A CPAP may provide that it comes
into effect on a specified date or when a specified contingency happens
o Black prefers to make the document effective upon the signing of documents and suggests that the best
safeguard is to appoint an attorney that is worthy of the grantor’s trust.
o 3rd approach: keep the actual document in the custody of a 3rd party, and make the document effective when
the document is released.
Assessors
 Assess mental capacity, various professional fields can apply to be assessors (lawyers can). Not every doctor is qualified.
Need to become licensed to assess. PG&T keeps a list of registered capacity assessors. A court may still accept a
doctor’s evidence, but better to use a registered professional.
 Black: no different than an appraiser for property you can have conflicting capacity assessments.
3. Guardians of Property
Guardians of property: substitute decision maker that is not appointed by the grantor.
 This is what happens if you haven’t got a CPAP in place
 Two kinds of Guardians of property: (1) Statutory guardian, (2) Court appointed guardians.
 Not as good as naming a power of attorney: expensive, uncertain, takes longer, power of attorney can do anything
individual could do but guardian more restricted.
Statutory guardians of property
 The office of the Public Guardian and Trustee becomes a persons’s statutory guardian of property if:
1) Person already in a psychiatric facility is found to be incapable of managing property under the Mental Health Act,
(s. 15, Substitute Decisions Act).
2) Person receives capacity assessment and is determined to be unable to manage property and there is no known
power of attorney or spouse, partner, child, parent, sibling who wants to apply (ss. 16 & 22)
o Note: this requires the person to consent to getting the capacity assessment.
o Spouse, partner, child, parent, sibling can apply to replace PG&T (s. 17(1))
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Some criticize these provisions of giving the government too much control over people’s affairs
These are provisions of last resort. The PG&T won’t become involved unless it is a last resort this is their policy
statement
Court-appointed guardians of property
 More common than statutorily appointed guardians
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Arises when:
o More than one person claims to have power of attorney (e.g., unknown who has the most recent document)
o A person lacks capacity:
 Must make an application to the court
 No relative or spouse automatically takes charge
Requirements for court to grant guardianship: Any person can make an application, and the court may appoint a
guardian for property for a person incapable of managing property, if it is necessary for decisions to be made on his or
her behalf. (s. 22(1)):
o Must determine that a person is incapable of managing property.
 A court does not make this determination lightly
 Evidence must be adduced: preferably a capacity assessment, may also have medical evidence
Court shall not appoint a guardian if it is satisfied that (s. 22(3)):
o (a) There is alternative course of action to meet person’s needs that does not require making a determination
of incapacity
o (b) There is an alternative course of action that is less restrictive to the decision-making of the person
Office of the Public Guardian may apply to the court in and get guardianship in cases of emergency of “serious adverse
effects”
If you are applying to replace the statutory guardian of property, you will have to submit a management plan for
governing your management of the person’s property, and prove you are capable.
o The authority to act will be granted pursuant to a court order, and you will be restricted by the management
plan. You will inevitable that you will have to formally account for your actions on a periodic basis.
Black: overall, the guardianship process is cumbersome, costly, uncertain, constrained, procedurally limited and limited.
A CPAP is clearly the better option extremely important.
Obligations of Guardian of property:
 Manage property in a way consistent with person managing their care (s. 32(1.1))
 Explain their duties to person (s. 32(2))
 Encourage participation of incapable person in decisions (s. 32(3))
 Foster regular personal contract with family and friends of the incapable person (s. 32(4))
 Consult with family regarding incapable person’s care from time to time (s. 32(5))
 **Keep accounts of all transactions (s. 32(2))
 Act in accordance with their management plan (s. 32(10))
 **Make reasonable attempts to determine whether the incapable person (a) has a will and (b) what the provisions of the
will are (s. 33.1)
o A person with custody or control of property (or documents relating to property) of an incapable person
(property includes will) shall provide the guardian or attorney with any information concerning property and
deliver the property to the guardian or attorney when requested (33.2)
o Black: must give guardian a copy of the will, but make sure you have proof that the person is the
guardian/attorney, and that the power of attorney is effective. Only executor has a right to the orginal copy of
the will.
 Guardian of property shall not dispose of property that the guardian knows to be a specific gift in a will (s. 35.1):
o (2) Doesn’t include gifts of money
o (3)(a) Doesn’t apply if disposition of property is required for the guardian’s duties
o Black: the overriding obligation of the guardian is to provide for the incapable person’s care.
o (3)(b) Doesn’t apply if the guardian makes a gift to a person entitled under the will and s. 37 (to make gifts
or loans to the person’s friends and relatives) to receive it
o Black: So a guardian has a duty to try to preserve assets that are specific gifts in the will, to preserve the
wishes of the testator.
 If a person has an RRSP, they have to make a decision by age 69 either to convert into a RIF or an annuity which
provide for periodic payments to reduce tax impact. Question is can the substitute decision-maker convert the RRSP, and
continue the beneficiary.
Anti-Ademption Provisions
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Normally, if a specific gift in the will is not in existence at the time of death, it adeems and the beneficiary gets nothing
(except in the case of expropriated proceeds, or insurance proceeds for damaged property) s. 20(2) SLRA
Ademption does not apply if the guardian had to dispose of a specific gift to care for the incapable person.
Ademption does not apply to beneficiary and beneficiary receives corresponding right to, from residue, proceeds
equivalent to the disposition, without interest (s. 36(1)). If the residue is not enough, the beneficiary shares in the
residue in proportional amounts to which they would otherwise be entitled (s. 36(2)), subject to contrary intention (s.
36(3))
o Black: From a practical perspective, didn’t the guardian use up the residue first anyway, so how would there be
anything for the specific beneficiaries to take? Only way is if residue was exhausted, the specific gift is disposed of,
and there is some excess from the proceeds of disposition when the incapable person dies.
Differences between a power of attorney and guardianship
 Cost – power of attorney is cheaper. Guardianship involves a number of court costs.
 Simplicity/Efficiency – easier and simpler to get a power of attorney; less cumbersome.
 Autonomy – Grantor retains autonomy to make decisions with power of attorney. Less autonomy for grantor.
 Authority – Power of attorney may be wider in scope than the guardianship, which is constrained by the court order.
Standard of Care for Guardians
 Fiduciary: and must perform duties with diligence, honesty and integrity and do so in good faith, for the benefit of the
incapable person (s. 32(1))
 Standard of Care:
o If receiving compensation, then standard is that of person in the business of managing the property of
others (s. 32(8))
o If not receiving compensation, then standard is that expected of a person of ordinary prudence would
exercise in the conduct or his or her own affairs. (s. 32(7))
 Liability of Guardian:
o guardian of property is liable for damages resulting from breach of duty (s. 33(1))
o court may excuse person from liability if they acted reasonably and in good faith
4. Other Types of Directives
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Living will: expression of a wish not to be kept on life support
o Until 1995, this document was nothing more than an expression of a wish.
o However, now under the SDA, these “wishes” can have legally binding effect by virtue of the continuing
power of attorney for personal care.
o These requests can be stated within a general power of attorney.
o Substitute Decision Act has indirectly made living wills binding: If the guardian knows of a wish or
instruction applicable to the circumstances that the incapable person expressed while capable, the guardian
shall make the decision in accordance with the wish or instruction, s. 66(3)(1).
 So, the technical approach is to insert a paragraph directly into the PAPC, so the attorney can’t
deny they know the grantor’s wishes. As a practical matter, though, probably unlikely that a
person would be forced to take you off life support if your guardian doesn’t want it.
Advance medical directives: a shopping list of medical treatments and grantor’s directions regarding them.
o Black comments that this may be imprudent in light of changing medical technology.
o Wishes of testator can be better assessed by those who know him.
o Could also add a precatory note to will and speak generally.
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Related Matters of Proof
1. Proof of Death and Related Matters
a) Generally
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Issue is how to deal with people who have gone missing and not been heard from in a long time—absentees.
o What should be done to preserve their assets?
o What are third party right to share in the absentees estate, insurance proceeds or pensions?
o What are the absentee’s entitlements to share in the estate of a third party?
b) The Common Law
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Proof of death must be established before an estate can be administered – administration is suspended until
determination.
Common law deals with proving death in 2 separate ways:
o Inference drawn from facts & evidence; or
o Presumption of death.
Inference from available facts:
 Used where testator or beneficiary disappears.
 Inference relates to a series of events suggesting that a person is dead (e.g., boating accident or storm).
 Rule: If the inference of death flows from circumstances surrounding disappearance, then the person is considered
prima facie dead. Showing that an explanation other than death could account for the facts can rebut this prima facie
case (with contrary evidence).
 Onus: continues to be on person who depends on inference of death to claim a right. In case of beneficiary’s
disappearance, this is often the executor or anyone claiming through the beneficiary.
Application of presumption of death:
 To trigger presumption of death
o Person must be missing for 7 years (unexplained continuous absence); and
o Has not been heard of by people who would normally receive news from that person if he were alive.
 This raises a presumption, which shifts onus to those claiming the person is alive to rebut the presumption.
o If the absence was explainable (strong motive for disappearing), it would rebut the presumption.
 Must be reasonable attempts to locate the missing person (advertisements, reasonable inquiries), MacGilchrist.
Proof of the date of death
 Not based on a presumption
 Must arise through an inference from the facts.
 The court may declare that the absentee was dead by a specified date or died on a specific date.
Reappearance of a person considered dead:
 Absentee may recover any part of the estate that has not been distributed.
 The law is unclear on the right of the absentee and any persons among whom his property has been distributed.
o May be able to recover part of estate from a beneficiary, subject to limitation period and so long as the
property is traceable.
 Must balance interests between the orderly transition of assets and the rights of the beneficiary
against rights of the absent person.
 The personal representative is not liable for distributions made in good faith.
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Authority of court to decide death:
 Without statutory authority, a court cannot declare someone dead, they can only find that there’s enough evidence for a
person to swear an affidavit saying they are dead
 Court requires statutory authority to declare a person dead
c) Special Statutory Provisions
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There are some statutory provisions that either (i) presume a person dead or (ii) provide a certificate by an official as
proof of death: Conveyancing and Law of Property Act (presumed dead after 7 years absence); Insurance Act (same);
Pensions Act, Government Annuities Act, Canada Shipping Act
d) Administering Property Under Absentee Act
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Interested parties can apply to have a beneficiary declared an absentee and their share of an estate becomes a trusteeship
but estate can be wound up.
o “Absentee” – one who has resided in Ontario and has disappeared, and there is no knowledge whether the
absentee is dead or alive.
o This is before a specific order that death occurs. Deals with situation in the interim (interim period for
presumption of death cases).
Doesn’t apply to accident situations, which have an inference of death.
Court will appoint a committee to administer property of the absentee and spend money from the estate in attempt to
trace whereabouts of the person.
e) General Statutory Reform
Uniform Presumption of Death Act
 An interested party can apply to the court for a declaration of death to be made simpliciter, which has effect for all
purposes requiring proof of death.
 Requirements: s. 2(1)
(a) Person must have been absent and not in contact,
(b) No reason to believe living; and
(c) Must be reasonable grounds for supposing the person is dead.
 The court determines the date of death.
 If the person turns out to be alive, the court may order the return of such property.
Re Miller (1978) ON HCJ
Facts: Guy disappears on the way to Centre Island.
Held: Don’t have to prove that person died on a particular date. Once you establish the presumption of death, the date of
death becomes a factual matter that is to be decided based on the evidence.
Declarations of Death Act (2002)
 Provides a process by which you can obtain a court order declaring a person to be dead in circumstances where there is
no physical evidence available, but it is reasonable to presume death.
s. 2(1) An interested person may apply to the Superior Court of Justice for a declaration that the person is dead.
Must be served on notice to any interested person of which the applicant is aware (family members, etc.)
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Court can make an order in one of 2 circumstance:
1) if the person has disappeared in circumstance of peril
o This means that circumstance could have explained how the person died it is reasonable to infer that the
person died.
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2) if the person has been absent for at least 7 years
o Where no who reasonably would have had contact with that person has had contact, and there is no
reasonable explanation for the person’s disappearance.
o
s. 3: If there is not enough evidence to declare death, the Court has the authority to grant an order under the
Absentees Act. This allows someone to manage property on the absentee’s behalf.
s. 6 If the person is declared dead, and later turns up alive..
(1) if an order has been made, and all or part of the estate is distributed, the distribution is final, and the “dead”
person is not entitled to recover the property
(2) this doesn’t apply if s.5 applies onus is on personal representative ahs reasonable grounds to believe that
the person is not dead, they shall take no further steps to distribute the estate.
(3) The court may, if of the opinion that it would be just to do so, make an order to whom the property was
distributed, to reconvey it to the individual, or pay a specified amount of money. In deciding whether it is
just, it shall consider all the circumstances, including inconvenience ort hardship to the beneficiary.
(5) Anything that hasn’t been distributed when the person is found alive is held in trust for that person and is to
be returned to them.
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An estate trustee may use these provisions if they can’t locate a beneficiary and want to wind up an estate.
2. Proof of Lost Wills
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Problem arises if the original will is lost is it an automatic intestacy? Not necessarily.
Will must be probated in solemn form using 3-part test from Lefebvre.
o Photocopy cannot be probated in common form.
Despite absence of original will, can still get contents (photocopy) validated. Make application and serve interested
parties: beneficiaries under the will you are propounding, those who will benefit if will is not accepted (i.e. on intestacy
or under previous will).
Lefebvre v Major (1930) SCC
Facts: Decomposing testator found. His clothes are burned to prevent the spread of grossness.
Held: Must establish three things to prove the contents of a lost will:
1) Must prove due execution
 Must show formal requirements are met E.g., lawyer’s evidence that he made it in compliance or photocopy
2) The contents of the will must be satisfactorily proved: e.g., reliable testimony or photocopy
3) Evidence must rebut presumption of revocation (animo revocandi)
 Where a will is missing and the testator last had possession of it, the court presumes it’s missing because the testator
destroys it
 Presumption rebutted in this case.
 Here, there was good evidence that the testator would have kept the will on his person and his clothes were burned.
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If have signed photocopy, will help to prove contents and due execution, will just need to show number 3.
Evidence of lawyer would be useful, if you don’t have a copy of the will. Can attest to: contents and due execution, still
left with number 3 though.
Standard of Proof: Balance of probabilities, although some suggestion that the second requirement (contents of will)
should be proved beyond a reasonable doubt
Re Oliver Estate (1987) ON Surr. Ct.
Facts: In 1973, testatrix gave legacies (Legacy to a friend, income from residue to friends daughter, capital of the residue to
a charity). Made a codicil in 1979 that changed executor (from trust company to a friend). Trust company sent
original will to testator in 1979. As late as 1985, testator referred to will as a “good will”. Testator died in 1986. At
death, only the codicil was found but solicitor had a copy of the will. Application was made to probate the will copy
and original codicil.
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Held: Will’s contents were proven and both documents were admitted to probate. Presumption of revocation rebutted
based on four factors:
1. Contents were reasonable (made sense);
2. Evidence that testator recently affirmed existence of will;
3. Factual circumstances did not suggest that testator had a change of heart;
4. Alternate explanation for document’s absence – she was in a nursing home and original could have lost.
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Revocation of a Will
1. Introduction


A will can only be revoked in accordance with provisions of statute.
Two main types of revocation: (1) Operation of law, (2) Act of testator.
2. Vitiating Factors

In addition to failure to meet statutory requirements, a revocation can fail for the same reasons a will would fail: undue
influence, lack of capacity, mistake, fraud, and inadvertence
o Capacity: Revocation is a testamentary act, so the testator must have the same capacity when revoking as
when making a will.
 Destroying a will when incapacitated or drunk will not revoke a will
o Inadvertence: a will destroyed inadvertently is not revoked
o Undue influence: revocation under undue influence also not revoked: see below
Hubley v. Cox Estates (1999) NS SC
Facts: Testator had two sons: one married, one single, HIV+ and living with and taking care of her. She made a will leaving
her entire estate to the son who lived with her. When the married son found out, he went to the T’s house, drew lines
on the pages of the will and wrote “void” on them, then had her execute the altered will.
Held: The revocation is invalid because son exercised undue influence over testator. She was sick, old, and upset by the
fighting amongst her family members over the will.
3. Revocation by Operation of Law
a) By Marriage
i) Generally


Marriage revokes a will (s. 15(a)):
o When a person gets married, their will is automatically revoked.
o This effectively presumes that the deceased intents the result of intestate succession, unless they make a
new will.
Makes sense from a moral and public policy standpoint: people should be taking casre of their spouse and issue upon
death
Exceptions:
1) The will is made in contemplation of marriage, s. 16(a) of SLRA
o Case law interprets this to mean, in contemplation of marriage to a specific person (name the person)
o There are no rules about how far in advance this can be
 but can’t say in contemplation of marriage sometime
2) Where spouse elects to take under the will (within one year of death) s. 16(b)
ii) Validity of Marriage

Since marriage revokes former wills, validity of marriage can be an important issue for beneficiaries under the will
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


Can also be voidable (formal requirements not met, non-consummation, coercion)
o Can only be challenged by the parties, and only while both are living
A marriage can be void (lack of capacity, mistaken identity)
o Can be challenged by any person with a financial interest in the matter i.e. a beneficiary
Note : capacity required to enter into a marriage is significantly less than capacity required to make a will.
Banton v. Banton (1998) ON Gen. Div.
Facts: 88-year-old terminally ill man marries 31-year-old retirement home waitress and changes his will to exclude his 5 kids
and leave his estate to her.
Held: The testator did not have testamentary capacity—the wills are invalid by reason of undue influence. However, he did
have capacity to enter into marriage, so the former will in favour of his children is revoked and new wife and kids
take on intestacy.
Note: difficulty with this decision—shouldn’t the courts be able to find that marriage is a testamentary act and require a
higher degree of capacity to avoid decisions like this?
iii) Will Made in Contemplation of Marriage
Succession Law Reform Act
s. 15 A will or part of a will is revoked only by,
(a) marriage, subject to section 16…
s. 16 A will is revoked by the marriage of the testator except where
(a) there is a declaration in the will that it is made in contemplation of the marriage…
Re Coleman (1976) Chancery Div.
Facts: Professionally drawn will said “gift undo my fiancée Muriel.” Testator married Muriel.
Held: The delightfully technical court held that this clause did not satisfy statutory requirements. The use of “wife” indicates
an intention to have the marriage endure. “Fiancée” could have indicated an intention to only have the gift remain in
effect until marriage. But, words are not determinative, make determinations on the facts. Indications must be in the
will.
Black: should make clear in the will what you want to happen if the marriage doesn’t happen whether the marriage is a
condition of the will.
iv) Election

It is possible that a will makes a provision for a surviving spouse, even though it was not made in contemplation of
marriage (think: made a gift to someone who was at the time a friend or cohabitee, and later married)
Succession Law Reform Act
s. 16 A will is revoked by the marriage of the testator except where
(b) the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse
and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario…

Distinguish s. 16(b) election from Family Law Act election. It is for different purposes and has a different time limit.
Re Browne and Dobrotinic (1958) ON HCJ
Facts: Wife makes election, but files it in the wrong office. Purchaser objects to her having title of house.
Held: Election valid. Court noted that she filed it in Surrogate Court (instead of Supreme Court, as required by the then
legislation), which was reasonable, and that to deny her the election would frustrate the spirit of the provision.
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v) Powers of Appointment
(don’t need to know)
 Power of appointment: the authority granted from one person to another to direct the disposition of the first person’s
assets. The first person is called the donor and the second is the donee
o Unless the power is restricted the donee can distribute the property either by deed or by will (can give the
assets away while alive, or direct the distribution of them after his/her death)
 If a donee made a will pursuant to a power of appointment, and the will was revoked by marriage, this would be contrary
to the purpose of the provision (since the assets being distributed are the donor’s, not the donee’s). The legislation delas
with this problem:
Succession Law Reform Act
s. 16 A will is revoked by the marriage of the testator except where
(c) the will is made in exercise of a power of appointment of property which would not in default of the
appointment pass to the heir, executor, or administrator of the testator or to the persons entitled to the estate
of the testator is he or she dies intestate.
Re Gilligan (1950) Prob. Div.
Facts: Testator had some sort of power of appointment, made a will distributing the legacies, then married a second wife.
The issue is whether the parts of the will exercising the power of appointment are revoked.
Held: Where a settlor of a power of appointment has provided that in default of appointment, no widow/er of the appointee
should take any part of the assets, the portion of the will exercising the power of appointment will be preserved. If
on the other hand, if there is no limitation on who can take on the terms of the power of appointment (allows an
intestacy, say) , the will should be revoked.
b) By Dissolution of Marriage
Divorce revokes a will, s. 17:
 Where a spouses obtain a final declaration of divorce or nullity of marriage (from date decree becomes effective)
 Exception: contrary intention in will
Succession Law Reform Act
s. 17 (1) Subject to subsection (2), a will is not revoked by presumption of an intention to revoke it on the ground
of a change in circumstances.
 Example: have one child and leave them everything and have fallout with child; this changed
circumstance does not create an intention to revoke
s. 17 (2) Except where a contrary intention appears in the will, a will is revoked upon a judgment absolute of divorce
or is declared a nullity, and the will shall be construed as if the former spouse had predeceased the testator
and
(a) no gifts to spouse;
(b) spouse cannot become executor or trustee; and
(c) spouse cannot get a special power of appointment.
Black: Why does the clause use the words “former spouse had predeceased the testator”?
o Allows for a gift over to substitutionary beneficiaries to take effect. I.e. would leave to wife and then to
kids, so this allows the kids to inherit (or else would go out on intestacy as entire will would be revoked).
Note: with marriage, the entire will is revoked
o With divorce, only provisions dealing with spouse are revoked
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Black: where leave gift under a will where described in relation to a spouse (i.e. to my wife’s brother), s. 17(2) does not
address, so gift takes effect, since this is determined as at the date of he will. s. 17(1) says circumstances don’t create
intention to revoke. The estate could try to argue that the gift was a conditional gift i.e as long as he remained a brother in
law.
Re Billiard Estate (1986) ON HCJ
(evidence of contrary intention)
Facts: Testator left residue of estate to Gertrude Alva Billiard. He made the will after the parties separated, but before final
divorce decree.
Held: Provisions invalid. Contrary intention must be “in the will.” The contrary indications were from the facts surrounding
the will – i.e. when he made it.
4. Revocation by Act of Testator
a) Generally

A will can be revoked through:
o A subsequent document where a declaration of intention to revoke is made (i.e. a new will or codicil)
o Destroying it
b) By Subsequent Document
Succession Law Reform Act
s. 15 A will or part of a will is revoked only by,…
(b) another will made in accordance with the provisions of this Part (revocation by subsequent document); or
 This provision stands for the principle that a subsequent will revokes a prior will
(c) a subsequent writing that (revocation by subsequent document):
(i) declares an intention to revoke the will; and
 intention does not need to be express, can be implied from the will
 includes normal, privileged, and holograph wills
(ii) made in accordance with the provisions of this Part governing making of a will
 Complies with statutory formalities

It isn’t necessary for a subsequent will or codicil to have a revocation clause (although most do), so long as it can be
shown that it was the testator’s intention to revoke the will.
o If there is no express revocation, both documents will normally be admitted to probate and the first will be
revoked to the extent that it is inconsistent with the second.
Re Davies (1928) Chancery Div.
(intention to revoke)
Facts: Clause 8 makes gift of all farm and lands in the county of Monmouth. A codicil is added that repeats gift and adds
another property to list. The additional gift of property failed. The issue was whether it was caught by clause 8.
Held: If a will or part of will has been expressly revoked, it remains revoked even though the subsequent gift fails.
However, if there’s merely an inconsistency between the two documents and the gift in the last one fails, the gift in
the first document stands unrevoked. Since, there was merely an inconsistency and no intention to revoke, gifts
passed under the original clause. Simply repeating gifts and adding another did not show an intention to revoke the
earlier part of the will containing the same property.
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c) By Physical Act
i) Generally
Succession Law Reform Act
s. 15 A will or part of a will is revoked only by,…
(d) The testator “burning, tearing, or otherwise destroying” it OR by some person at his request and in his or
her presence and by his or her direction with the intention of revoking it (revocation by physical act).
Case law states requirements to satisfy this section:
 Animo revocandi: intention to revoke will
o Mistakes of law or fact lack necessary animus
 Actual destruction of will:
o Cannot just cross-out sections or cover them over
o Cutting out signature of testator will revoke the will (Re Jones)
 Note: the intention to revoke and the actual destruction must coincide
 Black: But even if have not complied with all these requirements, for practical purposes you may not have a will that
could be proved in solemn form.
o i.e drunkenly burning a will without the physical will, and assuming no way to prove the will (no
photocopy, say), for practical purposes there isn’t a will.
ii) By the Testator

A testator who revokes a will through destruction should completely destroy it.
o A partially destroyed will carried a presumption that the testator did it, but the onus of proving animus
revocandi is on those alleging revocation.
o Any part remaining will not be revoked, unless the will cannot stand without it (i.e. the signatures are
missing).
Leonard v. Leonard (1902) Prob. Div.
Facts: Testator made a 5-page will. Testator and same two witnesses had signed every page. Later, the first two pages were
removed and new pages were inserted; these new pages were signed by the testator and the same two witnesses.
Held: Intestacy. The destruction of pages 1 & 2 revoked the will. Pages 3-5 could not stand on their own because their
contents were unintelligible without pages 1 & 2. The addition of new of pages 1 & 2 did not create a valid will.
Although they were signed by the testator and witnessed by the same two witnesses, the court cannot infer that the
testator intended to create a new will (new pages 1 & 2 by themselves). Rather, the court must infer that the testator
was marking them as being part of the original will, which was now invalid.
Comments:
 If pages 3-5 had been intelligible, they would have stood (destruction of old pages 1 & 2 would constitute revocation of
part of the will), but pages 1 & 2 would still be invalid because they were not a valid codicil or incorporated by
reference.
 If pages 1 & 2 were valid, nothing below the signature could have been valid
 What should the testator have done to make the entire will valid? Re-sign at the end of page 5 to republish the entire will.
 Likely get different result today because court would look for testamentary intention.
Note: This is an example of the danger of testator meddling with their wills after they have been executed.
 How to prevent?
o Lawyer should make only one original signed copy of the will, and to keep it out of the hands of the
testator or advise the client that there are technical rules that may result in an unintended revocation.
 Do lawyers have any duties to beneficiaries in this respect? To the testator?
o May depend on the nature of the retainer—is it still alive once the will is signed? Do you do quickie wills,
or do you advise the client on a regular basis. In most cases, the lawyer doesn’t have an ongoing obligation
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o
once the will is signed. Black doesn’t think the solicitor could be found negligent for not advising the client
in this regard.
The obligation to the beneficiaries is even more remote beneficiaries have no privity of contract with the
lawyer, but it possible through the law of tort that a lawyer could owe a duty of care to beneficiaries. Under
what circumstances will a lawyer be negligent? Unclear, and circumstances such as Leonard have never
been litigated.
iii) By Another


If another person destroys the will it must be:
o In the presence of the testator AND
o At the direction of the testator
A will destroyed, but not at direction of testator is an invalid revocation (Gill v. Gill)
Delack, Hickey and Camp v Newton (1944) ON Surr. Ct.
Facts: Testatrix send will to sister for safekeeping. Later, she sends a letter instructing the sister to destroy her will. Sister
complies.
Held: Revocation invalid. The statute requires destruction by direction to be in the presence of the testatrix. In this case, this
was the desired result since, the subsequent will was held invalid and the prior will was virtually identical.
5. Alterations in a Will






Alterations are changes made on the face of the will
Alterations are not effective unless made in compliance with statutory requirements
Presumption that any changes on the face of the will were made after the will was executed. Parties claiming changes
were made before attestation have the onus of proving that this was the case.
Important: Must ask whether it is an alteration or a codicil.
o If an alteration, must comply with s. 18.
Distinction between alteration and codicil:
o The words of an alteration do not necessarily stand on their own
o A codicil must stand on its own (but can be written directly on the face of the will, so long as it has
meaning without reference to the words around it)
Examples:
o If testator writes “revoked” through a clause, it is a valid holograph codicil because it stands on its own
o If testator draws a line through the clause, it’s an invalid alteration because it doesn’t comply with statutory
requirements
o If testator crosses out “X” and changes it to “Y.” Not a valid codicil because it doesn’t stand on its own and
not a valid alteration because of non-compliance with statute
Succession Law Reform Act
18(1) To alter the will after it is made, alterations must be made in accordance with subsection (2). Alterations not
in accordance with the provisions have no effect except to invalidate words that the make provisions “no
longer apparent.”
18(2) For alterations to a normal will to be valid, the testator and subscribing witnesses must sign the alteration.
(Alterations to privileged and holograph wills are valid if signed by the testator). The signatures must be:
(a) in the margin or some other part of will opposite or near to alteration; or
(b) at the end of or opposite to a memo referring to the alteration and written in some part of the will.
Re Douglas Estate (1986) NFLD SC
Facts: T covers the words of a grant with liquid paper and writes a new gift on top of it.
Held: Alteration not in compliance with statute - has no effect except to nullify words that are no longer apparent.
“Apparent” means visible through “natural means,” like holding up to a light. It is impermissible to use chemicals,
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extrinsic evidence or handwriting experts to decipher what is not naturally “apparent. Here, the words were
obliterated.
Re Manuel (1960) AB TD
Facts: T wrote word “revoked” over a clause in an attested will and signed and dated it.
Held: Valid holograph codicil. The court reasoned that the words stood on their own.
Comment: Would not have been a valid alteration because needed a witness, s. 18.
Example: Can you make an unwitnessed, hand-written alteration to an attested will?
 No, need witnesses, (unless will was originally a holograph will), as per s. 18.
 However, you could have a holograph codicil. (Re Manuel)
6. Conditional Revocation
Arises in three situations:
1. Belief that the will is already void:
o If the testator revokes the will because he thinks it’s void, the revocation is invalid because it lacks
intention to revoke the will (Giles v. Warren)
2. Mistake of fact or law:
o Where testator revokes the will based on a mistaken fact (or law), the intention is dependant on that fact,
and if the fact is not true, the necessary intention is absent (Re Southerden)
3. Dependant relative revocation:
o Where the testator revokes a will (or provision) in anticipation of making a new one, with the intention that
the revocation not be effective unless and until a new will takes effect, and a valid will does not take
effect, the revocation is invalid. This allows old wills to remain effective until the new one is effective. (Re
Service).
o Black: this is very difficult to prove.
Re Sorenson (1982) BC SC
(mistake of fact)
Facts: Provision said: to my cousin, but if dead, to my sisters-in-law equally. Testatrix revokes this provision with a codicil
thinking that the cousin and the two sisters-in-law were dead, instead leaving the gift to a friend. Only one sister was
actually dead.
Held: Revocation invalid. The court was satisfied from the codicil and extrinsic evidence that codicil was made based on
mistaken belief that both sisters were dead. Therefore, the revocation lacked the necessary intention.
Re Southerden (1925) CA
(mistake of law)
Facts: Testator destroys a privileged will thinking his wife would get everything under the rules of intestacy.
Held: Mistake of law. Lacked necessary animus to revoke the will.
Black: Why did he do a will in the first place? Facts are a bit fuzzy.
Re Formaniuk (1963)
Held: Codicils are revoked if a will is revoked (the reasoning is, presumably, that there is nothing left to change).
Re Jones (1976) UK CA
(dependant relative revocation)
Facts: Testatrix instructs her solicitor to change her will because her nieces were dead. The solicitor was unavailable. The
testatrix dies. A mutilated will was found. Devises to nieces were cut out and so was the testatrix’s signature.
Held: Will was revoked; no dependant relative revocation. When a mutilated will is found, ask four questions:
1. Was the will mutilated with the intention of revoking it?
2. If there was the intention to revoke, was it conditional?
3. If there was condition, what was the nature of the condition?
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4. Has that contingency been satisfied?
For the court to apply the doctrine of dependent relative revocation, the court must be assured that the revocation was only
done conditionally upon the new will taking effect. Simply contemplating the making of a new will is not a
conditional intention. Here, there was doubt that the revocation of the will was really conditional. The testator had
been mad at other beneficiaries and thus she may not have mutilated the will on the condition that the solicitor could
change the will. In other words, she may have intended to disinherit the beneficiaries right then and there by
defacing the will.
7. Revival of Revoked Wills



Black: Distinguish revival from determining what was the last valid will of the deceased.
o i.e. If will #2 is invalid, will #1 is not revived, rather it is valid because it is the most recent will.
Revocation of a will does not validate a prior will
A will can only be revived if done in compliance with the statute
Succession Law Reform Act
s. 19(1) A will or any part may only be revived by:
(a) by a will that shows an intention to give effect to the will or the part that was revoked
(b) a codicil that shows an intention to give effect to the will or the part that was revoked, or
(c) by re-executing the will with the formalities.
(2) Except where contrary intention shown, if part of a will is revoked, and then all of the will is revoked, and then
the whole will is revived, the revival only revives the will at the date of the last revocation (not the whole
thing).
s. 21 The will is deemed to have been made at the time it is revived.
Note: the effect of s. 21 is the same as the common law doctrine of republication. This would affect things like
persons answering to a certain description
Re Ott (1970) ON Surr. Ct.
Facts: Testator makes a will. Testator separates from his wife. Testator makes a second will and sends it to his wife saying
she could make changes if she wanted. Wife says she prefers the first will. Testator destroys the 2nd will in front of
his lawyer saying that he intended to revive the first will.
Held: It is impossible to use the doctrine of conditional revocation to achieve a revocation of a revocation. Once a will is
validly revoked, whether it is conditional or not, a prior will is not revived even though it was the testator’s intention
to revive the latter by destroying the former. All revivals must comply with the statutory requirements.
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Administration of an Estate
1. Duties of Personal Representative
The essential duties are:
1. Deal with the person’s remains.
o Not bound to follow wishes of deceased BUT must ensure that arrangements are comparable to the
person’s station in life.
o This right continues after the funeral
2. Ascertain assets of deceased
o Identify, list and account for them and realize assets by converting into cash if necessary and in the best
interest of the estate (only if these assets are not specifically distributed in the will).
o Good idea to put a notice to creditors in the paper
3. Bringing and defending any legal actions of behalf of estate
4. Ascertain and pay debts and liabilities of deceased
o Funeral and administrative expenses, testator’s debts and taxes
o Note: Under section 159(2) the ITA, the personal representative must file a terminal income tax return and
obtain a certificate that all taxes have been paid (or security given) before distributing the estate. In the
absence of such certificate, the personal representative is personally liable for the unpaid tax (s. 159(3))
5. Pay the legacies and gifts under the will and establish trusts under the will
o Pay money into court for minor if not directed to set up trust.
o Distribute specific legacies first
o Distribute the residue
o Technically, if trusts are established, the executor’s duties cease and the trustee takes over. Practically, the
trustee and administrator are usually the same person
Black: unless the administration of an estate involves no discretionary decision-making, you are better of naming a single
executor (rather than your 3 kids, say). If more than one, decisions must be made unanimously unless you provide
otherwise. This can lead to big problems between the executors when they don’t agree.
“Executor’s Year”: In an estate of average complexity, it can take the executor to get the assets in order in order to be
available for distribution to beneficiaries. This isn’t a rule, just a general idea of the timing of the administration of
an estate
2. Payment of Debts
NB: Payment of debts and taxes are two areas where the estate trustee can be exposed to personal liability.
o Estate trustees may also have personal liability for the assets of the deceased under environment laws. Not
dealing with this in the course.
a) Payment of taxes



Personal representative is responsible for filing any outstanding income tax returns.
o This includes filing a “terminal return” covering the period of January 1 to the time of death. This is in
addition to the regular returns that must be filed.
o Terminal return must be filed either April 30th following death or 6 months following death, whichever is
later.
s. 159(2) ITA: a whole bunch of people who are trustees of funds (trustee of estate are included) must get a clearance
certificate from Canadian Revenue Agency saying that all taxes owing by the deceased were paid in full before they can
distribute the estate.
Personal representative may be personally liable for taxes if they do not get the clearance certificate
83
Many personal representatives don’t get this certificate because of delays (can only apply after the final tax
return for the estate has been assessed, then it takes up to a year for the certificate to be issued) and because
they know that deceased’s affairs are in order
Personal representative may keep monies in reserve to pay taxes (so the distribution of the estate isn’t held up)
o Personal representative is responsible for reporting income earned on reserve
o Depending on nature of assets, it may be an advantage for beneficiaries to have gains in a reserve so that
gains are realized pending distribution
Remember: there is a deemed disposition of assets on death
o


b) Payment of debts other than taxes
Priority
 Secured creditors first
 Funeral expenses
 Testamentary expenses (costs of administration, personal representative’s compensation)
 Unsecured debts
 Only when debts are satisfied can legacies be paid
Executor’s personal liability:
 Black: the “notice to creditors and others” in newspapers: claims must be filed by a specified date, or the assets of the
estate will be distributed. The custom is to publish these in 3 consecutive editions of newspapers of sufficient circulation
in a jurisdiction where it is reasonable to assume the deceased had creditor. Practice is the specified date is 1 month from
the date of the first ad.
o Variation of practice: an elderly person with low likelihood of having creditors could have fewer than 3
ads. A person who moved might be appropriate to place ads in both jurisdictions. Could also choose not
to do it at all to save money  often costs $1,500.
o Potential liability for estate trustee: If the executor has not reasonably tried to ascertain debts and a creditor
appears after the assets have been distributed, the estate trustee can be held personally liable up to the value
of the assets distributed.
 Executor can ask beneficiaries for indemnity against potential creditors, but that may mean the executor has to sue the
beneficiaries to collect, and can only collect to extent of the beneficiary’s assets. Not a great idea for the executor.
Which assets bear the burden of debts?
 Personalty not bequeathed at all, or in residue
 Real estate (in trust to pay debts not charged with debts charged with debts
 Pecuniary legacies (general specific)
 Estate over which testator had general power of appointment
 Paraphernalia of testator’s widow (whatever that is)
3. Distribution of Estate





Once the personal representative has taken control of the testator’s assets and obtained probate or letter of administration,
and paid the estate’s debts, he must distribute the property to those beneficially entitled to it.
o If there is a will, he must follow its terms
Must deliver or transfer specifically bequeathed or devised property
Must established trusts
In the case of pecuniary legacies, must convert assets to cash in order to pay
Residue: absent a contrary intention, must covert assets to cash in order to distribute.
o If the beneficiaries agree, can divide assets in specie and distribute that way
Re Schippman Estate (1999) BCSC
84
Facts: Testator left 50% of residue to wife, and the rest to his children equally. She took real estate in specie, paying the
excess in cash into the estate. Further, she devalued the property to take into account the accrued capital gains tax.
Held: This is fine.
If beneficiaries are minors or mentally incapable persons:
 If will directs to establish a trust, or pay to parent or guardian of child or incapable person, do that.
 Otherwise, money is paid into court to the credit of the minor or incapable person, with notice to the Public Guardian and
Trustee.
 If the PG&T is the guardian, the money is paid directly to them.
o Note: the court has jurisdiction to order that money belonging to a minor (or income from property
belonging to a minor be paid to them if necessary or proper for their education or support, or if it will
substantially benefit the minor—Children’s Law Reform Act s. 59(1)(c), (2)
4. Obtaining Grants (Probate)
Two ways to prove a will:
 Common form:
o To prove a will in common form, need affidavits of execution, original will and cheque for probate fees.
o Court prepares letters probate by giving you a photocopy of the will with a seal on it (they keep original).
 Solemn form:
o Done before a court who pronounces on the validity of the will
Probate Jurisdiction of the Court
Estates Act – s. 7
 An application for a grant of probate or letters of administration shall be made to the Ontario Superior Court of Justice
and shall be filed in the office for the district in which the testator or intestate had at the time of death a fixed place of
abode.
Timing of Probate
 Cannot apply for probate until 7 days after the death of the deceased
Doctrine of Relations Back
 Personal representative may deal with the assets before probate is granted by her authority is derived from the will, not
probate
Types of Estate Trustees
 Court will issue a certificate of appointment for one of the below (formerly called letters probate)
 Estate trustee with a will
o If appointed in will
o Minors and those of unsound mind are disqualified, and anyone criminally responsible for the testator’s
death
 If a minor is appointed sole executor, s. 26 of the Estates Act provides that the minor’s guardian
will be estate trustee under the minor reaches the age of majority
o Bankrupts and people serving long criminal sentences may be
o An estate trustee not resident in the Commonwealth will have to provide security
o Formerly “executor”
 Estate trustee without a will
o Normal priority of entitlement-- s. 29(1) of the Estates Act
 Surviving spouse, partner, same sex partner
 Children
 Grandchildren
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 Great-grandchildren
 Father or mother
 Brother or sisters
 Beneficiaries under the will
o Must reside in Ontario-- s. 5 Estates Act
o Formerly “administrator”
o Must give a bond of double the amount of the estate to the Accountant of the Ontario Court (except
government, trust companies, and a surviving spouse on intestacy).—s. 35, Estates Act.
Litigation Administrator
o Where a will is being challenged-- “A certificate of appointment of an estate trustee during litigation”
o Where no personal representative, the court can appoint a Litigation Administrator to represent claims
against the estate of deceased—s. 9.02(1) Rules of Civil Procedure
o A personal representative can sue or be sued on behalf of the deceased for any tort except libel and slander.
Executor de son tort
o Person who does not have the authority of the personal representative, but meddles and assumes function of
an executor
o May be sued by beneficiaries
5. Planning Considerations

There are ways to avoid probate fees (estate administration taxes), but they often have other negative consequences.
Re Eurig (1998), SCC
Facts: Widow’s probate fees totaled $5,400. She challenged the validity of probate fees by provincial government. Argued
that the fee is an indirect tax, which is outside the jurisdiction of the province, so constitutionally invalid.
Held:
Trial: dismissed application
CA: upheld trial decision – in light of the legislative evolution of probate fee system, the ad valorem (based on value) fee
structure is properly authorized by section 5(c) of the Administration of Justice Act. The court also held that it was a
fee and not a tax.
SCC: The court held that the provinces clearly have jurisdiction to enact fees, but found that probate “fees” were not really
fees because they were contingent upon the value of the estate. These were really taxes. If it were a fee, the charge
would have been the same for everyone regardless of the value of their estate. Under 92(2) the province only had the
jurisdiction to levy a direct tax. The court said that it was a direct tax (since it is a direct tax on the estate through the
administrator in his representative capacity, not indirectly on the administrator). However, under the Constitution
Act, all taxes must originate from legislation. Here, the taxes were in the regulations. The court concluded that the
“fees” were unconstitutional and ultra vires because they sought to impose a tax without clear and unambiguous
authorization from legislation to do so.
Comment: Suspended the declaration of invalidity for a period of 6 months. In response, the Harris government enacted the
Estate Administration Tax Act and imposes the same rates as before (“finally the government calls a spade a
spade”). The Eurig estate was specifically exempted.
Black: Thinks the suspension of invalidity went too far—should have just said it was unconstitutional and let the legislature
deal with it.
Probate fees:
 Now called estate administration taxes—must be paid in order to get certificate of appointment
 Based on the value of assets that flow through the estate.
o So if you can structure your affairs so that assets don’t flow through the estate, you won’t have to pay
probate taxes.
 The value is determined based on the gross value of the estate you can’t deduct liabilities (with the sole exception of
mortgage debts against real estate in Ontario).
 1992: NDP government tripled the rates for amounts over $50,000.
o Must pay 0.5% on first $50,000
o Must pay 1.5% on value of estate over $50,000
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Technically, the rate is described as “$5 fee/tax on each $1,000 or less of assets up to $50,000, and
$15 on each $1,000 or less of assets over $50,000”
o Black: probate fees are relatively small: $1 million = $15,000 aprox.
So, need to take into account the actual probate tax savings vs. other potential risks and consequences of avoiding
probate taxes through will substitutes.
History
Should you probate a will?
 It is technically not necessary to probate a valid will because an executor derives his authority from a will, not from the
letters probate.
 Should get probate where 3rd parties (e.g. bank, transfer agent) need proof of the testamentary dispositions.
 Devices to escape probate (and the problems they create):
o Jointly held property: because of right of survivorship
 Deemed disposition: if you put the property in joint tenancy after holding it in your name, there
will be a deemed disposition. That means that if there is an accrued gain, you will pay 50% tax on
that. (Note: this does not apply to spouses because of rollover provisions)
 Attribution back: gains may be attributed back to estate
 Can eliminate a source of liquidity: estate may not be able to sell the asset
 Need to be extra careful in the case of a principal residence, because you can lose the
principal residence exemption for capital gains when you transfer property to a joint
tenancy.
o Insurance policies with designated beneficiaries: because these do not pass through deceased’s estate
o Inter vivos gifts/Trusts
 May avoid probate tax, but may have other adverse tax consequences
o Multiple Wills
 Keeps assets not requiring probate out of the will
 May create drafting problems as a later will may revoke a former
Granovsky Estate v. Ontario (1998) ON Gen. Div.
Facts: Testator has assets of $500,000 and owns shares of private company worth $1 million. Had two wills, one required
probate, the other did not.
Held: Acceptable effective way to deal with estate; people are entitled to arrange their affairs in whatever manner they wish.
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Impact of Family Law Act on Estate Administration
SEQUENCE OF EVENTS FOR SUPPORT
1. Equalization under the Family Law Act (only legally married persons);
2. Support under the Family Law Act (expanded definition of spouse);
3. Dependant under the SLRA (children, expanded definition of spouse).
o Courts will look at what a person received under the FLA equalization and support, in determining
dependant support.
 Legally married person can claim all three.
 Common law spouse could get support under FLA and SLRA.
 Child can only get support under SLRA.
1. Scope
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Right to matrimonial assets (property) has so far only been extended to legally married people
M v. H (lesbian couple) struck down definition of spouse in relation to support, but not distributions of matrimonial
property
Nova Scotia v. Walsh, SCC, upheld provisions of Nova Scotia Act limiting definition of “spouse” for the purpose
equalizing NFP to common-law couples. The distinction between common-law and married couples in family property
regimes doesn’t violate s. 15 of the Charter.
Purpose of equalization of Net Family Property (NFP):
 Codification of this “economic partnership” comes in the form of section 5(7) of the Family Law Act
(presumption of equal contribution – “deemed contribution”).
A one way right:
 Only the surviving spouse has the right to claim an equalization payment. Estate of deceased cannot claim
(s. 5(2)).
2. Provisions for Equalization under the Family Law Act
5(7) Purpose of FLA is to recognize childcare, household management and financial provision is a joint responsibility. The
deemed equal contribution can only be varied in accordance with s. 5(6).
Definitions:
1(1): “spouse” means (a) married people or (b) people who enter into a voidable marriage in good faith
 e.g. bigamy in a jurisdiction where sanctioned
 not common law spouse
18(1): “matrimonial home” anything ordinarily occupied as a family residence before death
 spouses can have multiple matrimonial homes
 homes can change character, date of determination is before death
 value of matrimonial home will form part of value of owner’s NFP, but can deduct mortgage debt
4(1): “net family property” means the value of all property the spouse owns on valuation day, except property in 4(2) after
deducting:
(a) the spouse’s debts and liabilities
(b) the value of property other than the matrimonial home, that the spouse owned on the date of marriage, after
deducting the spouse’s debts and other liabilities, calculated as of the date of the marriage.
“property” means any interest, present or future, vested or contingent, in real or personal property and includes
very comprehensive definition, almost anything except jobs and professional licences
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“valuation date” is the day before the testator died.
4(2): Exclusions from NFP
1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date
of the marriage
 If receive home from inheritance and move in with spouse, can’t deduct.
2. Income from property referred to in paragraph 1 if the donor has expressly stated that it is to be excluded from the
spouse’s net family property
 Black: people giving inter vivos gifts need to disclaim FLA if they want to preserve the effect of the
gift after marriage (e.g. parent’s gift to married daughter).
3. Damages or a right to damages for personal injuries, nervous shock, mental anguish, etc. (civil suits received during
marriage).
4. Proceeds or a right to proceeds of a policy of life insurance
 Anybody, not just your spouse, names you as a beneficiary (you received or have right to receive).
5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced
 Black: if proceeds of 1-4 go into a matrimonial home, they will form part of NFP.
 Seems to exclude capital gains (increases in value of inherited or gift property can be excluded under 2
or 5).
6. Property that the parties have agreed by a domestic contract is not to be included in the spouse’s net family property
 Prohibition: cannot contract out of (1) possessory rights to matrimonial home or (b) child support.
 Validity of contract: a domestic contract is only valid if: (a) there is full disclosure (b) the parties
have sought independent legal advice.
NFP Summary: NFP = All property on valuation date – Exclusions – Debts and Liabilities on valuation date – Net (assets
less liabilities) value of property owned at marriage (except matrimonial home)
Authority for Equalization (equalization on death), 5(2): When a spouse dies, if the net family property of the deceased
exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half the difference
between them.
 Black: Public policy consideration – FLA views marriage as economic relationship and equalization is done to redress
inequity; but if surviving spouse had >50% of assets they get a windfall. Why shouldn’t beneficiaries get 50% of
partnership assets? Could argue legislation is only designed to benefit surviving spouse.
Onus, 4(3): The onus of proving a deduction or exclusion from NFP is on the person claiming it.
NFP of less than zero, 4(5): If a spouse’s NFP is less than zero, it shall be deemed to be zero.
Unequal payments, 5(6): The court may award an amount other than half if it would be unconscionable given (higher
threshold than “unfair” – didn’t cover in detail in class):
(a) failure to disclose debts and liabilities existing at the time of marriage
(b) claiming debts that were incurred in bad faith
(c) part of family property claimed contains gifts of other spouse
(d) intentional or reckless depletion of NFP
(e) they’d get a disproportionately large sum for a period of cohabitation under 5 years
(f) one party incurs a disproportionate amount of debts
(g) a written agreement that is not a domestic contract
(h) any other circumstances relating to the acquisition disposition, preservation, maintenance or improvement
of the property.
Calculating the Equalization Payment
 Step 1: Identify the day before death (V-Day)
 Step 2: Identify property held by each spouse on the day before death
o Determine its value. Black says this is problematic (e.g., fair market value, present value, sale value may
all be different)
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Step 3: Determine exclusions from NFP (s. 4(2)).
o This may involve tracing (s. 4(2).5)
o Onus is on person claiming
Step 4: Determine deductions (s. 4) for:
o Debts and liabilities at valuation date; and
o Pre-marriage property (minus any debts on it)
o Onus is on person claiming.
Step 5: Add up the remaining property, which is the NFP for each spouse.
o If the NFP is less than zero, it shall be deemed to be zero.
Step 6: Determine one-half of the difference between the greater and the lesser NFP – s. 5(1)
o This amount represents a debt owing (not a property entitlement) by the spouse with the greater NFP to the
spouse with the lesser NFP.
Step 7: Consider, given the factors in s. 5(6), whether this an equal distribution would be unconscionable
a) Election for NFP – Spouse’s Perspective

Section 6 allows the surviving spouse to elect within 6 months of death to take an equalization payment instead of what
is provided by the will/intestacy.
6(1):
when a spouse dies leaving a will, surviving spouse can elect to take under the will or elect under s. 5 to take
equalization payment (not both)
6(2):
when a spouse dies intestate, surviving spouse can elect between equalization payment and intestacy
6(3):
when a spouse dies partially intestate, surviving spouse can elect will and partial intestacy or equalization payment
6(4):
a surviving spouse who elects to take under the will or under the Succession Law Reform Act (or both – if partial
intestacy), shall also receive the other property to which he or she is entitled because of the 1st spouse’s death
(designated as beneficiary, jointly held property).
6(5):
Surviving spouse gets gifts and NFP if the will so provides.
6(7):
If a surviving spouse elects for NFP and receives payment for life insurance policy or lump sum payment under
pension plan, and there is no written designation under s. 6(6) (in the will, expressly providing that the surviving
spouse should get proceeds and equalization payment), the deceased spouse’s personal representative may recover
the excess amount from the surviving spouse.
o When choosing equalization or to take under the will, must consider life insurance. May elect to
take under the will, even if receive nothing under the will except for life insurance proceeds if
these proceeds are greater than equalization.
6(8):
Where a surviving spouse elects for NFP, the gifts made to him or her in the will are revoked and the will is to be
interpreted as though the surviving spouse had predeceased the testator (allowing gift-overs to take effect) unless
the will expressly provides that the gifts are in addition to entitlement under section 5.
6(9):
When a surviving spouse elects to receive under s. 5, spouse shall be deemed to have disclaimed the entitlement
under Part II of the SLRA (intestate succession).
6(10):
If an election for NFP is not made within 6 months of death, the surviving spouse will be deemed not to have
elected for equalization.
o Personal right of spouse, thus the surviving spouse’s executor cannot make this election (e.g. if the
spouse dies shortly thereafter)
o the surviving spouse’s attorney/committee can make this election (because still alive)
o time can be extended by s. 2(8)
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o
Black: remember previous election of marriage revoking will, could elect to ratify/receive. Think
about possible relationship between the two and timelines.
6(11):
If spouse doesn’t file, he/she will be deemed to have elected to take under will or on intestacy, unless court orders
otherwise.
2(8):
Court may extend time to file if satisfied that:
1. apparent grounds for relief;
2. relief unavailable because of a delay incurred in good faith; and
 just know there is case law on what this means - need to show have taken some steps, i.e. awaiting
valuations, etc.
3. no person will suffer substantial prejudice by reason of delay.
6(12):
The spouse’s entitlement under section 5 has priority over,
(a) the gifts made in the deceased spouse’s will, if any, subject to (pay debts incurred in good faith)
(b) the person’s right to a share of the estate under Part II (Intestate Succession)
(c) an order made against the estate under Part V (Support of Dependants) of the Succession Law Reform Act,
except for an order in favour of the child of a deceased.
 Child dependant of deceased is highest priority, then surviving spouse.
6(13):
The spouse’s entitlement to NFP does not have priority over a gift by will made in accordance with a contract that
the deceased spouse entered into in good faith and for valuable consideration, except to the extent that the value of
the gift, in the court’s opinion, exceeds the consideration.
 Note: subordinates spousal rights to bona fide creditors. Gift that resulted from binding, legal contract; gift
is reasonable in terms of consideration.
 Black: can find judge sympathetic to dependants who will reduce what creditors get to help dependants.
Rae v. Rae (1987)
(extending time)
Facts: Married in 1958, separated in 1978. Applicant learned about Family Law Act in March of 1986 but took no steps to
inquire into rights until November 1986 (7 months). Sought an order to extend time pursuant to s. 6(12).
Held: Refused to extend time for making election. A court will only extend time if it is satisfied of good faith. Good faith is
not merely the absence of bad faith. Must take positive steps to inquire into your rights.
Varga Estate v. Varga
(validity of election)
Held: Spouse’s election was not valid. An election will be invalid where “widow” making the election does not
understand the consequences of the election. It was clear that she did not know what she was signing.
Note: This only applies in limited circumstances.
Re Bolfan Estate (1992) ON Surr. Ct.
(consequences of electing for NFP—revocation)
Facts: Husband elects for NFP under s. 6(1) of FLA. Husband then took steps to attack the validity of the will (on the basis
of lack of testamentary capacity). He was hedging his bets.
Held: The court does not have the statutory authority to revoke an election, nor is there any statutory provision allowing a
revocation. Once a valid election is made, it cannot be revoked. Once the election is made, the party has no
standing to attack the validity of the will.
Comments: This case seems to contradict Varga, however, they are distinguishable in that the court in Varga determined that
a proper election had not been made. The testator could have avoided this problem by filing a motion to extend time
pending the determination by the court of the validity of the will.
Panangaden v. Panangaden Estate (1991)
Facts: Husband and Wife married in 1977. The parties separate. The Husband dies in 1990 willing everything to their son,
but the wife receives insurance benefits of $100,000. Wife then dies. Wife could have claimed an equalization
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payment at the date of separation. His estate claimed that the insurance benefits should not be included in NFP
because the election was made under s. 5(1) (during lifetime right of equalization) instead of s. 5(2) (right on death).
Held: Motion denied. The right between the spouses is personal, according to 7(2). An application based on 5(1) may be
continued after death if filed before death, but it may not be commenced after death (as it would be
commenced against the estate). After death, an application must be brought under s. 5(2) and is subject to the
limitations in s. 6.
b) Election for NFP – Personal Representative’s Perspective
6(14): No distribution of assets shall be made in the administration of estate for 6 months unless spouse gives written
consent or court orders.
 Note: distributions are payments to beneficiaries – this section does not prevent the administration of estate,
such as funeral expenses, taxes, etc.
6(15): No distribution shall be made within 6 months, or while notice of application has been filed, unless authorized by
the court or consented to by spouse
 Once receive equalization notice, no distribution unless applicant consents, even beyond the 6 months.
6(16): If spouse elects after 6 months, any assets distributed after the 6 months and before the extension order shall not be
included in the calculation of NFP
 Dramatic consequence for spouse of not doing anything.
 Question: could personal representative be held liable if they do not act immediately after 6-month period
passes…so gifts which could have been excluded, get included when spouse elects (causes beneficiaries a loss)?
Probably not, because of the concept of the executors year. If the estate trustee goes beyond that, or does
virtually nothing in the 6 month to 1 year period, there might be a case depends on reasonableness.
6(17): Suspensory provisions (subsections (14) and (15)) do not prohibit reasonable advances paid to dependants of
deceased for support
 Note: Personal representative should get authorization from court or spouse because could be held personally
liable for value of distributions under s. 6(19). A court should probably make the determination of whether
someone is a legal dependent, and “reasonable advances” are very subjective why take the risk?
6(19): If the personal representative makes a distribution that contravenes subsection (14) or (15), and the court makes an
order against the estate for distribution of NFP and the undistributed portion of the estate is not sufficient to satisfy
the order, the personal representative is personally liable to the applicant for the amount that was distributed or the
amount required to satisfy the order (whichever is less)
6(20): If spouse has concerns the spouse can apply under this section for an order suspending the administration of estate
until court renders a decision.
 Difference between this and s. 6(14) is this section includes other administrative duties other than distribution of
the gifts to beneficiaries payment of debts, selling off assets of the estate.
7(2): Entitlement under s 5(2) is personal as between the spouses but
(a) when there has been a separation during lifetime or improvident depletion of a spouse’s NFP during lifetime) ,
and an application based these sections (ss. 5(1) or (3)) is brought during lifetime, the application can be
continued after death.
(b) an application based on subsection 5(2) may be made by or against a deceased spouse’s estate
 Question: how can an application be made by a deceased spouse’s estate? This contemplates a situation where
one spouse dies, the surviving spouse is entitled to equalization, but dies (within 6 months) before bringing an
application for equalization. This wouldn’t work if the first spouse to die is the one entitled to equalization
one way equalization—intended to protect the living. But see Rondberg…
 Language issue: this s. talks about a “deceased spouse’s estate”, but we have already said that isn’t
possible.
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So if both spouses die in a common accident, each is deemed to have survived the other (SLRA s. 55).
Does this mean that for the purposes of the FLA, the estate of the spouse with the lower NFP could
make an equalization claim? Hmm…
7(3): The surviving spouse must bring the application no later than 6 months after the first spouse’s death.
 Note: the filing of the election doesn’t actually start the process of a suit. So you must file both the election and
the application within 6 months
Rondberg v. Rondberg (1989)
Facts: Surviving spouse dies within 6 months of spouse. No election is filed.
Issue: Can the personal representative file an election?
Held: Personal representative cannot file an election on behalf of the estate because the right under s. 5(2) is personal
as between the spouses.
Comments: It is possible to imagine creative ways to get around this:
 Surviving spouse completes the forms for making the election before death and leaves them with her personal
representative with instructions when to file the election to file when she dies.
 Surviving spouse makes a codicil giving authority to personal representative to make decisions about equalization (she
would have already had to sign forms).
 Substitute decision-maker for property, guardian of property, power of attorney for property can make choice for spouse.
Note: Unclear if the personal representatives of the surviving spouse can bring an application. So if the surviving spouse has
made the election, then dies, can the PR bring an application? Maybe this is the situation contemplated by s. 7(2)
Ward v. National Trust Co. (1990)
Held: A committee of a spouse or an attorney acting under power of attorney can make and file an election on behalf of a
surviving spouse
Note: there are 3 possible events: making of the election, the filing of the election, and the making/filing of the application.
Rondberg seems to say the personal representative cannot make of file the election, but can make and file the
application (if the surviving spouse had already made and filed the election before dying).
3. Inequities Surrounding Equalization
1) Property held jointly between spouses: prior to v-day, each spouse has a half interest but upon death the
surviving spouse has a whole interest, so the NFP calculation includes the interest in the deceased’s property,
but not the survivor’s. Thus the survivor receives a windfall and the estate loses out.
 Comment: a court could regard the surviving spouse as having a contingent interest whole (falling
under the definition of property) whose condition is satisfied upon death?
 Example: H and W jointly own a bank account of $100k, the H also owns property worth $200k. On
death, the wife gets equalization of the $200 ($100 to her), but also gets the entire bank account by
right of survivorship. In the end, the H’s estate would get $100, and the W gets $200. This is because
the V- day is the day before death.
2) Property held jointly between a deceased spouse and a third party: NFP is calculated on the day before
death when the surviving spouse has a half interest in property, but after death, the third party gets the estate
absolutely. Thus, the wife may obtain an order that she cannot collect upon.
 Note: This doesn’t apply if the property is a matrimonial home (s. 26(1). In that case the joint
tenancy will be severed immediately before death.
3) Insurance policies with cash surrender value: Proceeds of a policy, by virtue of life insurance do not form
part of NFP, but policy with a cash surrender policy is included in the NFP. Thus, the surrender is included in
deceased’s NFP, but cannot be collected and the surviving spouse gets an advantage.
 Cash surrender value: a type of policy with value to the owner. The owner can surrender it during
lifetime, and get cash. If he doesn’t, and dies, the cash surrender value disappears, but the beneficiary
gets the death benefit.
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Death Benefit: is not included in NFP. They are specifically excluded (s. 4(2)4, FLA) BUT see s.
6(7)—benefit credited against equalization unless T provides for both
Example: H has policy with cash surrender value of $100k. On death, the $100k is included in the
NFP (because it is calculated on the day before death), so W gets $50k, plus the death benefit. This is a
problem, because the cash surrender value doesn’t actually exist once the H dies it disappears.
4. Deductibility of Debts (Estate Liabilities)

Debts and liabilities as a valuation date are deductible from NFP (s. 4(1)), but what about debts that arise on death?
o This is an issue that arises because of the V-day being the day before death.
Debts fall into 2 categories:
 Estate administration and testamentary expenses (probate tax, executors fees, legal frees).
 Income taxes (remember: there is a deemed disposition of assets at death).
Starkman v. Starkman (1990) ON CA
(deductibility of taxes)
Issue: Can a spouse deduct taxes and disposition costs as a debt or liability for the purposes of calculating NFP?
Held: Future taxes and disposition costs may only be deducted if they were, in the near future, necessary or likely. For
example, if capital gains taxes would be owed if assets were cashed, and that is likely, taxes are deductible, but not if
capital gains taxes would be owing at some unknown time in the future.
Comment: Can deduct tax liability in determining NFP.
Note: this case was decided in the context of a separation, but the principles apply to
Bobyk v. Bobyk
(deductibility of administration fees)
Held: The tax liability of the deceased spouse arising from deemed dispositions immediately before death is deductible
in determining the NFP. Liability for taxes existed in unquantified form before death and became quantified on
death. However, administration fees cannot be deducted because they do not arise until after death.
Comment: Lawyers fees etc. are therefore not deductible from NFP
Black: this is inequitable. The estate is being valued at a gross value, not a net value because you can’t deduct administration
expenses.
5. Special Status of Matrimonial Home
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Cannot be treated as excluded property: Matrimonial home forms part of definition of NFP and cannot be treated as
excluded property.
Possessory rights: Part II of the Act confers substantial possessory rights to the surviving spouse.
Joint tenancy with third party is severed: s. 26(1) deems a joint tenancy held with a 3rd party to be severed
immediately before death (converting to tenancy in common).
o The half-interest continues to form part of the deceased’s NFP.
o Were it not for this provision, 3rd party could take entire home (ensures half-interest stays with deceased’s
spouse).
 Also applies if the equalization entitlement could be satisfied out of other property.
 Also applies when spouse doesn’t elect for equalization and takes under the will
 OLRC suggests give the surviving spouse a lien against the 3rd party in the above
situations, which would be removed once the obligations to the surviving spouse are
satisfied.
Rent-free: Section 26(2) allows the spouse who has no interest in the matrimonial home, but is occupying it at the time
of the other’s spouses’ death, to occupy it rent-free for 60 days after the spouse’s death (this is for social policy
reasons).
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Whaley Estate v Whaley (1993) ON Gen. Div.
Facts: Father and daughter hold title to matrimonial home in joint tenancy. It later becomes the matrimonial home. Father
did not mention the house in his will and left residue of his estate to certain charities. His widow made no claim to
equalization. If the tenancy were severed under s. 26(1) daughter would get ½ and ½ would fall into the residue and
go to the charities.
Held: It is not necessary to read s. 26(1) literally and sever a JT whenever a person dies. A JT is severed only when a
surviving spouse elects for equalization of NFP. Consequently, the daughter received a full interest in the home.
Note: Overturned in Fulton
Fulton v Fulton (1993) ON CA
Facts: Home left to husband and sons as joint tenants. Later, husband remarries and this home becomes his matrimonial
home. Husband dies. Widow applied for a direction that s. 26 be applied literally. Son wanted it to be applied
notionally, arguing that his 50% should be taken into account for purposes of NFP, but the ownership pass under the
normal rules of JT. There were insufficient assets to satisfy all debts and gifts
Held: Section 26 should be applied literally, even if the equalization claim can be satisfied by other property.
Whenever a spouse dies being JT with 3rd party, the tenancy is severed. The impact of section will not be
restricted to case where spouses elect.
Comment: Does this case really overturn Whaley? Might the scope of the ratio be limited to cases where the spouse is an
interested party?
Question: Which of the beneficiaries of the estate are liable for the equalization payment? Which parts of the estate does the
equalization payment come out of?
Answer: The support claim falls rateable on all the other beneficiaries of the estate under s. 68 of the SLRA. The FLA is
silent on the issue of who is responsible for equalization.
Question: What is the relationship between rights of support of dependants and the equalization claims? Which has priority?
Answer: The only right that is available to a surviving spouse under the FLA is the right to equalization, and it is only
available to legally married couples. But once this is paid, the surviving spouse may still have a right to support
under The equalization claim has priority, then rights to support under the SLRA (because the amount of support
will depend on the amount of equalization.
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Support of Dependants
1. Introduction
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Freedom of testation has been limited since 1900 by legislation allowing dependants to seek support from the estate
Purposes
o To provide support and maintenance to dependants if they have not been adequately provided for in the will
o To reduce the state’s obligation to support dependants
Canadian legislation doesn’t force a share (as in the US0, rather gives the courts discretion to determine who is a
dependant, whether the testator provided for them adequately, and how much the dependants should receive.
2. The Application
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Empowering Statute: Succession Law Reform Act
Jurisdiction of the court: sections 57 and 58(1) SLRA give the Ontario Superior Court of Justice jurisdiction to hear
an application by any dependant, for support, and such is deemed to be on behalf of all dependants, so as to avoid
multiple proceedings (s.60).
Notice: notice of application for support must be served on all interested parties (s.63(5)), including the Personal
Representative (s.67(1)) and, if the application is brought by or on behalf of a patient in a psychiatric facility to which
the Mental Health Act applies or a resident of a facility to which the Developmental Services Act applies, the Public
Guardian and Trustee (s.74(2)).
o Re Dentinger.
Failure to give notice: the application will be set aside (Re Weir), although the court has the power to dispense with
notice in appropriate cases (s.63(6)).
Limitation for making application: Application for support must be filed within 6 months of the appointment of the
estate trustee (grant of probate) (s.61(1)).
o Note: there is effectively no limitation period where a will is not probated, because here an estate trustee is
never really appointed.
o If executors don’t have notice, they can proceed with administration of the estate.
o Wise for dependants to put executor on notice that they might file a claim.
o Court has authority to extend this period –allowing the application to be made beyond the limitation period
but no authority to claw back distributions made in good faith (s. 61(2))
o FLA limitation period = 6 months from date of death. Here it is 6 months from appointment of trustee.
o Can make motion to extend the date.
Effect of application: once an application for support is made and notice is given to executor, the distribution of the
estate is stayed (s.67(1)) but the executor can make reasonable advances for support of dependant beneficiaries (s. 67(2))
(again, wise for executor to get consent of applicant and/or court to avoid personal liability under s. 67(3))
o Once get notice, distribution is automatically stayed. Can also suspend administration (below).
Suspension of Administration: can apply to court to suspend administration of the estate (s.59)
o With Family Law Act, you can’t suspend the administration of the estate (only its disposition).
Re Dentinger (1981) ON Surr. Ct.
Facts: Testator left most of his estate to his 4 children by his first marriage. Two of the daughters are executors. Five weeks
after appointment, the wife gives notice of an intention to make an application for support to solicitor of executor. In
the following 3 weeks, the executors distributed the bulk of the estate. Four months later, the wife formally applied
to the court. Wife claims that the stay under s. 67(1) commenced upon informal notice to the solicitor.
Issue: Was the notice given to the solicitor sufficient to stay a distribution?
Held: Distribution stayed upon receipt of informal notice. Found executors personally liable under s. 67(3). The court
gave a very broad interpretation to the phrase: “where an application is made and notice thereof is served.” Stay on
distribution occurs when much less formal notice is given to the estate trustee. I.e. letter is sufficient. Applicant’s
costs on a solicitor and client basis (on the SCC scale) were awarded—court was obviously pissed.
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3. The Applicant
Identifying dependants – s .57
 SLRA uses a two-part test to define dependant:
1. Must be a degree of relationship:
(a) spouse (includes legally married, cohabitees, and divorced);
(b) parent (includes grandparent or anyone who has demonstrated a settled intention to treat the
deceased as a child of the family);
(c) child (include a person you have a settled intention to treat as a child, except foster child); or
 could include no biological connection, i.e. step child.
(d) sibling (brother or sister).
2. Must have been (financial connection between deceased and dependant):
(a) providing support; or
(b) under a legal obligation to provide support immediately before death (no prescribed time
period, but doesn’t mean literally the moment before death).
 I.e. in arrears for child support payments.
 Don’t need to be providing all day-to-day expenses.
 Any amount of financial contribution paid on a regular basis that was relied upon, i.e.
receive $1000 every year in birthday cheque.
 Difficulty is determining if something is support or a gratuitous gift. For example, does
an annual birthday gift constitute support? Probably not, but possible if the gift is
substantial and the recipient can show he relied on it to support himself, then maybe.
 Doesn’t need to be monetary could be free room and board, for example.
 Legal obligation to provide support: sometime clear-cut minor children, adult but
infirm children and a spouse.
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Recently case law: Tataryn (SCC) upheld in Cummings (ON CA): principle imported was that a moral obligation is
equivalent to a legal obligation for the purposes of dependant support. Goes completely against the idea of testamentary
freedom. Says that a testator has a moral obligation to make a fair and equitable distribution of the estate.
Black: this brings in a lack of predictability and certainty, since the wishes of the testator may not take effect.
o Example: may not be able to disinherit a child for having a lifestyle you don’t agree with
Oosterhoff: The purpose of the statute is to give effect to the testator’s wishes, not satisfy the expectations of potential
beneficiaries.
Re Cooper (1980) ON Div. Ct.
Facts: Trial judge did not find a common-law wife to be a dependant because the two were sharing expenses and Ms.
Hampton’s contribution, based on her income, was greater than his contribution, based on his income.
Held: To be a dependant under the SLRA, it is not necessary to actually be dependant. The court found that, the deceased
was under a legal obligation to support Ms. Hampton. The legal obligation to support was found in ss. 14 &15 of
the FLA. The deceased was able to acquire more assets by her greater contribution to the relationship.
4. Adequacy of Support
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Must provide adequate support: where a testator/intestate has not made “adequate provision for the proper support
of a dependant,” the court may order such provisions as it considers adequate (s. 58(1))
o Note the vague and general language; it gives the court wide latitude
o Former Dependents Relief Act said for “future maintenance”  suggested indefinite/ongoing support.
o Legislation now suggests that dependants strive towards self-sufficiency and financial independence.
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Parties who can bring an application: a dependant, a parent on behalf of a dependant or by the Ministry of
Community and Social Services, if any of them is providing an allowance or benefit towards the support of the
dependant (s. 58(2&3)).
o Note that an application for support by a dependant does not survive the death of the dependant (GolverkBerger v. Berger Estate)
Date for assessing the adequacy of support: date of the hearing of the application (s. 58(4))
Factors to consider in determining amount and duration support—the court shall consider (s. 62):
(put subsections in here)
o dependant’s current and likely future assets and means
o dependant’s capacity to contribute to own support
o dependant’s age and health
o dependant’s needs in light of accustomed standard of living
o the measures and time required for the dependant to become self-sufficient
o the proximity and duration of the dependant’s relationship to the testator
o contributions by the dependant to the testator’s welfare
o contributions by the dependant to the acquisition and maintenance of testator’s property or business
o contributions of dependant to the realization of the testator’s career potential
o whether the testator had a legal obligation to support the dependant
o the circumstances of the testator at the time of death
o any agreement between the testator and the dependant
o any previous distribution by the testator in favour of the dependant
o the claims of other dependants
o if the dependant is a child, his aptitude and prospects for education and his need for a stable environment
o if dependant is a child over age 16, whether he has withdrawn from parental control
o if dependant is a spouse, any conduct by the spouse that amounted to a gross repudiation of the
relationship
 This is the only provision to consider conduct – it is clear that it is a very high threshold to meet
o the prejudice caused to the spouse by undertaking to care for a child and in domestic service
Black: There is little here that indicates a moral element. Most factors are purely financial.
S.62(3): The court can take into account any reasons given by the testator for making the support provisions they did.
s. 62(4): Weight given to testator’s reasons:
Black : good idea to write out your reasons if you are not going to provide support for someone. However, leaves the reasons
open for challenges— could challenge the provision based on mistake. For example, you say you aren’t providing
for one child because you bought them a house while you were alive. You would need to make sure this was a
correct fact!
Black: There is a huge amount of uncertainty in this area, especially now that the moral element is creeping into the exercise
of judicial discretion.
Re Davies (1979)
Facts: Wife dies leaving all property to son (dependant) including her home. The husband, an old man, couldn’t afford to
buy a new home.
Held: “Proper support” means more than just enabling the dependant to live decently and comfortably. It enables the court,
in appropriate circumstances to make provision for non essential things including luxuries. However, in doing so,
the court should strive to maintain the scheme of the deceased’s will. Here, it was appropriate to grant the husband a
life interest in the home.
5. Support Orders
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May impose conditions: court may impose such conditions/restrictions as it considers appropriate (s. 63(1))
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Suspensory orders: court can make an order suspending distribution of the estate until the support application is dealt
with (s. 59)
o Although the personal representative can’t distribute during the limitation pension, this is useful for things
like insurance proceeds and insurance benefit, as such an order will prevent the payor from making
payments to the beneficiary
Contents of order: provision may be made out of income or capital (or both) and an order may provide for … e.g.
limited period of time, lump sum in trust, transfer of property payable to agency etc. (s. 63(2))
o Notice: should be given to all interested parties, but the court can dispense with notice (ss. 63(5) & (6))
Interim orders: court can order interim support as it considers appropriate (s. 64)
o Re Pulver: s. 64 should be interpreted broadly and in a manner consistent withy its purpose. So an interim
order can be made even if there is chance the dependant might ultimately not be found to be entitled.
Can divert payments going to beneficiaries: court may at any time fix that a payment be paid by a beneficiary to
represent the part of the beneficiary’s share that would have gone to the dependant (this is rare) (s. 66)
Order payments to come from estate as a whole: the court may order charging the estate as a whole as it deems
proper (s. 68(2))
Power to vary: the court may at any subsequent date vary, discharge or suspend the order (s. 65)
Maldaver v. Canada Permanent Trust Co. (1982)
Held: Court cannot increase the amount of support previously ordered. Variation orders did not intend to “authorize a court
to vary a testator’s will on a regular basis.” (Based on NS legislation, which was identical to Ontario).
Comment: But this was the old statute.
6. Attempts to Evade Support of Dependants
Ways in which people try to evade supporting dependants:
 Enter into a contractual obligation in the will (because contracts rank higher than support)
 Inter vivos gifts
 Keep value in other instruments that do not flow through the deceased’s estate
o E.g. joint tenancy; designation of beneficiary under a RRSP or life insurance
 Contract out of support obligations
Statutory responses:
 Contracts must be bona fide: must be made in life, for valuable consideration, and be remunerated in will. (s. 71)
o Courts will scrutinize and can ignore contracts made in bad faith or claw back excess where consideration
is more than value of property.
 Power to deem assets as being part of the estate (s. 72):
 The capital value of the following transactions effected by the deceased before his or her death shall be included as part
of the estate and are available for charge: gifts mortis causa, money deposited in trust for another, money in an
account as JT, disposition of property held as JT, insurance, designation of beneficiary under RRSP
o There is a time element:
o Before his or her death (10 days before or 1 to 5 years?). Black says closer the transaction is to death, the
greater suspicion will be
 Court has the power to determine that the value of these assets will be testamentary dispositions
and will be included in value of estate and includable in an order to satisfy payment of support
order.
 Courts will exercises this where there are insufficient assets
 Clawback assets into estate, for purpose of calculating value of estate (which helps determine
value of dependency payments).
 Applicant for support has the burden of proof to show the assets originated from the deceased.
 (7) This section doesn’t affect the rights of creditors.
 Power to ignore contracts: A support order may be made notwithstanding any agreement or waiver to the contrary.
(s. 63(4))
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o
o
o
This would come up in the context of a separation agreement.
FLA requires unconscionability
Black thinks this provision may go too far, ignoring fundamental principles of contract law.
Moores v. Hughes (1981) ON HCJ
Facts: Husband dies making no provisions for support of wife, who he had divorced. He owed her support payments while
she was alive. Gwen was destitute and on welfare. Husband had $356,000 in assets “outside this will,” including
insurance monies. The ex-wife moves seeks adequate support under s. 58 alleging that these assets were subject to
the Act.
Held: Application granted. Monies from joint bank account were included in s. 72(1)(c) and so were monies from insurance
(s. 72(1)(g)). The fact that they had been distributed was no obstacle to the order of support (s. 63(2)(f)). A 1977
agreement to pay support was an important guidepost in determining the amount of the payment. It was $800 per
month, so she gets $1300 per month.
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Estate Accounts and Executor’s Duties and Fees
1. Estate Trustees
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Black: This is an area that is commonly litigated in the courts. It come up both in the context of estate administration and
guardianship of property/power or attorney for property
a) Duties
Essential duties of the estate trustee:
1. Get in the assets
2. Pay debts and legacies; transfer bequests and devises and set up any trusts required by the will; and
3. Distribute the residue
4. Keep proper accounts:
o R. 74.18: on application, the estate trustee must pass accounts
o R. 74.17: specifies what must be filed
 Based upon the cash basis of the accounts,
o Show every receipt into the estate and disbursement from the estate
o Where there are income beneficiaries (e.g., trust for life) and capital beneficiaries: must show receipts on
both revenue and capital side. There is different treatment, based on the type beneficiaries.
 Executor would not prepare the records in the Civil Procedure unless called on.
 If named as trustee, not bound to be a trustee (i.e. if would not be paid enough).
b) Passing Accounts
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The estate trustee is required to keep accurate record and account books. Passing accounts is the formal review of the
financial records of the estate.
There are no rules about how often the estate trustee has to apply to pass accounts
Can be an application by the estate trustee, or by a beneficiary
Procedure:
Personal Representative files an application setting out:
1. Accounts verified by affidavit (R. 74.17(1))
o 1st time: statement of assets at death (with cross-referencing to further pages showing what
subsequently was done with the assets)
o Subsequent time: statement of assets on the opening date, and account of all monies received and
disbursed, statement of investments, for end of period: statement of assets and liabilities, an
statement of compensation being claimed. s. 74.17(3)—Where a trust deals separately with capital
and income, separate accounts for the income and disbursement receipts for both the income and
capital accounts. Bills are normally on account of income. All accounting is on the cash basis.
2. Copy of letters of probate or administration
3. Copy of any previous judgment on passing of accounts
On return of appointment, the applicant files court’s notice and proof of service on all interested parties.
The court will then issue a judgement on passing of accounts
 May approve the accounts and compensation as is, or
 May amend the accounts
o Court has the authority to remove an estate trustee for serious mismanagement
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o
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Court can cause financial consequence to the trustee, normally through a reduction in the compensation that
the estate trustee would otherwise be entitled to. This could even go as far as reducing the compensation to
nil, and forcing an estate trustee to dip into his own pocket to pay back the estate.
Effect: the estate trustee is released from liability for anything that happened up to the point that the accounts were
passed.
R. 74.18(9) – passing accounts uncontested:
 People must file objections in advance of 20 days to the hearing.
 If objections are not outstanding at 20 days before the specified date, executors have 10 days to file material over the
counter without court appearance.
Accounts are passed when:
 Beneficiaries request, as beneficiaries have right to see
o E.g., what the assets were at death, what kind of capital encroachments were made.
o Executor makes a sworn affidavit
 Executor does so voluntarily:
o Because it gives court approval of all practices. It closes the account and no beneficiary (if properly served)
can contest it
o Approves the amount of compensation received by the executor
Passing the Accounts of the Estates:
 Court will not order when accounts are to be passed
 Normally, the courts do it once
 May be done more frequently in cases of trusts:
o May pass periodically (not less than 2 or more than 5) to legitimate payments to Executor and legitimate
distributions made
 Difference from guardian:
o Guardian is governed by court order and this order normally stipulates how often accounts are passed
Purpose for passing accounts:
o 1) to review the financial transactions of the estate
o 2) it allows an estate trustee to make a claim for compensation
 Passing accounts costs money – they must be done in civil procedure mode;
o Some fees are out of the executor’s pocket—3rd party payments may come out of executor’s
compensation. For example, the costs of paying someone to do the accounting for the estate trustee.
 Beneficiaries will prefer to avoid costs if they trust the executor
 If everyone approves of the executor’s compensation, it is as good as getting a court order
Alternative to formal procedure:
 An alternative to formally passing accounts is informal approval of the accounts
o Estate trustee would prepare a release releasing the estate trustee from liability.
o May not have to prepare detailed accounts—beneficiaries may be happy with a summary (so further
reduces costs)
 This cannot happen if there are minors with an interest in the estate or mentally incompetent:
o Office of the Public Guardian & Trustee or child’s lawyer would not object
o In such cases, people may seek an indemnity from child’s parent’s instead of formal passing of accounts
Executor compensation
Note: there is a distinction between the compensation that substitute decision-makers are entitled to (which is set out in the
SDA) and the compensation estate trustees are entitled to.
Estate Trustees Act – s. 61
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1) A trustee is entitled to such fair and reasonable allowance for the care, pains and trouble, and time
expended…
2) Amount may be settled before the court
3) The judge may allow fair and reasonable allowance for the care, pains and trouble, and time expended
4) Allowance may be had for a barrister if there was litigation or other legal work (other than basic administration)
o Black: courts will hammer a lawyer who tries to double-dip. Can’t charge legal fees on top of
executor compensation for something that is done in that capacity of an executor.
5) Nothing in this section applies to where the amount of compensation is fixed in the instrument creating the
trust (will)
o Black: also arises when there is an agreement between the trust company and the testator setting
out the compensation. The testator will sign this in advance of the will, and it will become part of
the will through the doctrine of incorporation by reference.
Note: there is no obligation for an estate trustee to keep time records.
Re Toronto General Trusts Corporation (1905) ON SCJ
(5-factor basis for determining compensation)
Consider:
1. Magnitude of trust
2. The care and responsibility springing from them
3. The time occupied in performing duties
4. The skill and ability displayed
5. The success which has attended their administration
Objective Approach
Informal tariff (usual percentages):
 2.5% on any receipt and 2.5% on any disbursement—both capital and income
 (2.5% on everything going into estate and 2.5% going out)
AND
Care and management fee – based on total value of the estate:
 2/5 of 1% of the average value of the estate per year.
Special fees: Exceptional fees done for exceptional results huge benefit acquired for estate or settled huge lawsuit. Factual
basis.
Comment: in large estates, it could result in overpayment; in small estates, it could result in underpayment
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The usual practice in Ontario is to use the objective approach in the application for passing of accounts
Note: The ultimate amount is total amount off the percentages no matter how many executors there are.
Lang Flaska: use the informal tariff approach, but use the 5-factor approach to evaluate whether the compensation under the
percentage approach is fair and reasonable
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As a rough rule of thumb: compensation can be up to 5% of the value of the estate, even if there is no ongoing
administration. Why? Bringing the assets into the estate is a capital receipt, and distributing the assets to the beneficiaries
is a capital disbursement. In this case, the estate trustee isn’t doing much though, so 5% could be open to litigation under
the 5-factor basis. It all comes back to the source of the authority in s. 61
Substitute Decisions Act
 Reg. 100/96: sets out the form of the accounts
 Some other reg prescribes the compensation for substitute decision-makers. It is a percentage approach—3% of receipts
and disbursements, and 3/5ths of 1% as the care and management fee.
o Probably less litigious as there isn’t room for “fair and reasonable” discretion.
o So more objective, but not necessarily always fair.
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Solicitor’s Fees, Duties, and Responsibilities
1. Solicitor’s fees
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Determined when passing accounts
Formerly, Estate Rules allowed fees to come from the estate as a matter of course
Set out in Tarriff C: amount that can be claimed by solicitors on unopposed passing of accounts. It is based upon the
receipts (only) of the estate.
o Black: silly, since the legal costs are the same whether you had $50 in receipts or $1 million of receipts
2. Obligations of Solicitor Taking Instructions for a Will
Solicitor must satisfy himself that:
 Testator has knowledge and approval of the contents of their property
 Testator has capacity
o This means Banks v Goodfellow factors
 There is no apparent undue influence or fraud. Important indicia:
o Testator is elderly;
o Suffers from delusions or lack of capacity;
o If the instructions differ substantially from previous will; or
o If not received form testator himself.
Unless these reasons exist solicitor need not take active steps (getting formal assessment).
Re Worrel (1970) ON Surr. Ct.
Facts: Testator disposed of entire estate to two friends. Mr. Barfoot (beneficiary) gave the solicitor the instructions for
drafting the will. Solicitor drafted the will and changed some of the instructions. Gave will to Barfoot to have it
executed. Solicitor had no communication with testator. No evidence that will was ever read to testator and weak
evidence that testator read the will.
Issue: Did testator have knowledge of & approval of the contents?
Held: Will invalid. The court concluded suspicious circumstances had not been removed and pronounced against the will.
With respect to the duties of the solicitor, the solicitor must receive instructions directly from the testator. If a
solicitor does not receive instructions from the testator, the solicitor must attend when the will is executed. At a
minimum the lawyer must ascertain the free will or capacity of the testator. A solicitor must ask non-leading
questions. Solicitor must ensure the testator fully understands the will. Here, the lawyer did not investigate the
extent of the estate or if the testator comprehended the extent the extent of his own estate and he accepted a will
from a third person without investigation.
Comments: A solicitor should not receive instructions from a third party BUT in cases where a third person gives
instructions for a will, the lawyer must be alerted to suspicious circumstances and do everything possible to remove
them.
Hall v. Fredrick (2001)
Facts: Bennett received some medication in the morning and drifts in and out of consciousness. Fredrick (lawyer) goes to a
hospital and meets a social worker and a nurse. When the testator is awake, he was lucid and communicated what
directions he wanted to make. He needed to be shaken or have the light turned on to maintain consciousness. Nurse
says he could make simple directives, but did not have the capacity to evaluate complex things (like his assets).
Social worker says he was quite lucid at first, making specific directions, but lost ability to communicate as time
goes on. Lawyer states that the Bennett seemed to be “with it,” but could not maintain consciousness and would stop
speaking mid-sentence. Lawyer’s memo to file: Testator drifted in and out of consciousness, was lucid when he
spoke, but was at no times confused. Testator stated that children could not get his estate, which would occur on
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intestacy. He made specific requests to benefit specific people. Meeting was terminated because he was going to die.
Lawyer refuses to make will because Bennett couldn’t stay awake long enough to know and understand the contents
of the will and because he was unable or unwilling disclose the extent of his property. Psychiatrist testifies that
lawyer was proper and reasonable in assessing capacity. Expert lawyer testifies that a lawyer has a duty to make a
will, even if you have doubts about a testator’s capacity.
Issues: Did the testator have capacity? Did the law meet his duty of care?
Held: Testator understood legal effects of the will, with respect to the reason for not disclosing assets may simply have
been hesitant about telling strangers. He knew important things about his property and it is not necessary to disclose
it in its entirety because it could have gone under intestacy. Moreover, the beneficiaries were sensible. With respect
to the doctor’s evidence, he does not say that Bennett did not have capacity; just that the lawyer’s judgment was
reasonable. Lawyer has a duty to the intended beneficiary. Solicitor found liable. The court creates a positive
duty on the party of a lawyer to carry out testamentary dispositions despite doubts about the capacity of the testator.
The solicitor has a duty write down his capacity assessment in a memo to file and prepare the will irrespective of
concerns.
General practice suggestions:
 Involve the testator to the greatest extent possible
 Send out questionnaire prior to meeting
 Meet with client and discuss, refine, and take instructions.
 Prepare draft will, send out for review and even though client may not understand all of the provisions, will be able to
understand the dispositive clauses and can digest the information
 Ensure that family members are not present when the will is signed
 Do your assessment of capacity: not medical BUT legal assessment
 Notify the client after has signed of any subsequent changes in legislation that may affect the will - this is not a legal
obligation but is a moral one
3. Duties Owed to Beneficiaries
Whittingham v Crease (1978) BC SC
Facts: Lawyer asks the wife of a son who was the main beneficiary to be a witness. This rendered the gift to son void.
Held: Negligent solicitor. Duty of care owed because Hedley Byrne. When someone seeks information from a person of
special skills and trusts the person, the person giving advice owes a duty of care. The solicitor was negligent
because the attestation requirement was not an esoteric point of the law of wills, one in which any lawyer and law
student knows or ought to know.
Ross v Caunters (1978) UK
Facts: Lawyer sent a will to testator with instructions, which stated that must not be signed by anyone who is a beneficiary.
The beneficiary’s husband attested and when will was returned it was unnoticed.
Held: Negligent. Damages to be paid to deprived beneficiary. (1) Solicitor is not immune from action brought by a client.
(2) Solicitor is not immune from claims brought by parties who are not his client. Factors that extend solicitor’s
duty to beneficiaries: (1) close proximity between lawyer and beneficiary (2) the proximity gave rise to a standard
of care (3) making lawyers liable would not give rise to boundless liability. If a duty of care is not owed to a
beneficiary, no one could make a claim because the estate would suffer no loss. The law must fill this lacuna in the
law.
White v Jones (1995) HL
(delay)
Facts: Testator mailed instructions to lawyer to draft new will outlining beneficiaries and amounts of gifts. Testator had a
change of heart about his daughters. Testator then requested that lawyer’s firm draft a will or codicil incorporating
new provisions. Lawyer did nothing for one month. Later, a clerk went on holidays and made arrangements to see
testator two weeks after he returned. Testator died before meeting with lawyer. Intended beneficiaries sued lawyer
for negligence. Beneficiaries were unaware of making of will.
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Held: Once you accept instructions and as a result of your negligence an intended beneficiary is deprived, you are liable. It
was irrelevant that beneficiaries were unaware of the making of the will. It was reasonably foreseeable that the
beneficiaries here would be deprived of the intended legacy. The lawyer has a duty to act with “due expedition and
care”. Duty of care arises upon taking client’s instructions.
Lucas v Hamn (1961)
Held: Solicitor was not liable for failing to understand the rule against perpetuities.
Smolinski v Mitchell (1995) BC SC
(duty to beneficiary vs. duty to testator)
Facts: Testator executed will stating that beneficiaries would be determined later. Three years later, testator contacted lawyer
to draft new will. Lawyer met testator in hospital and gave him a draft two days later. Testator wanted to leave car
and house to lawyer so lawyer told him that he had to get independent legal advice. Testator died before he signed
the will. Estate distributed on intestacy. One of the intended beneficiaries sued.
Ratio: Not liable. A lawyer cannot owe a duty to a beneficiary that is in conflict to his duty to the testator. The testator
required independent legal advice with respect to making gifts to testator. Had the lawyer gone forward with the
will, he would have been in breach of his duty to the client.
Clark v. Bruce Lance
Facts: Service station left to C in a will, but leased to X. Went back to solicitor later to draft an agreement to give X an
option to purchase the service station. C sues the solicitor.
Issue: Would C have an action against the solicitor on the basis of breaching of duty of care to a beneficiary
Trial: Statement of claim struck out—no cause of action
Appeal: reinstated the action
Further appeal: Struck out. No close degree of proximity between P and solicitor.
Black: It would be stupid for the beneficiary to succeed here—this is imply a case of the testator changing his mind.
 Courts will look at proximity of relationship between beneficiary and solicitor.
 Only in case where the testator intend something, instructed the solicitor to do, and the solicitor didn’t do it that the
beneficiaries could have a claim in negligence against the solicitor.
Rosenberg Estate v. Black (2001) ON SCJ
Note: Yes, that Black.
Facts: Upon the advice of their accountant, decided to implement an estate plan to reduce taxes on their death. Involved an
estate freeze, a partnership agreement in relation to piece of real estate, and a revision of the will. Lawyers were
retained in Sept 25 1997—at the initial meeting, the man (not his wife) and the son in law were present. Lawyers
were not advised at the meeting that the wife had cancer. Family learned of recurrence of cancer, and on Oct 25,
1997, son-in-law asked lawyers to expedite their work. Account left voicemail for lawyers on Nov 4, 5, 6 indicating
urgency, but still didn’t mention cancer. On Nov 10, wife admitted to hospital. Son-in-law left message saying will
were required immediately, as wife was ill. Draft wills were sent the same day, but son-inlaw didn’t receive them
before wife dies that afternoon. Rosenberg estate alleged that wills not provided in a timely manner, relying on
White v. Jones.
Held: Action dismissed, lawyers met standard of care. Lawyers were retained to implement entire estate plan, and wills
wouldn’t achieved the clients goals on their own—the rest of the plan would have to be implemented for the effect
of the wills to be what the clients wished. The parties had established no timetables, and lawyers weren’t asked to
provide draft wills alone until Nov 10. Although no further information was required from the wife, the son-in-law
still needed to complete certain tasks (legal work—he was a lawyer) before the estate freeze and partnership
agreement. He provided some of the information on Oct 20, so clock didn’t start ticking until then. Black and co
started work on Oct 20, but were never told that she was likely to die soon. Even if all the information was provided
by Oct 20, the entire estate plan would not have been implemented by Nov 10.
Black: Some lawyers will want to use you as the draftsperson for the will. Since this case, he refuses to do any estate
planning unless he deals directly with the clients.
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Black: Troubling part for Black was that his colleague, once she got a letter stating their was “some urgency”, didn’t enquire
further.
Black: this wasn’t a case of a disappointed beneficiary not getting what they were entitled to, rather a loss of the opportunity
for tax planning. This may have influenced the decision.
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Estate Litigation
References are to the Rules of Civil Procedure
Rules 74, 75, and 74.1
Rule 74—Non-contentious proceedings
Rule 75- Contentious proceedings
Rule 74.1—mandatory mediation
Rule 74.15: Orders for Assistance:
 74.15(1): Anyone who appears to have a financial interest in an estate may move for an order for a claim for relief
 75.15(2): All but one (e) can be made without notice to the estate trustee
 74.15(4): A court may require that a person be examined under oath for the purpose of making a decision.
o May want to get unprobated estate moving:
 E.g., if you are a creditor
Types of Orders for Assistance (R. 74.15):
(a) Order to accept or refuse appointment as trustee with a will
o Can bring this to force a named trustee to make up their mind about whether they will accept or
refuse the appointment within a specified number of days
(b) Order for estate trustee without a will to accept or refuse
(c) Order to consent or object to proposed appointment
o A beneficiary of the majority interest of the estate must consent to the appointment of an estate
trustee without a will—this is to force them to make up their mind
(d) Order to file a detailed statement of assets of estate
o A creditor, for example, may want to know what the assets of the estate before deciding if they
will make a claim against of the estate. The details aren’t required on the application for certificate
of appointment.
(e) Order for further particulars
o This is the only one that requires 10 days notice.
(f) Order for a wife or beneficiary of the will to come before the court (so validity of will can be ascertained)
(g) Order for former spouse to come before the court for reason above
(h) Order requiring an estate trustee to pass accounts.
(i) Any other matter that the court directs
o A catch-all
Black: these orders are quick, easy, and efficient—unique type of procedural tool for estates matters. You need to consider
Proof of a will in solemn form:
 Want to raise objection prior to probate.
o But when this is not done, the contester can get an order suspending a distribution of the estate
Rule 75.01: an estate trustee or anyone appearing to have an interest under a will may bring an application under 75.06 to
have a testamentary instrument proved (in solemn form).
So this is the general authority for proving wills in solemn form
75.02: Procedure for challenging the validity of a will.
 Two routes, depending on whether a certificate of appointment has been issued or not
 If the certificate has been issued, you can still challenge the validity, but the assets of the estate may alreadyhave been
distributed.
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R. 75.03 – Questioning validity of will prior to probate:
 File a notice of objection with the court: states the nature of the interest and the nature of the objection.
 Filed with the Estates Registrar for Ontario
o Easy to file: no need for affidavits: it is sufficient to object based on a simple statement like:
 T lacked capacity
 I am financially interested e.g., I was a beneficiary under the will
 Notice of objection has validity for 3 years and can be revoked at any time
 Black: So it is extremely easy for anyone to halt the administration of an estate
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Two routes:
o If the estate is probated:
 The objector files the document with the court and when the estate trustee files for appointment, a
search is done and notice of objection is found.
 The registrar sends a copy of the notice of objection to the estate trustee.
 Once estate trustee receives notice: they must serve on the objector a “notice to objector”.
 Objector must file a “notice of appearance” within 20 days—a kind of confirmation that they are
still objecting.
o If there is no probate:
 Impossible situation if you do not know who the estate trustee is
 Here you want to get an order for the estate trustee to file for probate.
 Rare because probate is usually necessary
Then the applicant (trustee) brings a “motion for directions” or an “application for directions”:
o This application results in an “order giving directions”:
 This is a procedural roadmap that lays out steps to be taken. Order states:
 The parties to the litigation (applicant & respondent)…
 States the issues …
 Deadlines for exchange of pleadings (but see below), production of solicitor’s notes and
records, examinations for discovery, etc.
 May have a neutral estate trustee brought on pending litigation (estate trustee during
litigation)
o Should be able to be obtained on consent because nothing is contentious
Court can direct the exchange of pleadings, because this is uncommon because the only issues are defined in the order
for directions…
If the certificate of appointment has been issued, the challenger would ask for an order that the certificate of
appointment be returned to the court, then ask for the motion for directions.
Costs:
 Formerly, costs were paid out of estates – this meant that there was no downside risk … nuisance suits were brought
 About 10 years ago courts require substance to support claim
o If legitimate issues were raised, costs are paid out of the estates
 Allegations of undue influence is an exception:
o Where one alleges undue influence, the courts look more strictly at the person alleging. Costs may be
awarded against the party who alleges this undue influence.
o If there is no basis for claiming, based on the pleadings, you’ll be hit with costs.
o Settlement is not determinative in not assessing costs – costs may be awarded even where parties settle
before trial.
 There is no rigidity with respect to r. 49 costs – offer to settle:
o Not consistently applied
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ADR
Black: Proponent of ADR—mainly because litigation is simply too cost prohibitive for most people. Black has considered a
collaborative model—whereby the lawyers undertake not to litigate, so if the parties decide to litigate, they need to
find a new lawyer.
Note: R75.1 mandatory mediation for all estates matters.
Spectrum of alternatives from least intrusive to most intrusive.
Facilitative vs. evaluative
 Liberal end: negotiation between parties
 Mediation
 Arbitration:
o Binding
o Non-binding
 Mediation/Arbitration MED-ARB
 Pre-trial settlement conference:
 Evaluative: Mini-trial
 Trial…
Arbitration:
 3rd party hears the matter
o This person controls the presentation of evidence
 Does not rely on the rules of evidence
 Two options
o Binding
o Non-binding: thought is that this person’s opinion will be carefully regarded. It may be sufficient to
determine the outcome, even if the parties end up going back to mediation.
Pre-trial settlement conference:
 Before a judge who does not hear the case
 Must shorter than a trial
 Judge may hammer one side to settle. But the judge gives their opinion
Mini-trial:
 Retired judges volunteer
 Not as formal as an actual trial, procedures are more streamlined.
Mediation:
 Comments apply to ADR in general
 Mediation also involves an independent, neutral 3rd party who acts as facilitator to help the parties resolve the dispute
 Critical element is the involvement of lawyers some seems to have their own best interests at heart rather than the
client’s
 Places the obligation in the hands of the parties
 There is a critical difference between mediator and an arbitrator:
o Mediator does not decide anything. May be nothing more than a facilitator.
There are different styles: facilitative vs. evaluative:
o Facilitative: touchy-feely stuff—how does that make you feel? May be more like social work because they
try to get people to resolve their issues
o Evaluative: take more of an active role in expressing an opinion about expressing an opinion about the
merits of the legal issues.
 Big advantages of mediation are: time, cost and efficiency
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May be more like social work because they try to get people to resolve their issues
Trial is a win-lose result
Mediators think it is a win-win situation although you can argue that is lose-lose too.
o If both parties walk away a little dissatisfied but with a resolution, you’ve probably got a good result
because both parties are getting something and losing something.
Greater party satisfaction with the result:
o Parties get to talk and have a say… this is like “getting my day in court”
o Less time and cost than going to trial
o Can have a rehabilitative effect on the individual. Transforms character of the people – walk away not
hating the other side. This is very important in issues where continued contact exists … e.g., disputes
between family members.
Resolutions must be voluntary and consensual.
o Therefore the parties craft the result
Not fighting about legal rights and obligations - mediation concentrates on interests:
o Vast majority of legal issues are fuelled by a non-legal interest that the people characterize as a legal issue
o Best practice is to identify the interests and deal with the ones where there is some agreement first
Really good mediators open up dialog:
o People speak to each other, not the mediator
o Mediator must go beneath the legal issues and identify the issues beneath the dispute - What’s really
bugging you? Are there creative solutions to the problem? Identify concentric interests.
One issue in the estates context is: at what point in the process do you engage in mediation
o Early mediation: advantages—haven’t invested a lot of $ and emotions, so people are less entrenched in
their positions. Disadvantage—may not be meaningful because you need more disclosure of information
So what is mediation in the real world? Facilitated negotiation.
MED-ARB:
 Begins with mediation and then moves to a binding decision.
 Failed mediations turn into binding arbitration.
 The mediator would become the arbitrator puts that person in an awkward position to be switching hats mid-way
through the process
Exam
 2.5 hours
 Look at past exams—generally not more than 3 question
 At least one lengthy fact pattern
 Family law question—calculation of equalization payment
 No policy questions—probably
 Make sure you spend time
 What is an A+ paper?: expression, structure, organization
 Point form ok
 Take time to read questions carefully and organize your thoughts before writing
 Objective element: identifying the issue
o make a chart of issues/topics in the course—after you go through
 Subjective element: how you deal with the issue.
o The more completely you deal with it, the better your grade.
o Completeness ≠ describing an issue or state of the law when it isn’t completely relevant
o Remember, you will not be asked to deal with the same issue more than once, so check to see if it’s dealt
with in another part of the exam
o Statutory references and case law references: specific statutory references. Manner of citation not
important—just give him the authority.
o If calculations involved—the value is less important than setting out the procedure for how you arrived at
the numbers—what are the statutory provisions for an exclusion or a deduction.
o Use short forms.
o
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