Various legal issues can arise when an individual lacks the legal capacity to make certain decisions about their health, finances, and property. However, these issues may be mitigated by preparing a comprehensive estate plan that includes a Power of Attorney.

Appointing a Power of Attorney means designating another person to make decisions about your finances, property, and/or personal care if you are unable to do so on your own due to incapacity. The primary law governing capacity matters in Ontario is the Substitute Decisions Act and the Health Care Consent Act. The Substitute Decisions Act addresses property issues and governs substitute decision-making through powers of attorney, while the Health Care Consent Act specifically addresses decisions in the personal care, or health, context.

This blog post will cover five key things that you should know about powers of attorney in Ontario.

1. There are two types of powers of attorney in Ontario: a Power of Attorney for personal care and a Power of Attorney for property.

Appointing a Power of Attorney for personal care and/or property requires an individual to designate another individual who will be responsible for making decisions on their behalf if they become incapacitated. The individual preparing the Power of Attorney may also be referred to as the “grantor.”

Power of Attorney Requirements

An individual can choose to appoint the same person for both types of Power of Attorney, or they may choose to designate two different individuals. However, appointing someone as a Power of Attorney is not a decision that should be made lightly. When deciding who to appoint as a Power of Attorney, individuals should be mindful of certain requirements, which includes ensuring that the designated Power of Attorney is mentally capable of making such important decisions. Further, the designated power for property must be at least 18 years old, while a Power of Attorney for personal care must be at least 16 years old. It is also important to consider whether the chosen individual is willing and able to make such decisions and act in the grantor’s best interests.

Power of Attorney for Personal Care

The Health Care Consent Act sets out a hierarchy of decision-making individuals who may make health care-related decisions on behalf of someone else. The only decision maker ranked higher than a Power of Attorney is a legal guardian. This hierarchy is as follows:

1. 1. Guardian of the person
   2. Attorney named in the power of attorney for personal care
   3. Representative appointed by the Consent and Capacity Board
   4. Spouse or partner
   5. Child or parent or person with a right of decision-making
   6. Parent with a right to parenting time
   7. Brother or sister
   8. Any other relative
   9. Office of the Public Guardian and Trustee

If there is no valid Power of Attorney for personal care or legal guardian, the highest-ranked decision-maker will make the necessary decision(s). If, for instance, an individual does not have a guardian, a Power of Attorney for personal care, a representative appointed by the Consent and Capacity Board, or a spouse, but has multiple living children, those children would need to select one person to be the decision-maker, or they may make decisions together. If they cannot agree on a decision, the Office of the Public Guardian and Trustee may be asked to step in.

Power of Attorney for Property

There is no similar hierarchy for property decisions. If there is no designated individual named as a Power of Attorney for property and an individual is incapacitated, the court will need to appoint a guardian. However, this can lead to disputes, legal expenses, and delays.

2. The individual preparing the Power of Attorney must be competent at the time the document is executed.

The Substitute Decisions Act sets out the competency thresholds required by a person who is seeking to prepare and execute a valid Power of Attorney for personal care or for property. It is important to note that these thresholds are different depending on the type of Power of Attorney being prepared.

Power of Attorney for Personal Care

A person appointing the Power of Attorney for personal care must understand whether the property attorney has a genuine concern for the person’s welfare, and must appreciate that the person may need to have the proposed attorney make decisions for them.

Power of Attorney for Property

Section 8(1) of the Substitute Decisions Act provides that a person seeking to appoint a Power of Attorney for property is capable of giving a continuing Power of Attorney if the person:

(a) knows what kind of property he or she has and its approximate value;

(b) is aware of obligations owed to his or her dependants;

(c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;

(d) knows that the attorney must account for his or her dealings with the person’s property;

(e) knows that he or she may, if capable, revoke the continuing power of attorney;

(f) appreciates that unless the attorney manages the property prudently its value may decline; and

(g) appreciates the possibility that the attorney could misuse the authority given to him or her.

The Power of Attorney must also be prepared without the undue influence of the proposed attorney or anyone else.

3. Powers of attorney must satisfy certain criteria in order to be effective.

To be effective, a Power of Attorney must be made in writing and signed in the presence of two witnesses. The witnesses must each be over the age of 18 and must not be the attorney or the attorney’s spouse or partner, the grantor’s spouse or partner, a child of the grantor, or a person whose property is under guardianship.

4. An appointed attorney must act in the best interests of the grantor.

In the property context, a Power of Attorney must act only in the best interests of the grantor of the Power of Attorney (the incapacitated person). The named attorney cannot consider the interests of the beneficiaries of the incapacitated person or their own interests and needs.

In the personal care context, the attorney must make decisions that are aligned with the previously expressed preferences of the grantor. If these wishes are not known, then the attorney must make decisions in the grantor’s best interests.

5. If you change your mind about your Power of Attorney, you must state in writing that you are “revoking” it.

If you change your mind about who you have appointed as your Power of Attorney, or your designated attorney is unwilling or unable to act in such capacity, you must state in writing that you are “revoking” the Power of Attorney. There is no special form required for this statement, which is referred to as a “revocation”; however, it must be signed by you and witnessed in the same manner that the Power of Attorney was.

Bader Law in Oakville Provides Trustworthy Advice and Comprehensive Estate Planning Solutions

The knowledgeable wills and estate planning lawyers at Bader Law understand the complexities and contemplations that accompany estate planning. Whether you are preparing your first estate plan, or are seeking to revise an existing power of attorney, our team can help. We can help you understand your legal options and ensure you and your loved ones are taken care of in accordance with your wishes. To speak with a member of our team regarding your estate planning needs, contact us online or call us at (289) 652-9092.

Statistics Canada recently reported that Canada leads the G7 for couples living as common-law spouses. Naturally, this has major implications for estate law. Unlike legally married couples, common-law partners may lack the same automatic rights when it comes to inheritance and property division. In this new reality, understanding the nuances of estate planning becomes paramount. This blog will unravel the intricacies of estate planning legislation to unravel a common-law spouse’s legal entitlements.

The Common Law Regime in Ontario

Several pieces of legislation govern the rights of common-law spouses in estate law, the details of which are set out below.

Family Law Act

The Family Law Act in Ontario includes various relevant provisions, but most importantly, the Family Law Act defines “spouse” as a couple that “(a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.” It is clear that the Family Law Act intends that any rights provided to spouses under the legislation are only intended for married individuals.

For example, in the event of a partner’s death, the surviving spouse can elect to (1) take the surviving spouse’s entitlement under the will or (2) receive an equalization payment as contemplated in the Family Law Act. An equalization payment is a financial adjustment made during the division of property upon the dissolution of a marriage or the spouse’s death. These payments are designed to ensure that each spouse leaves the marriage with an equal share of the increase in their net worth that occurred during the marriage. The common-law spouse does not have such equalization rights.

This may result in unequal property distribution, child support inequality, and financial uncertainty. Most importantly, this places greater importance on the provisions of the will of the common-law couple.

Succession Law Reform Act

The Succession Law Reform Act adopts the definition from the above legislation (except section 57); a “spouse” is interpreted only to include married couples. As such, the entitlements of common-law spouses are further reduced.

Under this legislation, when an individual dies intestate (meaning they have passed away without having made a valid will or without leaving clear instructions regarding how their assets and estate should be distributed after their death), the surviving spouse is entitled to the “preferential” and “distributive” share:

1. Preferential Share: Under the legislation, the surviving spouse is entitled to inherit $350,000, whether there was a will or not.
2. Distributive Share: After the preferential share is allocated, the remaining estate is distributed among the surviving spouse and other eligible family members based on specific rules outlined in the SLRA.

Since a common-law spouse is not included in the definition, it would mean they may not have a claim to their partner’s estate if they died without a will. Having drafted a valid will that ensures a common-law spouse’s share is protected is extremely important.

However, in section 57, the Succession Law Reform Act does contemplate that spouses include “either of two persons who are not married to each other and have cohabited.” This section provides that a common-law spouse may make a claim for support of a defendant, even where they were not married to the deceased partner. Therefore, even if a common-law spouse may not be entitled to the deceased’s estate, they may still be entitled to support for dependents, regardless of never having been married.

Estates Act

Unlike the legislation above, the Estates Act grants common-law spouses some rights. Specifically, section 29 allows for a “person with whom the deceased was living in a conjugal relationship outside marriage immediately before the death” to have presumptive priority to become the estate trustee where there is an intestacy. If granted by the court, this would allow the common-law spouse to control estate administration, ensure fair distribution, and ultimately honour their loved one’s wishes.

Common Law Spouse Protection in Common Law

Whether or not Ontario’s laws grant a common-law spouse entitlement to their partner’s estate, the common law has developed some protections in this regard. The doctrines of unjust enrichment, constructive trust, and quantum meruit may provide the relief sought.

The Importance of a Will as a Common-Law Spouse

As demonstrated above, Ontario’s legislation can be unfavourable to common-law spouses in the estate context. Many of the same rights enjoyed by a married spouse are not available, particularly when it comes to intestacy. In order to protect their interests, it is with utmost importance that common-law spouses ensure that a will is validly drafted that guarantees a fair distribution of assets to their surviving partner.

Contact the Lawyers at Bader Law for Advice on Estate Planning

The importance of a well-thought-out estate plan cannot be overstated. Without a valid will in place, a person has no control over the distribution of their assets after their death. At Bader Law, our wills & estates lawyers has considerable experience providing insight and legal guidance on the estate planning process and working with estate trustees and beneficiaries throughout the entire probate process. We work with clients throughout Mississauga and the Greater Toronto Area on simple and highly complex estate planning and probate matters. We also advise on a range of business matters, including start-up and reorganization, corporate transactions, shareholders agreements and more. Contact us online or at (289) 652-9092 to learn how we can help you.

Even in a world where digital documents and electronic communication are standard practice, pen and paper is still relevant in the realm of estate law. Many individuals living in Ontario choose to update or change their wills with handwritten notes, such as in the Estate of Harold Franklin Campbell (Re). This case considered whether handwritten notes were valid revivals of a will under the laws of Ontario. It also demonstrated the limits of the Court’s ability to impute a testator’s intentions.

Reviving Wills in Ontario

In Ontario, the laws relevant to reviving wills are governed by the Succession Law Reform Act and related legal principles. Specifically, section 19 provides the procedure for reviving a will, which occurs after the proper drafting and execution of a codicil. A codicil is a legal document used to make amendments or changes to an existing will. A codicil allows a person to modify specific provisions of their will without creating an entirely new will. It supplements the original will and is subject to the same legal requirements and formalities as a will.

If a codicil has been validly drafted, section 21 of the Succession Law Reform Act deems the will to have been made when it was revived. It also enables to Court to order that a document or writing (including a codicil) that revives a will is valid, even where it was not properly executed under the Succession Law Reform Act, as long as the document or writing sets out the “testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased.”

The operation of these two sections was the issue before the Court.

Testator Drafts Two Handwritten Notes

The matter of the Estate of Harold Franklin Campbell (Re) involved four parties who were identified by their first names by the Court: Harold, the testator; Christopher and Lisa, the children of Harold’s first marriage; and Carol, Harold’s second wife. Harold had a will that he executed after the death of his first wife in 1996. The will named Christopher as the estate trustee and Lisa the alternate estate trustee. Both were equal beneficiaries of the estate.

After Harold married Carol in 2000, the will was revoked through the operation of section 16 of the Succession Law Reform Act (which has since been repealed). At the time, this section operated to revoke the original will due to the second marriage. However, Harold made two handwritten notes in 2016 and 2017, which he signed and stapled to the will. The 2016 note included specific items that Harold requested be given to Carol. The 2017 note dealt with how Harold wanted his remains disposed of. Justice Chang noted that these handwritten notes were valid codicils under the Succession Law Reform Act.

The issue of the case was whether the will was revived through these codicils, as was Christopher’s position. Christopher brought the application for a small estate certificate and directions for the validity of Harold’s will. Lisa and Carol took no position in the case.

Two Handwritten Notes Revive Will

Justice Chang found that the 2016 note revived the will. He noted the language of section 19, which he referred to as “clear” that a codicil revived a will based on the testator’s intention. The drafting of the 2016 note demonstrated that Harold thought the will was valid and sought to vary it by specifying the items to be given to Carol. Justice Chang found that by “making of that codicil, he gave effect to the Will.” The legislation operates automatically to give effect to Harold’s intentions, reviving the will without any further process.

As part of his application, Christopher argued that the Court should order that the notes were valid revivals of the will. This was considered unnecessary by Justice Chang as he noted that the codicils were enough, under section 19, to show Harold’s intention to give effect to the will. The intention did not need to be “read in.” In this respect, he relied on the well-settled law that legislation must be read “in their entire context and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.” In light of section 21, Justice Chang found that the language of the legislation does not permit the court to “read into testamentary documents or writings intentions that are not already set out in them or that are not clearly inferable from admissible extrinsic evidence.” The intentions of the testator are only to be interpreted based on the contents of the codicil or will.

Nevertheless, the Court found that the will was revived and is valid. This case reaffirms the importance of statutory interpretation of the Succession Law Reform Act, particularly the powers of the Court in determining the testator’s intentions. It confirms that these intentions cannot be read into the will and cannot be “created out of a whole cloth.”

Contact Bader Law in Mississauga for Estate Planning Services

The trusted estate lawyers at Bader Law can help with a wide range of wills and estate matters, including reviewing and updating a will, preparing an estate plan from scratch, and assisting with probate and estate administration. Our team of estate planning and administration lawyers will ensure your will meets the needs of you and your loved ones. We also advise on a range of business matters, including start-up and reorganization, corporate transactions, shareholders agreements and more. Contact us by phone at (289) 652-9092 or reach us online to discuss your legal needs.

Among the myriad responsibilities executors take on when administering an estate, tax obligations are some of the most critical. The Income Tax Act requires executors to file the deceased’s tax returns, ensure all taxes owing are paid and inform beneficiaries of the taxable nature of their inheritances.

Executors who fail to comply with all tax requirements for a deceased person and their estate risk being held personally liable for significant penalties. Therefore, executors need to educate themselves and fully understand all tax-related steps in administering an estate.

Gaining Authorization to Access Deceased’s Records

When trying to access the deceased’s information from institutions such as a bank or Canada Revenue Agency, an executor will need to prove their authority as the deceased’s chosen representative.

In most cases, the executor will require to present the following documents before an institution will release the deceased’s information:

• A copy of the death certificate;
• The deceased’s social insurance number; and
• A complete copy of the deceased’s Will or other legal document confirming the executor is the estate’s legal representative (e.g. a grant of probate, trust agreement, or letters of administration).

Filing Tax Returns

An executor must file a tax return for the deceased for the year of their death (called a “final return”), as well as a tax return for the estate. The due date of these returns differs depending on the circumstances and date of death.

Personal Tax Returns

To date, Canada Revenue Agency has mandated the following due dates for a deceased’s final return, if the deceased and their surviving spouse or common-law partner did not carry on a business in the tax year:

Deceased and Surviving Spouse/Common-Law Partner Did Not Have Business

Date of Death	Due Date for Final Return
January 1 to October 31	April 30 of following year
November 1 to December 31	6 months after date of death

If a deceased or their spouse or common-law partner carried on business during the year of death, a different set of due dates for the final return apply:

Deceased or Spouse/Common-Law Partner Had a Business

Date of Death	Due Date for Final Return
January 1 to December 15	June 15 of following year
December 16 to December 30	6 months after date of death

Canada Revenue Agency states that these due dates do not apply where the expenditures made in the course of operating the business were mainly the cost or capital cost of tax shelter investments.

In addition to the final return, an executor is also responsible for filing any tax returns for previous years that the deceased did not file.

Estate Tax Returns

Tax filings for estates and trusts are due 90 days after December 31 of the year of death (i.e. the end of the following March). This 90-day timeline applies to all estates (except Graduated Rate Estates) and all trusts, including inter vivos and testamentary trusts.

Reporting Income Earned by the Estate After Death

Any income earned by the deceased’s estate after their death must be reported to Canada Revenue Agency. This is done through a T3 Trust Income Tax and Information Return. A T3 must also be filed for any trust established via Will or court order relating to dependant relief or support law.

A T3 may not be required if the estate assets are distributed immediately after the deceased’s death or if the estate did not earn any income between the date of death and the date of distribution. T3s should not be confused with the deceased’s final return, which must always be filed.

Clearance Certificates

A Clearance Certificate is issued once all amounts owing to Canada Revenue Agency have been paid (or Canada Revenue Agency has accepted security for payment). An executor must ensure that they receive a Clearance Certificate before distributing the estate to the beneficiaries. Otherwise, the executor may be held personally liable for any losses or penalties the estate occurs.

Basic Steps for Completing a Deceased’s Tax Return

While every deceased and estate are unique, some basic steps can be expected to be taken in most cases. Canada Revenue Agency sets these out in a comprehensive checklist, including the following steps:

1. Determine the deceased’s income from all sources, which may be found by:
   • Reviewing their previous tax returns for employer names and investment companies used;
   • Checking safety deposit boxes;
   • Contacting employers, banks, trust companies, investment brokerages, pension plan managers, and any other institution or person known to have paid money to, or held money for, the deceased;
   • Reviewing all T4 slips for remuneration paid and T5 slips for investment income (note that estate amounts may appear on T4A and T4RSP slips);
   • Contacting Service Canada to determine whether the deceased received Canada Pension Plan Benefits and/or their Old Age Security Pension (which will also be documented in T4A slips).
2. Identify any applicable deductions or credits available in the province or territory where the deceased lived at the time of their death.
3. File the final return and T3 return for the estate; and
4. Apply for a clearance certificate after the Notice of Assessment for all required returns has been received.

Executors: Remember Your Own Tax Obligations!

Executors need to remember that the tax obligations related to estate administration are not limited to the deceased and the estate itself. Individual, non-professional executors must declare any executor, trustee, or liquidator fees as income from employment on their own tax returns via a T4 form. Professional executors, trustees, or liquidators will ordinarily report these fees as business income.

Contact Bader Law in Mississauga for Trusted Advice on Estate Representation

While the above tax considerations are common to many matters, the administration and distribution of an estate can be complicated and involves numerous financial and legal considerations. Bader Law provides comprehensive estate planning and probate services and can help executors navigate their obligations. Our Wills and estates lawyers are experienced in probating Wills, managing real property transactions, facilitating the distribution of assets, and preparing estate tax returns.

Bader Law is located in Mississauga and proudly serves clients throughout the Greater Toronto Area. To discuss your estate matter with a member of our team, contact us online or call 289-652-9092.

In a recent Ontario court case, the deceased’s mother and sister repeatedly brought his common-law spouse to court to obtain DNA testing of his alleged daughter in a dispute over the proceeds of his estate.

Family Goes to Court of Deceased’s Estate

The original issue brought before the court was between the sister and mother of the deceased and his purported common-law spouse.

At issue was the entitlement to and claims against the assets of the deceased. In particular, there was a dispute over the $62,841 paid into court for the purposes of the proceedings.

DNA Test Ordered to Determine Child’s Biological Father

The common-law spouse claimed that her minor daughter was the deceased’s biological child, which the mother and sister disputed.

In order to settle the issue of the deceased’s daughter, on May 13, 2021, the mother and sister brought an application before the court seeking an order that the minor daughter undergoe DNA testing to confirm whether she was the biological daughter of the deceased. 

On June 4, 2021, the court granted the sister and mother leave to obtain DNA testing of the minor daughter to determine whether she was the biological daughter of the deceased. In the initial order, the court required that the DNA test be booked without delay and to take place within 14 days of the completion of the intake process. 

Dispute Over Conduct of DNA Testing Arises

Following the initial court order, the parties had agreed where the DNA testing should take place, but they could not agree on how to affect the testing. 

For instance, there was a dispute as to the source of the deceased’s DNA sample to be used for the analysis, as between taking the sample from the deceased’s necklace or from a frozen tissue sample held by the coroner. 

Additionally, while there was evidence that the common-law spouse and minor daughter had provided a DNA sample to another health facility, the spouse had not booked a date for DNA testing of the daughter with the agreed-upon DNA lab. In fact, the evidence suggested that she had refused to submit DNA samples to the DNA lab because she disagreed with the source of the comparison DNA from the deceased.

As a result, the deceased’s sister and mother brought a motion to the court seeking an order regarding the conduct of the DNA testing. They asked that the court issue an order for the common-law spouse and the minor daughter to go to the agreed-upon DNA lab. They submitted that those samples would then be tested against the DNA taken from the deceased’s necklace. 

Court Issues New Order for DNA Testing

Prior to the hearing of the motion, the parties said they had agreed to certain terms. Thus, the court issued an order containing the agreed-upon terms. 

The resulting order stated contained a timetable for the DNA samples given by the common-law partner and the minor daughter to be sent to chosen DNA lab to be compared with the DNA taken from the deceased’s necklace for the purpose of determining if the daughter was in fact the biological child of the deceased. 

The order further stated that if the testing did not show that the daughter was the biological child of the deceased, then the deceased’s mother would authorize the coroner to release the tissue of the deceased to the DNA lab for further testing. 

Finally, the order stated that the common law spouse was to pay the “up-front” cost of $625 for this second test. 

Court Finds That Common Law Partner Did Not Comply With Initial Order

The sister and mother claimed that because the common-law spouse had not complied with the initial order they were entitled to their costs of approximately $13,000.

In response, the common law spouse claimed that she had been compliant with the initial order, but had not provided the DNA results because they were still ironing out the details prior to the motion.

The court rejected the spouse’s assertion, stating:

“Based on my review of the materials provided in the parties’ cost submissions, I conclude that, while [the spouse] and [the daughter] had provided DNA samples, they had not complied with the [initial court] Order which states at para. 15 c. that “after agreement on the DNA testing facility is reached, the [spouse] shall book a date for DNA testing of the child [daughter] without delay. Subject to the availability of the testing facility, the testing shall take place within 14 days of completion of the intake process.”

While the court acknowledged the spouse’s concerns about taking the deceased’s DNA from his necklace, it found that her refusal to provide the DNA lab with the daughter’s DNA samples had been unreasonable. 

In the result, the court, therefore, ruled against the spouse and ordered her to pay the sister and mother $7,213 for the costs of the motion.

Contact Bader Law for Experienced Advice on Estate Matters

The importance of a well-thought-out estate plan cannot be overstated. Without a valid Will in place, a person has no control over the distribution of their assets after their death. Under Ontario’s Succession Law Reform Act, when a person dies intestate, or without a Will, their assets are divided in strict adherence with provincial succession law, taking away any control the person could have had when they were living. While nobody looks forward to contemplating their own death, the relief provided by knowing your loved ones will be taken care of in accordance with your own wishes is immeasurable.

For those who are appointed as Estate Trustees under a Will, probating an estate can be a stressful and time-consuming process. Many Estate Trustees are still grieving the loved one they lost when they are required to begin the complex probate process, and they often don’t know where to begin. A skilled lawyer will provide guidance from start to finish, ensuring that each Trustee fulfills each of their obligations in accordance with the law.

At Bader Law, we have considerable experience providing insight and legal guidance on the estate planning process, and working with Estate Trustees and beneficiaries throughout the entire probate process. We work with clients throughout Mississauga and the Greater Toronto Area on simple and highly complex estate planning and probate matters.

The Mississauga will and estate lawyers at Bader Law represent individuals, families and business owners with comprehensive estate planning needs in Mississauga and throughout Greater Toronto Area. We advise clients on best practices in both simple and complex estate matters to ensure they have a plan in place to protect their interests and minimize their estate tax obligations. We also represent estate trustees and beneficiaries in various probate matters. Contact us online or at (289) 652-9092 to learn how we can help.

In a recent Ontario Court of Appeal decision, the court ruled that a son did not have standing to challenge his father’s will because he had not been included in the said will or the father’s previous will.

Father Does Not Include Son in His Will

In 1996, a father of two created a will. Under the will, he left his entire estate to his wife (and mother to their two children) if she was alive 30 days after his death.

Then, three months before his death in 2019, he executed a new will, in which he also left his entire estate to the mother if she was alive 30 days after his death. Additionally, the 2019 will provided that, if the mother predeceased him, his primary estate would go to their daughter and the daughter’s children.

Neither will executed by the father left any part of his estate to his son.

Son Contests Father’s 2019 Will

Following the father’s death, his son brought a court motion seeking a declaration that the father’s 2019 will was invalid.

In response, the mother and the daughter moved to dismiss the son’s application on the ground that he had no standing to bring his motion. In support of this, they claimed that the son had no interest in the outcome of his challenge to the 2019 will because, even if it were found to be invalid, the 1996 will would apply and, under that will, the father also left his entire estate to the mother. As such, they argued that the son had no financial interest in the father’s estate and lacked status to bring his application.

The Law on Financial Interest in an Estate

The mother and the daughter relied on Rule 75.06(1) of the Rules of Civil Procedure in support of their argument, which reads:

“75.06(1)           Any person who appears to have a financial interest in an estate may apply for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court.”

As such, the mother and the daughter submitted that the son was not a person who appeared to have a financial interest in the father’s estate and, therefore, he lacked standing to bring an application to challenge the 2019 will.

In support of his motion, however, the son submitted that he had standing pursuant to s. 23 of the Estates Act, which reads:

“23    Where a proceeding is commenced for proving a will in solemn form or for revoking the probate of a will on the ground of the invalidity thereof or where in any other contentious cause or matter the validity of a will is disputed, all persons having or pretending to have an interest in the property affected by the will may, subject to this Act and to the rules of court, be summoned to see the proceeding and may be permitted to become parties, subject to such rules and to the discretion of the court.”

In essence, it was the son’s contention that he had ample evidence capable of raising an inference of undue influence and suspicious circumstances in relation to the 2019 will. He claimed that the 2019 will was invalid as a result of undue influence by the wife and by his sister.

Thus, in the event that the existing will was set aside for those reasons, he would be entitled to a share of the father’s estate on intestacy as one of his surviving children. He therefore submitted that had a financial interest and standing to challenge the will.

Additionally, the son had commenced a civil action against the father’s estate in relation to the family business. The son therefore claimed that his civil action against the estate gave him standing under the will because he was making a claim to “property affected by the will”.

Lower Court Rules Son Does Not Have Standing

At trial, the application judge first held that the son had failed to provide sufficient evidence that the 1996 will was invalid or inauthentic for any reason. He thus reasoned that even if the 2019 will was found to be invalid, the 1996 will would apply and the father’s entire estate would go to the mother. As such, the court held that the son did not have sufficient standing to bring his application under
rule 75.06(1) of the Rules of Civil Procedure.

Additionally, in response to the son’s argument, the court held that s. 23 of the Estates Act did not provide a statutory basis separate from rule 75.06(1) for standing. Further, the court found that the son’s separate civil action did not give him standing.

As such, the court held that the Estates Act did not confer standing to the son to challenge the 2019 will where he would otherwise lack standing to do so.

The son appealed to the Ontario Court of Appeal.

Court of Appeal Rules Son Does Not have Standing

On appeal, the son’s main argument was that the application judge had erred in his interpretation of s. 23 of the Estates Act, arguing that his civil action against the estate gave him standing because he was making a claim to “property affected by the will”.

The Court of Appeal rejected the son’s argument, finding that s. 23 of the Estates Act provides discretionary jurisdiction to the application judge and the son had not identified any error in the judge’s exercise of his discretion.

In the result, the court dismissed the son’s appeal, finding that he did not have standing to challenge the father’s will. However, the court noted that the son could still pursue his claims in his civil action against the estate.

Contact Bader Law in Mississauga for Experienced Advice on Estate Matters

At Bader Law, we have considerable experience providing insight and legal guidance on the estate planning process, and working with Estate Trustees and beneficiaries throughout the entire probate process. We work with clients throughout Mississauga and the Greater Toronto Area on simple and highly complex estate planning and probate matters.

The Mississauga will and estate lawyers at Bader Law represent individuals, families and business owners with comprehensive estate planning needs in Mississauga and throughout Greater Toronto Area. We advise clients on best practices in both simple and complex estate matters to ensure they have a plan in place to protect their interests and minimize their estate tax obligations. We also represent estate trustees and beneficiaries in various probate matters. Contact us online or at (289) 652-9092 to learn how we can help.

In a recent British Columbia decision that made headlines, a court upheld a testator’s wish to leave over $1.4 million to the British Columbia’s Society for the Prevention of Cruelty to Animals (“SPCA”), a non-profit animal welfare organization.

Testator Leaves Residue of Estate to SPCA in 2013 Will

The testator died in 2017 at the age of 99. 

The testator had prepared a will in 2013, in which she made specific bequests, varying between $40,000 and $60,000 to several family members. The will specified that the residue of the estate would then go to the SPCA. 

At the time of her death, the testator’s estate was estimated to be worth approximately $1.85 million.

This meant that, under the 2013 will, the SPCA was set to receive approximately $1.4 million from the estate.

Family Contests 2013 Will

Following her death, the testator’s family contested the 2013 will.

They claimed that they had found a handwritten note alongside her 2013 will in the testator’s home lockbox. The note appeared to increase the specific amounts payable to certain of the family members named and deleted gifts to others. More importantly, it changed the gift to the SPCA from the remainder of the residue to $100,000. This meant that if the note prevailed over the 2013 will, the SPCA would only get $100,000, with the residue of the estate going to the named family members.

The family members applied to court, claiming that the note had been finalized at a meeting with the testator’s close friend in the presence of another friend at a meeting in 2017 and should prevail.  

Court Examines Validity of 2017 Note

First, the court examined the circumstances surrounding the execution of the 2013 will, which it found to be valid.

Turning to the handwritten note, the court first observed that it was not dated and there was no evidence on which to determine when it had been prepared. Additionally, the court found that it was untitled, unsigned, and not witnessed. The court further stated:

“The Note appears to have markings on it made by different people as they are in different ink. At least half of the names on it were in [the testator]’s handwriting. It appears likely that [the testator] wrote all of the names,… [but it] is not clear who crossed out some of the names on the Note… It was also not clear who increased the amount of the gifts from the amounts in the 2013 Will.”

Thus, the court held that the note did not meet the legal requirements for a valid testamentary instrument.

Court Upholds 2013 Will

The court further refused to use its discretion to uphold the note as a valid testamentary instrument. To do so, the court would have had to find that the note represented the testator’s fixed and final intention to change the 2013 will, which the court declined to do. 

In addition to finding that the note would dispose of her estate in ways she could not have intended, the court further stated:

“The circumstances surrounding the Note do not suggest a fixed and final intention on [the testator]’s part. In 2010, [the testator] met with a lawyer to prepare the 2010 Will. In 2013, she met with a notary to prepare the 2013 Will… She clearly knew she had to “go in” to make changes to her will.

[The testator]’s pattern of behaviour was to see a legal professional in order to change a will. [The testator] understood the formal process of attending at a professional’s office and going through the process of instructing the professional and formally executing a valid will.” 

In the result, the court therefore refused to use its discretion to declare the note as a valid codicil to the 2013 will.

As such, the 2013 will was upheld as valid and the residue of the testator’s estate would go the SPCA.

Get Help

At Bader Law, we have considerable experience providing insight and legal guidance on the estate planning process, and working with Estate Trustees and beneficiaries throughout the entire probate process. We work with clients throughout Mississauga and the Greater Toronto Area on simple and highly complex estate planning and probate matters.

The Mississauga will and estate lawyers at Bader Law represent individuals, families and business owners with comprehensive estate planning needs in Mississauga and throughout the Greater Toronto Area. We advise clients on best practices in both simple and complex estate matters to ensure they have a plan in place to protect their interests and minimize their estate tax obligations. We also represent estate trustees and beneficiaries in various probate matters. Contact us online or at (289) 652-9092 to learn how we can help.