WEL Newsletter - Volume 6, Number 6 - September 2016



WEL Partners provides litigation, mediation and dispute resolution to clients throughout Ontario:
 

 
* Albert Oosterhoff, Professor Emeritus Western University, Counsel to WEL consults on matters within his areas of expertise, providing opinions concerning Wills, Estates, Trusts and related Property matters. 
 
Please Enjoy,

Kimberly A. Whaley & Lionel J. Tupman
WEL Partners

PART I: WEL NEWS
1. INTRODUCING WEL PARTNERS
 


WEL is pleased to announce that as of September 1, 2016, Lionel J. Tupman is a full partner of the Firm, now called WEL Partners.
 
Take note: 
 
Our website address has changed to www.welpartners.com
 
Our email addresses have changed as follows:
 
Lawyers:
Kimberly Whaley: kim@welpartners.com
Lionel Tupman: lionel@welpartners.com
Arieh Bloom: arieh@welpartners.com
Laura Cardiff: laura@welpartners.com
Andrea Buncic: andrea@welpartners.com
Krystyne Rusek: krystyne@welpartners.com
Helen Burgess: helen@welpartners.com
Andrea McEwan: amcewan@welpartners.com

Counsel:
Mark Handelman: mark@welpartners.com
Albert Oosterhoff: albert@welpartners.com

Clerks:
Birute Lyons:  birute@welpartners.com
Bibi Minoo:  bibi@welpartners.com

Assistants:
Rita McHorgh: rita@welpartners.com
Chris Hryhoruk: chris@welpartners.com
Daphne Pereira: daphne@welpartners.com
Jacqueline Armstrong:  jacqueline@welpartners.com

Office Manager:
Deborah Stade: deborah@welpartners.com

Client Coordinator and Supervisor:
Celine Byer: celine@welpartners.com


2. EASTER SEALS DROP ZONE - SCOTIA WEL WALL CRAWLERS IN SUPPORT OF EASTER SEAL KIDS


Fear hath no place at WEL Partners.

Over 350 feet of solid concrete wall, 32 stories, five fearless members of the WEL Partners team and  $9,000.00 raised and counting. On September 21st, the combined forces of WEL Partners and Scotia Trust took on a most fearsome challenge by rappelling down the 32-story Yonge-Eglinton Centre (RioCan Building)  in uptown Toronto, in support of Easter Seals Canada.


The WEL partners team was comprised of partners Kim Whaley and Lionel Tupman, Kim's daughter, Sammi Henderson-Whaley, summer student, Kate Stephens, and honourary member of the firm, Deb Stephens and Kerri Crawford.  Thankfully, all made it down in one piece, with not a tear shed.


Thank you to Scotia Wealth Management for organizing us and enticing us into this extraordinary experience.

Heartfelt thanks to everyone who supported us and donated to Easter Seals. In total the " Scotia WEL Wall Crawler"  sponsors contributed $16,266.  Note that as of today donations are still coming in...!  :-) 

 

Next on the agenda? Skydiving, triathlon, swimming with sharks....no one can say for sure with Kim and Lionel at the helm....

3.  SENIORS ADVISORY COMMITTEE, SEPTEMBER 21, 2016
 
Kimberly Whaley has joined the Toronto Police Service Seniors Community Consultative Committee. The Committee is a recommendation of the Toronto Senior Strategy, which was adopted by the City of Toronto Council in 2013. The Committee's mandate is to assist Toronto Police Services in identifying, prioritizing and working towards solutions to issues in policing involving older people. Andrea McEwan attended the first meeting. We look forward to being involved in this initiative. 

4. LSUC ESTATE ADMINISTRATION, PRACTICE GEMS 2016

Kimberly Whaley co-chaired the LSUC Estate Administration 2016, with Timothy Grieve on September 20, 2016.
 
Lionel Tupman presented an article co-written with Kimberly Whaley at the LSUC Estate Administration 2016 entitled: "Disputes Over what Remains: Bodies, Burial, Ashes, and New Developments."
 
 
5. STEP TORONTO CONNECTION, SEPTEMBER 2016

Laura Cardiff's article "Accounting Caution: When Looking Back on the Attorneyship" will appeared in the September 2016 issue of STEP Toronto Connection .
 
 
6. LEXIS NEXIS CANADA

Laura Cardiff, together with lawyer Jeffery Wilson of Wilson Christen, has co-authored a reference text on the law of adjournments, "The Law of Adjournments: A Manual on Postponement", to be published by LexisNexis at the end of this month.
7. OSGOODE PROFESSIONAL DEVELOPMENT, ADVISING THE ELDERLY CLIENT, THE 2016 PRACTICAL GUIDE FOR LEGAL PROFESSIONALS
 
Mark Handelman presented his article: "End of Life and Advanced Care Planning in Light of Carter" and  Kimberly Whaley and Albert Oosterhoff presented their article: " Update on Later Life Partnerships and Predatory Marriages"  at the Osgoode Professional Development seminar, Advising the Elderly Client, A Practical Guide for Working with Seniors, on September 28, 2016.


8.  RBC  WEALTH MANAGEMENT IN-HOUSE SEMINAR

WEL Partners will be presenting an in-house seminar to RBC Wealth Management staff on October 13, 2016 from 2:00pm - 3:00pm on Guardianship of Property. In this seminar, the members of WEL Partners will be addressin g issues relating to when a guardian is appropriate, the process of guardianship appointment, and the duties and obligations of guardians.

If you would like to obtain a hard copy of our publication on Guardianship, please contact Celine Byer at 416-355-3253 or celine@welpartners.com 
9. LSUC SUMMIT, NOVEMBER 3-4, 2016
 


Albert Oosterhoff will be presenting his paper, "Discrete Functions of Probate and Construction" at the LSUC Summit, on November 3-4, 2016.
 
Kimberly Whaley will be presenting her paper, "Solicitors' Negligence" at the LSUC Summit, on November 3-4, 2016

10.  KERRI CRAWFORD LEAVING WEL
 
Kerri Crawford is leaving WEL to join her husband Ryan in BC, who will be teaching at The University of Victoria. She will be missed and hopefully will be in touch often. We wish both Kerri and Ryan best of luck.

11.  ADVOCATES QUARTERLY

Lionel Tupman, Arieh Bloom and Kate Stephens article entitled: "Discrimination by Fiduciary Protection: Continuing Federal Paternalism in Aboriginal Succession and Inheritance Law" will be published in the September Advocates Quarterly. 


PART II: LAW REVIEW
(i)  POITRAS ESTATE V POITRA S 2016 ONSC 5049 (CanLII);  http://canlii.ca/t/gswm7 
An Example of Common Litigation Arising from Later-in-Life Second Marriages
 
The litigation at the centre of this case[1] is becoming increasingly more common. This dispute takes place between an 82 year old stepmother and four of her five stepchildren in relation to the estate of her husband and their father. With the growing number of later-in-life re-partnerships involving second, third, or even fourth marriages, these types of disputes are only increasing.

The step-mother alleged that in the two months before he died, some of her step-children improperly influenced her husband to change his Will to her disadvantage, and convinced him to remove her as a joint owner of savings certificates and as the beneficiary of his Retirement Income Fund (RIF). In addition, she sought support pursuant to Part V of the Succession Law Reform Act and sought an order transferring the entire estate to her to satisfy her claim for dependant's relief.

FACTS

While they were married later in life (in their late 50s) the applicant and her husband had a long marriage of over 26 years. It was the second marriage for both of them. The husband had become ill with cancer, and while the facts are disputed as to why he wanted to change his Will, his family doctor prepared a note stating that he was "competent to change his will".

While a daughter set up an appointment with a lawyer and drove the husband and wife to the lawyer's office, she waited outside while the couple met with the lawyer. The wife said that the daughter had shown up with a binder of papers and sticky notes about the husband's estate planning (suggesting the daughter knew more and was more involved than she was letting on) and that her husband was extremely ill and on heavy pain medication when the Will was signed. The daughter said that the wife had asked her to prepare a list of issues to consider before they met with the lawyer. The lawyer was satisfied that the husband was able to give instructions and he was clear in his communications, did not hesitate, and was not confused. At the time, the wife did not object to the contents of the Will.

The day after the Will was signed the couple attended at the bank and the husband gave instructions (in the presence of his wife) to change his accounts from joint ownership to his name only. The wife agreed to sign the necessary papers and did not ask why the husband was doing this. In addition he changed the beneficiary designation on his RIF from his wife to his estate. Once again, the wife did not object to these changes.

Suspicious Circumstances/Testamentary Capacity/Undue Influence

James J. found that the wife was successful in invoking the doctrine of suspicious circumstances regarding her claim of undue influence but not on the question of whether the testator had testamentary capacity. [3]

With respect to his capacity, there was an absence of evidence that the husband suffered from mental confusion, delusions or disorientation; there was no evidence that he did not appreciate or understand his assets or obligations; he grasped the content of his property; the lawyer was satisfied he understood the contents of his Will; the doctor had examined the husband, etc. [4]

However, there was "sufficient evidence to support a reasonable inference" that some of his children attempted to influence their father on how he should divide his estate between his wife and children. This included the timing and circumstances surrounding the new Will and the change in ownership and beneficiary designation when nothing had changed in the couple's relationship. Also the children had chosen the new lawyer and made the appointment and suggested that the wife pay for the funeral cost rather than the estate. James J. found that these events "warrant raising a caution flag". [5]

But that evidence fell short of establishing that the pressure was so great that the Will should be set aside. The husband was not isolated by and dependent upon, his children prior to the changes in question. He continued to live independently with his wife in his own home. For all but the last few weeks of his life, his wife was his primary caregiver. She accompanied him to the lawyer's office when he changed his will and to the bank when he changed the beneficiary on his investments but did not ask any questions. While the appointment with the lawyer was made by the step-children they did not sit in on the meeting or provide instructions to the lawyer. There was also no pattern of substantial pre-death transfers of assets to his children. [6]
 
Dependant's Support - SLRA

With respect to the support claim, the James J. examined the factors set out in section 62(1) of the SLRA and noted that: the step-mother had adequate current assets and means to meet her present resources; her asset base will not increase significantly in the future; she is 82 and currently in good health; her present needs are being met but she had no capacity to earn an income; she was the husband's only dependant and he was legally required to make adequate provisions for her future care after his death. He also had a moral obligation to her to ensure she was properly cared for.
[7] 
Justice James concluded:

While [the wife's] present needs may be said to be adequately protected, her unascertained future needs are not. Her life expectancy and future health needs are unknowable at this time. The cost of assisted living can be substantial. These substantial costs may have to be incurred for a lengthy period of time. She is entitled to a more secure financial future than that which was provided by her husband. I have also taken into account that [the wife] will be able to live cost-free in the matrimonial home at the expense of the estate for an unknown period of time.

Weighing the various factors that I have referred to, I have concluded that [the wife] ought to be paid the sum of $85,000 as a lump sum pursuant to section 58 of the SLRA.[8]

CONCLUSION

This case showcases many of the all too common legal disputes between adult children of deceased and the deceased's second (or third) spouse. Dependant's support claims, allegations of undue influence and lack of testamentary capacity are frequently litigated in these situations. Estate planning lawyers should be prepared to discuss the possible claims when assisting clients who are in later in life or complex family situations.


[1]  Poitras Estate v. Poitras , 2016 ONSC 5049 (Poitras)
[2] RSO 1990, c.S.26.
[3]  Poitras at para. 29.
[4]  Poitras at para. 37.
[5]  Poitras at para. 31.
[6]  Poitras at para. 42
[7]  Poitras at para. 50.
[8]  Poitras at paras. 56-57.

PART III: UPCOMING EVENTS
STEP Toronto
October 19, 2016
Attacking and Defending Gifts
Speaker: Kimberly Whaley and John Poyser
 
Toronto Police College, Elder Abuse Investigators Course
October 20, 2016
Elder Abuse presentation
Speaker: Lawyers, WEL Partners
 
2nd Annual WET Fundamentals Course
October 29, 2016
Contested Passing of Accounts
Speaker: Kimberly Whaley & Lionel Tupman
 
LSUC Summit
November 3-4, 2016
Solicitor's Negligence
Speakers: Kimberly Whaley and Lionel Tupman
 
STEP Toronto
November 16, 2016
Financial & Tax Planning
Speakers: Harris Jones, Glenn Davis and James Kraft
 
OBA Elder Law
November 16, 2016
Law & the Older Adult Client
Speakers: Kimberly Whaley and Professor Albert Oosterhoff
 
RBC
Estate Workshop for Millennials
Fall , 2016
How to avoid litigation with your siblings/family members
Speakers: Andrea Buncic and Arieh Bloom
 
STEP Toronto
January 18, 2017
Case Law & Potpourri of Trust Issues
Speakers: Ian Lebane, Howard Black, Timothy Youdan
 
STEP Toronto
February 15, 2017
Life Insurance
Speakers: Ted Polci, Angela Ross and Florence Marino
 
LESA, Calgary
Undue Influence
March 1, 2017
Speaker: Kimberly Whaley
 
LESA, Edmonton
Undue Influence
March 8, 2017
Speaker: Kimberly Whaley
 
STEP Toronto
April 12, 2017
Estate Planning for Global Families
Speakers: Jeff Halpern, Michael Cadesky and Margaret O'Sullivan
 
Osgoode Certificate in Elder Law
April 20, 2017
Parent/Adult Child & Sibling Struggles
Speakers: Kimberly Whaley and Albert Oosterhoff
 
LSUC Six Minute Estate Lawyer 2017
May 8, 2017
Powers of Attorney Litigation
Speaker:  Kimberly Whaley
 
STEP Toronto
May 17, 2017
Challenges of Probate Planning
Speaker: Gillian  Musk
 
CBA Wills Estate and Trust PEI
June 23, 2017
Speaker: Kimberly Whaley


PART IV: RECENT BLOG POSTS
Competing appointments: Section 29(2) of the Estates Act

LCO releases research papers: Improving the Last Stages of Life Project

When "insane delusions" may impact on the validity of a will: Sweetman v. Williamson Estate

I Love My Cat More Than You: Animals as property or sentient beings

BOOK REVIEW: Bennett on the Commercial List, Second Edition

Judicial Discretion in the Award of Costs

Executor's Right of Retainer, by Albert Oosterhoff

Abatement and General Powers of Appointment, by Albert Oosterhoff



PART V: CONNECT WITH WEL
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