WEL Newsletter - Volume 7, Number 8 - November 2017



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.  LSUC 20TH ANNUAL ESTATES AND TRUST SUMMIT, OCTOBER 16, 2017

 
Kimberly Whaley, Ken Shulman, Ian Hull, and Dr. Adrian Owen spoke on  "Primer on Standardized Cognitive  Functioning Testing" at the LSUC 20th Annual Estates and Trust Summit on October 16, 2017.
 

2. LSUC 20TH ANNUAL ESTATES AND TRUST SUMMIT, OCTOBER 16, 2017

 
Professor Albert Oosterhoff presented on "The Law of Assent" at the LSUC 20th Annual Estates and Trust Summit on October 16, 2017.

3. LSUC 20TH ANNUAL ESTATES AND TRUST SUMMIT, OCTOBER 16, 2017

 
Lionel Tupman presented his article on: "Constitutional Issues Related to Succession and Inheritance Law under the Indian Act" at the LSUC 20th Annual Estates and Trust Summit on October 16, 2017.
 

4. NATIONAL ETHNIC PRESS, TORONTO CITY HALL, OCTOBER 16, 2017

 
Kimberly Whaley and Lionel Tupman were invited by The National Ethnic Press and Media Council of Canada, Toronto City Hall Press Gallery to present on "Predatory Marriages" at the Toronto City Hall, on October 16, 2017. 

5. STEP TORONTO, OCTOBER 18, 2017

 
Kimberly Whaley presented at the STEP Toronto Seminar on:  "Civil, Criminal & Equitable Remedies - Elder Abuse and Manners of Protecting the Elderly " at the STEP Toronto on October 18, 2017.
 

6. STEP TORONTO, OCTOBER 18, 2017

 
Albert Oosterhoff and Kate Stephens presented "Equitable Remedies for Elder Abuse: A Case Law Review" at STEP Toronto, on October 18, 2017.
 

7. ADVOCIS, THE FINANCIAL ADVISORS ASSOCIATION OF CANADA, OCTOBER 19, 2017

 
Kimberly presented her PPT article on "Advising the Advisors: Incapacity, Powers of Attorney and Abuse", at The Financial Advisors Association of Canada (ADVOCIS) on October 19, 2017.
 

8. LAW TIMES, OCTOBER 23, 2017

 
Kimberly was interviewed by Dale Smith of Law Times, in the article: "Lawyers can help stop abuse of power of attorney", October 23, 2017, Volume 28, No. 33.

9. CANADIAN LAWYER, OCTOBER 2017

 
Lionel Tupman's "Abuse of the Older Adult: A Societal Issue - Your Issue, my issue" was published in the Canadian Lawyer Magazine, October 2017.

10. TORONTO PUBLIC LIBRARY, RUNNYMEDE BRANCH, OCTOBER 23, and OCTOBER 25, 2017

 
Kimberly Whaley, Andrea McEwan, Amanda Bettencourt and Alex Swabuk presented on "Predatory Marriages" and "POA Abuse" at the Toronto Public Library, Runnymede Branch on October 23 and 25, 2017.

11. OBA TRUSTS AND ESTATES LAW PROGRAM, OCTOBER 24, 2017

 
Amanda Bettencourt presented a case comment at the "Contested Guardianships and Battling Attorneys" seminar organized by the OBA Trusts and Estates Law Program on October 24, 2017. Amanda presented on the B.C. Supreme Court decision in Devore-Thomson v. Poulain, a case involving the marriage between an older woman suffering from Alzheimer's disease and a younger man. The Court set aside the marriage on the grounds that the older woman did not possess the requisite capacity to marry as at the date of the marriage and also set aside two Wills she executed based on her lack of testamentary capacity.  

12. WEL WELCOMES, LUCY GOYTISOLO, LAW CLERK
 
WEL welcomes Lucy Goytisolo, Law Clerk, who will be joining us on November 13, 2017.
 
Her contact details can be accessed on our website.

13. CANADIAN ELDER LAW CONFERENCE, VANCOUVER,  NOVEMBER  2-3,2017

 
Kimberly presented her article on a panel with Stan Rule of Sabey Rule, and Sara  Behesti of O'Sullivan Estate Lawyers LLP: "ILA Retainer: Interplay of Capacity & Undue Influence", at the CCEL, Vancouver, November 2, 2017.
 

14. STEP TORONTO CONNECTION, NOVEMBER 2017

 
Kimberly's article: "Retirement Home Vicariously Liable for Employee's Theft of Older Adult? Hoyle (Estate) v. Gibson-Heath" was published in the STEP Toronto Branch Connection Newsletter, November 2017, Viol. 5,  No. 3.
 

15. CBA ALBERTA, NOVEMBER 14, 2017

 
Kimberly presented her article: "ILA Retainer: Interplay of Capacity and Undue Influence" at the CBA Alberta, Wills and Trust Section, South Meeting on November 14, 2017.
 

16. JOINT CENTRE FOR BIOETHICS SEMINAR, NOVEMBER 15, 2017

 
Mark Handelman presented at the Joint Centre for Bioethics Seminar, on: "Resolving Treatment Disputes and Obtaining Consent in 'End of Life' Decisions: Whither the Consent and Capacity Board ?" on November 15, 2017.

17. MEET THE NEW OBA ELDER LAW SECTION - LAUNCH EVENT, NOVEMBER 30, 2017

 
The OBA Elder Law Section would like you to join them to celebrate the launch of their newest section, Elder Law on November 30, 2017.
 
Come and meet your executive, fellow section members, and others practising in this emerging field, and hear from our esteemed guest, Dr. Jane Barratt, Secretary General of the International Federation on Ageing. Make connections, share experiences, and mix and mingle with friends and colleagues, as we continue to build our new community. Whether you are currently practising elder law, interested in branching into this ever-growing area, or simply curious about how elder law intersects with your practice, we hope to see you there!  

 
Link to November 30th launch event details

18. CAMBRIDGE BRAIN SCIENCES, ONLINE COGNITIVE ASSESSMENT TOOL PIONEERED BY DR. ADRIAN OWEN

 
See below under Law Review, item (ii) for information on this executive functioning indicator. 

PART II: LAW REVIEW
(i) THE PRESUMPTION OF DESTRUCTION & CAPACITY TO REVOKE: GOOLD ESTATE
by Kimberly Whaley
           
2016 ABQB 303 (CanLII), http://canlii.ca/t/grvgg

2017 ABCA 295 (CanLII), http://canlii.ca/t/h5wcj

In the recent Alberta case of
Goold Estate v Ashton
,[1] the Court examined the presumption of destruction (animo revocandi) when a Will goes missing and its intersection with the necessary requisite decisional capacity to revoke a Will.

The Facts

A testator had executed a Will in 2004 with the assistance of a lawyer.  About two years later, in 2006, she handwrote a subsequent Will (the Holograph Will) revoking the previous Will and changing her executors and beneficiaries.  There was no issue about the formal validity of the Holograph Will (i.e. it was signed and dated, legislatively compliant etc..), nor was there any issue regarding testamentary capacity at the time she made the Will.

After her death in 2014, the original Holograph Will could not be located; however, a photocopy was produced.

The Application

The testator's daughter argued that the administration of the deceased's estate should proceed by intestacy, relying on the long standing presumption that if a Will, last known to be in the custody of the testator, is not found at the testator's death, the testator destroyed it with the intention of revoking it (animo revocandi). As such, it was submitted that the Holograph Will should be deemed destroyed and revoked.

This presumption can be rebutted by evidence showing that on a balance of probabilities, the testator did not destroy the Will, or intend to revoke it.

In this case, there was no evidence presented to suggest that the testator had, in fact, destroyed the Will nor had that she had ever expressed any intention to do so.  When her apartment was searched, a lockbox of documents was found in the bathroom.  The box had grown mold and the documents within it had all but disintegrated.  The testator's daughter admitted on cross-examination that the original Holograph Will may have been in that lockbox, yet too damaged to be recognized.
 
Capacity to Revoke?

The executors appointed under the Holograph Will submitted that the presumption of destruction did not apply in this case since there was an issue as to whether or not the testator had the requisite decisional capacity to revoke her Holograph Will.

In the years before her death, the testator suffered from diabetes and Alzheimer's disease. There was evidence (although limited) of the testator's diminishing capacity. Some evidence suggested that she began showing signs of confusion in 2010 and others testified that she was showing signs as early as 2004, although she had sufficient capacity to continue managing her affairs.

In 2012 her doctor signed a "Declaration of Incapacity".  A further declaration was signed in 2013.  She died in October of 2014.

Evidence was lacking concerning two pertinent facts: 1) at which point did the testator lose the requisite decisional capacity to revoke the Holograph Will (if she did at all)?; and, 2) when was the Holograph Will destroyed (if it was)? Without this information, it would be impossible to know whether the testator had the requisite decisional capacity to revoke the Will since capacity is both decision and time specific.

The daughter argued that "the onus of establishing testamentary incapacity is on the party advancing the allegation and that it is only when lack of testamentary capacity is proven that the onus shifts to the party alleging revocation."

Justice Yungwirth disagreed, stating: "in my view, it is reasonable to require the party relying on a presumption that presupposes capacity, to demonstrate such capacity."

Ultimately, the Court admitted the photocopy of the Holograph Will for probate.  Justice Yungwirth acknowledged the presumption of revocation but noted that the burden of establishing that the Holograph Will was destroyed while the testator was "of sound mind" was on the daughter relying on the presumption and that she did not discharge this burden.

Alternatively, Justice Yungwirth found that, on the evidence, the presumption of destruction had been rebutted by the respondents.

The Appeal -   2017 ABCA 295 (CanLII),  http://canlii.ca/t/h5wcj

The testator's daughter appealed, arguing that the court at first instance erred in placing the burden of proving capacity on those who rely on the presumption.

The Court of Appeal upheld the Judge's decision finding no error in law. A party who relies on the presumption of destruction should be called upon to prove the facts that trigger the presumption including: the possession and control of the original Will by the testator, a continuing capacity to revoke the Will and the absence of the Will after death. The Court of Appeal went on to find that the burden of proof would not have changed the outcome, in any event, given the Judge's finding that the presumption was rebutted.

Takeaway

Much is written about whether testators/testatrix have the requisite decisional capacity to execute a Will, however it is just as important to inquire whether the testator has the requisite decisional capacity to revoke a Will (which involves the same standards or factors to be considered to determine as testamentary capacity) should a Will go missing, or if attempts are made to revoke a Will though destruction.  Further, this case is a good reminder to make certain original Wills are in a safe and secure place; otherwise unintended intestacies or expensive litigation may follow.


[1] 2016 ABQB 303, aff'd 2017 ABCA 295.

(ii) CAMBRIDGE BRAIN SCIENCES
Cambridge Brain Sciences is an online cognitive assessment company based on the pioneering research of renowned neuroscientist, Dr. Adrian Owen. Dr Adrian Owen is a British Neuroscientist and  is the Canada Excellence Research Chair in Cognitive Neuroscience and Imaging at The Brain and Mind Institute at the University of Western Ontario. 
 
Cambridge Brain Sciences has recently introduced an indicative tool that provides a scientifically-validated quantitative measure of a client's executive functioning that lawyers and professionals alike may choose to use to their clients and their retainer for future reference and to facilitate discussions when drafting amending estate documents, or indeed litigating.  A link to the indicative tool website is: www.cambridgebrainsciences.com/capacity
 
To learn more about the product, access the following PDFs entitled:
  1. Cambridge Brain Sciences - Client Guide;
  2. Cambridge Brain Sciences - Product usage Guide;
  3. Cambridge Brain Sciences - Test Validity and Reliability; and
  4. Cambridge Brain Sciences - Tool Overview
Or please reach out directly to the Company's CEO, Marc Lipton at marc.lipton@cambridgebrainsciences.com or Director of Legal Products, Adam Goldberg at: adam.goldberg@cambridgebrainsciences.com  


PART III: UPCOMING EVENTS
Toronto Public Library, Main St
Predatory Marriages and POA Abuse
November 21, 2017
Speakers: Kimberly Whaley, Andrea McEwan, Amanda Bettencourt, Alex Swabuk
 
CBA Nova Scotia
Predatory Marriages
November 30-December 1
Speakers: Kimberly Whaley and Professor Albert Oosterhoff
 
Toronto Public Library, Leaside
Predatory Marriages and POA Abuse
December 6, 2017
Speakers: Kimberly Whaley, Andrea McEwan, Amanda Bettencourt, Alex Swabuk
 
Osgoode Intensive Program in Wills & Estate
Passing of Accounts and Fiduciary Accounts, Compensation and Passing of Accounts
February 13, 2018
Speakers: Kimberly Whaley, Lionel Tupman, and Professor Albert Oosterhoff
 
Osgoode Certificate in Elder Law
Marriage Contracts; Conflicts in Blended Families; Sibling Struggles; intergenerational Transfer of a Family Business; and Family Meetings
March 6, 2018
Speaker: Kimberly Whaley
 
Six Minute Estate Lawyer
Predatory Marriages
May 3, 2018
Speaker, Kimberly Whaley
 
B'Nai Brith Seminar
Estate Planning Gone Awry
Domestic Contracts in SLRA Applications 
May 30, 2018
Chair and Speaker, Kimberly  Whaley 

PART IV: RECENT BLOG POSTS
The New Yorker: How the Elderly Lose Their Rights

Resource: BCLI - Project on Potential Undue Influence

Son Ordered to Vacate Deceased Mother's House: Occupation Rent Ordered: Filippeli Estate

Can a Non-Party attend a Cross-Examination as a Moral Support Person of an Alleged Victim of Elder Abuse?

Equitable Remedies for Financial Abuse of the Elderly: Servello v. Servello

Equitable Remedies for Financial Abuse of the Elderly: Granger v. Granger

Equitable Remedies for Financial Abuse of the Elderly: Fowler Estate v. Barnes

The Ties that Bind

Testamentary Capacity: A Practical Test

The Princess (and her) Bride: Predatory Marriages in Paradise

Queensland Court finds Unsent Text Message to be Valid Will

Memory: The Grand Criterion For Determining Testamentary Capacity

PART V: CONNECT WITH WEL
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