WEL Newsletter - Volume 6, Number 7 - October 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

Kimberly's article: "New Spouse/Old Money: Claims Arising Out of Later In Life Partnerships - Part III" was published in Money and Family Law, September 2016, Issue 31-9.

Kimberly presented her article: "Attacking and Defending Gifts" at the STEP Toronto Passport Series Program, October 19, 2016.


Kimberly was quoted in the Elder Law Boom article by Danny Bradbury.

Kimberly Whaley has been ranked in the Chambers Canada 2017 as a  "very effective litigator with a considerable reputation in this field."


On October 13, 2016, Lionel and Andrea presented at RBC Wealth Management in house Seminar.  Specifically, they addressed issues relating to when a guardian is appropriate, the process of guardianship appointment, and the duties and obligations of guardians. They also addressed the practical issues that have arisen in specific case law.

Kimberly contributed Chapter 9, " The Law Always Has Its Say", in the book Single by Choice or Change, edited by Jill O'Donnell and Jackie Port er.


Helen Burgess' article "Discrimination in Wills: How far can it go?" is featured in the Ontario Bar Associations October edition of JUST magazine.


Arieh Bloom and Andrea Buncic will be presenting on: Disputes Involving Estate Trustees and How to Avoid Them When Estate Planning or Acting as an Executor, at the RBC Wealth Management Workshop on November 9th at the Lazy Daisy's CafĂ©, 1515 Gerrard St. East, Toronto, ON  




Kimberly's article: "Brown v. Rigsby - Court of Appeal Denies Estate Trustees Indemnification Based on Unreasonable and Self-Interest Behaviour" was published in the STEP CONNECTION Toronto Branch Newsletter, October 2016.


The article: "Discrimination by Fiduciary Protection: Continuing Federal Paternalism in Aboriginal Succession and Inheritance Law" written by Lionel Tupman, Arieh Bloom and Kate Stephens was published in the Advocates Quarterly 2016.


See book review by Andrea McEwan below.

(i) WEIGAND v. MOHAMMED, 2016 ONSC 6201 (CanLII), http://canlii.ca/t/gtz2d
Will a Court extend the Limitation Period to file a Dependant Support Claim under the SLRA?

The recent case of Weigand v. Mohammed [1] examined the factors applied by a court when determining whether to extend the six month limitation period to file a dependant support claim under the Succession Law Reform Act RSO 1990, c. S.26 (SLRA) and in particular, the effect of the limitation period when the dependant claimant is a minor. 

The Facts

The deceased passed away on May 5, 2013 at 49 years old. When he died he had a common-law partner and three children ages 16, 19, and 20. The 20 year old was not a dependant at the time of his death.  The deceased left everything to his common-law wife and on November 5, 2013 the wife was issued a Certificate of Appointment of Estate Trustee with a Will. In September 2016, almost three years after the wife's appointment as Estate Trustee, the two younger children sought leave to bring an application for dependant support under s. 58 of the SLRA. The estate, for the most part, had been distributed.

The Law

Under the s.61(1) of the SLRA no application for a dependant support claim under s.58 may be made after 6 months from the grant of letters probate of the will or of letters of administration, except with leave. However, this limitation does not begin to run at any time during which the person with a claim is a minor.[2] Nevertheless, the court has jurisdiction, if it considers it proper to allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.  [3]

The Evidence

The children's reason for not filing within the prescribed time was that they alleged that they were misled by the deceased's common-law wife. The children's grandfather filed an affidavit saying that he had specifically purchased a house for the deceased and his family. After the death, the wife told the children that she would sell the house that was in the deceased's name and equally distribute the proceeds to all three children. But as time went on it became clear that, despite her multiple assurances, the house would never be put up for sale.  The house was transferred into the name of the wife. The wife denied that she ever made this promise.

The wife also testified that she paid the children's mother $30,702.27 in child support owing from the estate which she said forecloses any support claim. The wife argued that the children should not be granted leave  as they waited 16 months and 23 months  (they filed their applications at different times) after the limitation period expired.

The children disputed this calculation as the youngest was a minor at the time of death. Based on court comments in B(JDD) (Litigation Guardian Of) v G(JEF), [1998] OJ No. 3748, and given the provisions of the Limitation Act, 2002, SO 2002, c.24, Sched B, that the limitation period would not have expired until 6 months after the youngest had turned 18 on November 30, 2014. Justice George agreed with the children. [4]  However, they were still outside the limitation period.

The Decision

Justice George took the following into consideration: 1) there was a delay, the limitation period had passed; 2) there was conflict in the evidence as to the reason for delay; 3) the wife already paid specifically for child support and the children's mother released the wife from any further claims upon receipt of the funds; 4) the estate had, for the most part, been distributed; and 5) the deceased had an obligation to pay child support at the time of death.[5]

Justice George noted that he must consider the children's delay in bringing the claim, the reason for the delay, and whether there would be prejudice to the estate's ability to defend the proposed claim.  This entailed looking at whether the situation bears review ofwhether the testator made adequate provision in his will for dependents. Not whether he had in fact done so, but is there a sufficient basis for review? Also:

While it is true the reason for delay is a factor to consider, a request for an extension is not grounded solely in "good cause" being shown for the delay. The discretion to extend (or refuse) is a question of what is equitable between the parties, in all the circumstances. [6]

In this case, there was delay and there was conflicting evidence respecting the delay. Since the court was unable to resolve the conflicts in the evidence, it weighed in favour of an extension.

According to s.61(2) of the SLRA, the court has jurisdiction to extend the limitation period and allow an application over "....any portion of the estate remaining undistributed at the date of the application". This means that if the estate had been fully distributed an extension should not be granted. Justice George noted that in this case, a misrepresentation by the estate trustee was alleged. The estate trustee was also the sole beneficiary, who also happened to be in current possession of the estate's main asset, the very asset which was the subject of the misrepresentation.  Justice George observed that it was "inconceivable that the inclusion of this language" in the SLRA was intended to shield administrators who engage in such behaviour: "I am not saying this is what happened, but a trial judge could come to this conclusion on the evidence before me." [7]

With respect to the child support payment Justice George had this to say:

At the end of the day, there is a difference between the SLRA and the Family Law Act's support provisions, and for good for reason. This will be highlighted on the application, as the question will be whether the support order, in particular the life insurance term, amounts to adequate provision.  In other words, the SLRA does not call for an examination of whether a term within a child support order was adequate, but whether there is adequate provision for dependents going forward from the date of death. [8]

Ultimately, Justice George concluded:

In circumstances like these, to refuse leave and not grant an extension, I would have to conclude that the prejudicial effect of an extension upon the respondent would outweigh the need to engage in a review and determine entitlement to support under s.58. I can't reach that conclusion. [9]


While an extension was granted in this case it is important to be aware of the appropriate and differing limitation periods in estates and trusts litigation. While a court has the discretion to extend that limitation period, it is merely that, discretion.

[1] 2016 ONSC 6201
[2] 2016 ONSC 6201 at para.6
[3] 2016 ONSC 6201 at para. 7, SLRA at section 61(2)
[4] 2016 ONSC 6201 at para. 17
[5] 2016 ONSC 6201 at para. 33
[6] 2016 ONSC 6201 at para. 32
[7] 2016 ONSC 6201 at para. 42
[8] 2016 ONSC 6201 at para. 44.
[9] 2016 ONSC 6201 at para. 45.

(ii) DRISCOLL v DRISCOLL, 2016 ONSC 6013 (CanLII), http://canlii.ca/t/gtszb
Driscoll v Driscoll: Costs Paid by Estate of Testator Who Left Everything to Son, Ignoring Seven Daughters

Ever since McDougald Estate v. Gooderham,[1] costs in estate litigation have looked more like costs awards in civil litigation where the "loser pays".

This is the current expectation, unless one or more of the relevant public policy considerations dictate that costs (or some portion of them) should be paid out of the assets of the estate. Recently the Ontario Court of Appeal[2] confirmed that the public policy considerations at play in estate litigation are primarily of two sorts: 1) where the difficulties or ambiguities that give rise to the litigation are caused, in whole or in part, by the testator; and 2) the need to ensure that estates are properly administrated. Justice Rutherford examined whether the situation in Driscoll v. Driscoll,[3] where the mother left everything to her son and nothing to her seven daughters, was one where the Estate should pay the costs of a Will challenge based on alleged lack of testamentary capacity and undue influence.

The Facts

A mother of eight children died in 2014. Her husband had predeceased her and she was the sole beneficiary under his Will. She named her fourth child and only son as her Estate Trustee and the sole beneficiary of her estate (approximate value, $700,000.00), leaving her remaining children (seven daughters) nothing. It was the mother's long-held view that the daughters were expected to make their way in life through marriage to men who would support them and their offspring.

The deceased's son applied for a Certificate of Appointment of Estate Trustee with a Will. Three of the daughters objected arguing that the mother did not have testamentary capacity when she executed her Will in 1996; that she did not "know and approve" of the contents of her Will; was unduly influenced by the son; and sought costs of the litigation. After a summary judgement motion, a six day hybrid trial was conducted that involved testimony from over 20 witnesses.

In his trial decision[4] Justice Rutherford found in favour of the son, determining that the mother had testamentary capacity although it was a conclusion he reached "without some difficulty, not only in view of the evidence of cognitive deficits on the part of Mrs. Driscoll, but also because I see the effect of the Will as simply unfair to all of her daughters".[5] Justice Rutherford also concluded that "a finding that [the son] exercised undue influence on his mother such that she made her Will in his favour is not even close. I cannot possibly find on the balance of probabilities, that there was any undue influence, by [the son] or anyone else in this case." [6]

Costs Decision

The son felt that the objecting daughters should be jointly and severally responsible for his costs on a substantial indemnity basis ($154,303.43). The daughters argued that they acted reasonably and responsibly throughout, had a credible body of evidence in support of their position, were of very modest means and should not be crushed by the kind of costs award sought by their brother who at the same time inherited the entire estate.  They sought their disbursements and costs of the summary judgement motion to be paid by the estate ($50,227.17) and the parties to bear the remainder of their own costs.

Justice Rutherford appeared to be struck by the unfairness of the situation:

While I acknowledge a testator's right to make unfair, even what may seem cruel decisions in her Will, I am sensitive to [a daughter's] email cry to her sisters: "I will say this . . . this is the most humiliating thing she could have ever done to any of us. . ." [7]

With respect to whether this situation fell within a public policy exception noted by the Courts, Justice Rutherford had this to say:

In leaving the family assets to the one son and ignoring the seven daughters, it is at least arguable that Mrs. Driscoll may have engaged the first of the public policy considerations that justify awarding costs from the estate to all legitimate parties. But if that is too much of a stretch, the strength of the Objectors' case against testamentary capacity surely engages the second public policy consideration. In
Orfus Estate v Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225 the Court of Appeal upheld the motion judge who ordered the Objector's costs paid out of the estate assets because he considered the Objector had reasonable grounds on which to launch and pursue her challenge. [8]
Ultimately, Justice Rutherford determined that "justice and equity may best be met in light of my substantive findings and judgment by acceding to the request of the Objectors". [9] The daughters were awarded their disbursements and motion costs out of the estate and the son was entitled to be indemnified for his full costs payable out of the estate as well.


While ultimately, Justice Rutherford awarded the costs out of the estate based on the strength of the daughters' case, clearly the inequity of the situation weighed significantly on the discretion of the court in this cost decision.

[1] (2005), 255 D.L.R. (4th) 435 (Ont. C.A.)
[2] 2016 ONCA 303
[3] 2016 ONSC 6013
[4] 2016 ONSC 4628
[5] 2016 ONSC 4628 at para.10
[6] 2016 ONSC 4628 at para. 47
[7] 2016 ONSC 6013 at para. 10
[8] 2016 ONSC 6013 at para. 11
[9] 2016 ONSC 6013 at para.12

Probate Practice,  5th ed. (Toronto: Thomson Reuters Canada Limited), Ian M. Hull and Suzana Popovic-Montag (eds),  Macdonell Sheard and Hull

By Andrea McEwan

Ian Hull and Suzana Popovic-Montag have recently updated the Fourth Edition on Probate Practice, authored by Rodney Hull Q C, and Ian Hull, and originally authored by Macdonell, Sheard and Hull. The Honourable Ian Macdonell, Terence Sheard Q.C., and Rodney Hull Q.C., have since passed away, yet their notable book - often referred to as The Book on Probate lives on. The new edition provides an up-to-date, comprehensive and hands-on guide to estate administration.
While the book deals primarily with estate administration in Ontario, it is not exclusive and provides reference to all of the other jurisdictions in Canada. The book covers a broad range of topics, including:
  • Courts of Probate;
  • Testamentary Capacity, Undue Influence, Fraud and Mistakes;
  • Support of Dependants;
  • Form of Will;
  • Common Form Practice;
  • Conditional or Contingent Wills, Joint Wills and Mutual Wills;
  • Passing of Accounts;
  • Costs; and
  • Solicitors Fees. 
The publication is broad in scope, and provides sufficient detail on each topic, including the relevant legislation, applicable rules and case law. Each chapter is practical, concise and easy to read. It has extensive appendices that include forms, precedents and checklists, each of which are cross-referenced in the body of the text. Of particular interest were the precedent Order Giving Directions and the Mediation Checklist.
The section dealing with progressive dementia alerts the reader to types of issues faced when dealing with someone with a progressive dementia, including whether a testator's mental deterioration has deprived him or her of testamentary capacity and the policy goals of modern legislation. Given our population demographics these types of cases are increasingly common and will become more so in the coming years.
There is an excellent explanation of suspicious circumstances and the burden of proof included in the chapter on Testamentary Capacity. The text highlights that the burden of proof on those alleging undue influence or fraud remains with them throughout. The section on fraudulent concealment is equally helpful.
The chapter on Passing of Accounts takes the reader through the legislative and common law framework for a passing of accounts. It addresses both voluntary and compelled passing of accounts, the power of the judge on a passing of accounts, the effect of judgment on passing and releases, among other topics.
This publication is a valuable resource for anyone practicing in the area of estates law, whether in administration or litigation, and should be required reading for new and seasoned lawyers alike. This book provides the foundation of probate law from Planning, Administration, to Litigation.
Ian Hull is a partner at the firm of Hull & Hull. He practices exclusively in the area of estates, trusts and capacity litigation. Suzanna Popovic-Montag is the managing partner of Hull & Hull LLP. She practices exclusively in the area of estates, trust, capacity and fiduciary litigation. Both are experienced practitioners who write and speak frequently on a variety of topics. 

The Proposed "All Families are Equal Act" and its Impact on Estate Law in Ontario
By Krystyne Rusek

On Thursday September 29th, 2016, the Ontario government made an announcement about proposed legislation that will make significant changes to the Children's Law Reform Act, Vital Statistics Act, Succession Law Reform Act and 37 other Ontario Acts.  This legislation was introduced to address inequality and legal uncertainty with respect to legal treatment of children conceived using assisted reproductive technology.

Currently, parents who conceive children using reproductive technology, or a surrogate to carry the child, may encounter legal obstacles when the child is not biologically related to one of the intended parents.  Where a child is born with the assistance of a sperm donor, egg donor or embryo donor, the non-biologically related parent may need to obtain a declaration of parentage, in order to be recognized as the legal parent of the child. The same may be true where a child is carried by a surrogate.  The rights and obligations of both biologically-related and non-biologically related "parents" have been uncertain for a number of years, and there has been little Ontario caselaw to clarify the situation.

On June 22nd, 2016, the matter came to a head when Madam Justice Chiapetta declared that the Children's Law Reform Act ("CLRA")[1], violates the Canadian Charter of Rights because it "... does not provide equal recognition and the equal benefit and protection of the law to all children, without regard to their parents' sexual orientation, gender identity, use of assisted reproduction or family composition."   The Ontario government was given until the end of September to make changes to the laws of parentage.

In response, and based on a private member's bill introduced in 2015, the Ontario Attorney General introduced legislation that, if passed, would recognize, without need of a court order, the following:
  1. That the legal parents of a child conceived through assisted reproduction, are the birth parent and the birth parent's partner, if any, at the time of the child's conception.
  2. That the legal parents of a child born through surrogacy are the intended parents, subject to the existence of a pre-conception parentage agreement and other preconditions[2].
  3. That up to four people could be legal parents of a child parents, subject to the existence of a pre-conception parentage agreement[3].
  4. That a deceased person can be the parent of a child conceived after said individual's death, subject to certain requirements[4].

The legislation has passed the second reading and has been referred to the Standing Committee on Social Policy. The Standing Committee held meetings on October 17th and 18th to allow interested parties to provide oral submissions.[5]  The deadline for written submissions was October 18th.  Following the public hearings, the Committee met on October 24th and 25th to review the proposed legislation on a clause by clause basis.  No report has yet been published. 
If passed, the proposed legislation will have significant consequences on estate planning and administration.  Paragraph 71 of the bill amends the Succession Law Reform Act ("SLRA")[6] by amending the definition of "child" to include a child conceived and born alive after the parent's death, provided a court has made a declaration, under s. 1.1(1), establishing the deceased person's parentage of the posthumously conceived child[7].   The definition of "issue" is likewise amended to include a descendant conceived and born alive after the person's death, provided a court has made the declaration of parentage under s. 1.1(1)[8]

The legislation also states that a deceased person's "descendants and relatives", conceived 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, provided that the above-referenced declaration of parentage has been made[9].  Furthermore, provided that declaration under s. 1.1 has been obtained, the deceased parent of a posthumously conceived child shall be deemed to be under a legal obligation to provide support to the child, thus opening the doors to dependant support applications[10]

While providing some clarification in regard to legal entitlements of children conceived through assisted reproduction, the amendments to the SLRA may create further uncertainty in the area of intestate inheritance and dependant support.  One potential problem is that the declaration of parenthood can be made up to three years after the death of a person, or later, where the Court deems it appropriate.  The uncertainty that results from this delayed declaration of parentage will impact significantly on how and when an estate trustee can administer an estate.

It is likely that many more issues will arise as the law begins to be applied.  For now, we await the report of the Standing Committee on Social Policy on the oral and written submissions received, and amendments pursuant to its clause by clause review. 

[1]  R.S.O. 1990, c. C. 12, as amended.
[2]  The other preconditions are that the surrogate obtain independent legal advice before entering into the agreement and that the surrogate's confirms her consent to give up the baby, within 7 days following the birth. As well, the agreement must be in writing.
[3]  The agreement must be in writing and the birth parent must be one of the four parties.
[4] The reproductive material of the deceased person had to be intended to be used for reproductive purposes, the deceased person provided consent to the use of the reproductive material after said donor's death, by a specified person, and the deceased person gave written consent to be the parent of a child conceived after said donor's death, which consent had not been withdrawn.
[5]  Hansard transcripts link
[6]  R.S.O. 1990, c. S.26.
[7] Section 1.1(1) of the proposed changes to the Succession Law Reform Act sets out the conditions required:
  1. The person who, at the time of the death of the deceased person, was his or her spouse, must give written notice to the Estate Registrar for Ontario that the person may use reproductive material or an embryo to attempt to conceive, through assisted reproduction and with or without a surrogate, a child in relation to which the deceased person intended to be a parent.
  2. The notice under paragraph 1 must be in the form provided by the Ministry of the Attorney General and given no later than six months after the deceased person's death.
  3. The posthumously-conceived child must be born no later than the third anniversary of the deceased person's death, or such later time as may be specified by the Superior Court of Justice under subsection (3).
  4. A court has made a declaration under section 12 of the Children's Law Reform Act establishing the deceased person's parentage of the posthumously-conceived child.

Interpretation (2)  For the purposes of paragraph 1 of subsection (1), "assisted reproduction", "embryo", "reproductive material", "spouse" and "surrogate" have the same meaning as in section 1 of the Children's Law Reform Act.

[8] Section 71(2) of the bill.
[9] Section 71(6) of the bill.
[10] Section 71(9) of the bill.

2nd Annual WET Fundamentals Course
October 29, 2016
Contested Passing of Accounts
Speaker: Kimberly Whaley & Lionel Tupman
LSUC Summit
November 3, 2016
Discrete Functions of Courts of Probate and Construction
Speaker:  Albert Oosterhoff
LSUC Summit
November 3-4, 2016
Solicitor's Negligence
Speakers: Kimberly Whaley and Lionel Tupman
RBC Wealth Management
Estate Workshop for Millennials
November 9, 2016
How to avoid litigation with your siblings/family members
Speaker: Andrea Buncic/Arieh Bloom
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
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
Legal Education Society of Alberta (LESA), Calgary
Undue Influence
March 1, 2017
Speaker: Kimberly Whaley
Legal Society of Alberta (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 & 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 

Abatement and General Powers of Appointment, by Albert Oosterhoff

The Toronto Star: High hopes new drug could be a game changer against long incurable Alzheimer's

Wall Street Journal: Trending Toward Paid Leave for Elder Caregiving?

When Does Ontario Law Say a Person Has Died?

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