WEL Newsletter, Vol.8 No.5, August 2018

Whaley Estate Litigation Partners helps clients navigate dispute resolution throughout Ontario. We hope you enjoy our newsletter.



Kimberly Whaley was pleased to have been ranked by her peers in Chambers HNW 2018, Private Wealth Disputes and was described as:
Kimberly Whaley of Whaley Estate Litigation is known for her "very broad knowledge in the area, really able to cover just about any type of estates case. She is an assertive litigator who is well-prepared and gets things done."  She is described by one peer as "brilliant, an excellent litigator. I wouldn't hesitate to refer people to her." Another appreciates that "she is a tireless worker, she knows this area very well and she's got a great presence in court and with clients. She is wonderful to work with, she is sensible and cuts to the chase."



Kimberly Whaley was selected by her peers for inclusion in the 13th Edition of The Best Lawyers in Canada 2019 for her work in Trusts and Estates. She has been recognized since 2009.


Kim is pleased to have been asked by the Estate Planning and Litigation Forum to be a member of the steering committee for the 2019 Estate Planning and Litigation Forum through Cambridge Forums. Marylin Piccini Roy is the Chair of the Forum this year.


Kimberly Whaley will be a panelist on the Toronto Public Health forum on September 28, 2018. 


Kimberly Whaley, Andrea McEwan and Erin Cowling presented at Master Class - Concepts of Ageism: Arguments in favour of the need for protections, on August 7, 2018

Kate Stephens, Alex Swabuk and Matthew Rendely presented at Elder Law and The Indian Act: Issues with Federal Oversight of First Nations Wills, Estates, and Guardianship in Canada on August 9, 2018.


WEL sends Bryan Gilmartin back to the University of Windsor with thanks for his great contribution as summer student. Bryan's hard work and assistance is appreciated by WEL and its clients. Best wishes to Bryan's in his final year of law.


WEL would like to thank Richard Nauman who helped the whole team out this summer. All the best to Richard in his second year at Queen's University.

Kimberly A. Whaley & Ian M. Hull jointly present a LIVE WEBINAR SERIES this fall.  REGISTRATION IS NOW OPEN.

Capacity considerations are a critically important aspect of a lawyer's practice, given our emerging social and demographic populations. This valuable live webcast will help you understand a lawyer's obligation, the rules upon which a lawyer's conduct will be examined, how to reconcile legislative and common law precedent, the legal abilities of attorneys and guardians, limitations on their powers, and the role of assessors and assessments. Join Ian Hull and Kimberly Whaley as they address the importance of capacity considerations in a lawyer's retainer.

Client Capacity in a Legal Retainer - SEPTEMBER 26

Client Capacity: A Corporate Lawyer's Retainer - OCTOBER 24

Client Capacity: A Real Estate Lawyer's Retainer -  NOVEMBER 28

Client Capacity: A Family Lawyer's Retainer  - DECEMBER 5

4:45 - 6:00 pm Live Webcast

$75 + HST per session

This program qualifies for 0.5 Professionalism Hours and up to 0.75 Substantive Hours of CPD.

More information and registration at: whaleyhullwebcasts.ca

by Matthew Rendely

From disrupting historical geopolitical alliances, to heated legal conflicts with adult film stars, to lashing out against anyone and everyone via Twitter, Donald Trump's presidency doesn't have a lack of viral news headlines. There is one headline, however, that's reach may have a particular interest amongst estate litigators.
Earlier this year, Donald Trump submitted to a Montreal Cognitive Assessment (MoCA) as part of his presidential medical examination. In light of Donald Trump's, shall we say questionable behaviour, it was speculated that he was cognitively unfit to hold the office of the presidency of the United States of America. However, to the surprise of some, or many, he scored a perfect 30/30 on the MoCA. The news of Donald Trump's perfect score immediately went viral across the internet. As a result, a Canadian doctor is now questioning whether the MoCA has been compromised.
The MoCA is a widely popular tool for doctors to test age-associated cognitive functioning.

According to the New York Times, online searches for the MoCA spiked in the days following the press conference when Donald Trump's score was announced in January 2018. The New York Times also reported that various versions of the MoCA were proliferated online closely following that press conference.
Dr. Hourmazd Haghbayan, a medical resident at the University of Western Ontario, warns that due to the recent mass media attention and exposure to the MoCA, the public's familiarity with the exam could be producing false test results. A letter by  Dr. Haghbayan warning the medical community of this dangerous effect of the news cycle was published last week in the JAMA Neurology medical journal.
In response to Dr. Haghbayan's warnings, Dr. Kenneth Shulman of Sunnybrook Health Sciences Centre, University of Toronto, Department of Psychiatry asserts that the MoCA remains a useful tool despite its mass dissemination.
However, Dr. Shulman cautions that the MoCA does have limitations. He suggests that the MoCA should be used only as a screening tool for cognitive impairment and not as a determinative diagnostic instrument. Dr. Shulman warns further against relying on a perfect MoCA score to disprove impaired capacity, including a score that was conducted before the exam went viral due to Donald Trump. As capacity is specific to task, time and circumstance, Dr. Shulman stated that a high MoCA score is supportive of intact capacity but should only be used in conjunction with other elements of a comprehensive assessment including history and other investigations. It is also very useful as a baseline marker in a longitudinal study of a person's capacity. To the corollary, Dr. Shulman acknowledges that a low MoCA score is also not determinative of impaired capacity, although such a score should raise the suspicion of a physician.
In the context of a will challenge, a MoCA score is a piece of evidence that is often available to those persons who were involved in the care of a testator. In light of  Dr. Shulman's analysis, a high or even perfect MoCA score on its own would therefore have limited probative value. However, one has to wonder whether a low MoCA score on its own can meet the minimal evidentiary burden required by a will challenger following the decisions in Seepa[1] and Martin [2] .
To conclude, Dr. Shulman firmly believes that the MoCA remains a useful screening tool but not a substitute for a capacity assessment. How much probative value a MoCA score holds is an analysis for the courts. With respect to the office of the presidency, however, Dr. Shulman proposes that a personality test may also be a useful screening tool to add to the presidential medical examination.
You can read the full article published by the New York Times on this issue here:   https://www.nytimes.com/2018/07/16/science/trump-cognitive-test-moca-nyt.html 

[1] Seepa v Seepa, 2017 ONSC 5368 (CanLII)
[2] Martin v Martin, 2018 ONSC 1840 (CanLII)
by Kimberly Whaley

Sabetti v. Jimenez,  2018 ONSC 3523 (CanLII), http://canlii.ca/t/hsfqk
The case of Sabetti v. Jimenez 2018 ONSC 3523 provides some helpful guidance on the rules of Will interpretation, executor removal, and a stern reminder of a lawyer's duty to treat the court with candor, fairness, courtesy and respect in the context of adjournment requests.


At the time of her death, the testator was married to the applicant husband and had three adult children from a previous marriage. Her Will appointed her son and her daughter as executors. After certain specific bequests, the Will disposed of the residue of her estate into four shares, one to each of her children and one to her husband. The husband's share was to be held in trust during his lifetime and pay an annual net income, in periodic payments, in the absolute discretion of the trustees.   Upon the husband's death, any amount remaining from his share was to fall back into the residue of the estate.

The estate included a 1/12th interest in the deceased's mother's rather sizeable estate, which was administered in Mexico under the supervision of the Mexican courts. The administration of the Mexican estate was lingering, due to a number of factors including its size and ongoing litigation. The executors of the Canadian estate had no direct or indirect control over the Mexican estate.

Husband's Argument: No Residue of a Residue

The husband argued that the Will did not fully dispose of his share of the residue since there can be "no residue of a residue". By providing that upon his death the remainder of his share of the residue falls back into the residue of his wife's estate, the Will does not name the beneficiaries with sufficient certainty and a partial intestacy must result to that extent.

He relied upon the decision of the Court of Appeal in Re Martin, 24 O.R. (2d) 408 and Chan Estate v. Chan, 1996 CarswellOnt 3405 (Gen Div), wherein Justice Molloy found that "where a gift which forms all or part of the residue fails, it does not fall back into the residue but rather is distributed as an intestacy." Justice Dunphy found that the authorities were not helpful to the husband as they both dealt with bequests that had failed for various reasons.
The husband's main argument was that the Will required the remainder of the husband's share of the residue to effectively travel in a circle to be re-allocated in equal amounts to each of the four shares of the residue created by the Will because the husband was alive at the time the Will came into effect. The Court found that the "argument was absurd and wrong".

The testator's intention was clear on the face of the Will. She clearly intended to dispose of the residue of the husband's share after her husband's death. Where two possible interpretations exist, one of which results in absurdity and the other produces a result which conforms to the apparent intention of the maker of the document, the latter will be preferred. Secondly, in the estate context, the "golden rule" of construction requires a Will to be read as to lead to testacy rather than intestacy, if this can be done without straining the language of the Will or violating the intention of the testator.

Justice Dunphy was of the view that the husband's strained and technical interpretation of the Will would defeat the common-sense intention of the testator. The Will disposed entirely of the first share of the residue and, upon expiry of the life interest created, the remainder of the first share was to be divided equally among the other shares of the residue initially created.
Removal of the Executors

The husband alleged that the executors had failed in their duties and should be removed for: failure to maintain an even hand; failure to communicate; and failure to invest ΒΌ of the value of the estate residue in a manner which would produce a reasonable income for the husband.

Justice Dunphy found that nearly all of the husband's complaints arose from his mistaken view of the executors' duties concerning the value of the Mexican estate or from issues that had been previously resolved. The executors retained qualified professionals to assist them and they sought and received competent advice. The facts of the case did not approach the "clear case of necessity" required to interfere with the discretion of the testator in choosing her executors.

Justice Dunphy concluded that: "Notwithstanding the applicant's self-centred view of what an even hand looks like, there is no evidence before me from which I might conclude that they have failed to be even handed as that duty is properly understood."

The Court dismissed the application with costs.

Guidance for Lawyers on Adjournments and Professionalism

This decision also includes guidance for lawyers seeking adjournments and a reminder of a lawyer's duty to the court.

This case had several prior adjournments. The hearing was last adjourned and rescheduled on a peremptory basis (i.e. final adjournment), to allow counsel, who had just been retained, to review the file. A week before the rescheduled hearing, counsel for the husband filed a confirmation form with the court office indicating "Adjournment Required", and on the day before the rescheduled hearing filed an affidavit of the husband, a "Factum re Adjournment" and a case book, all three addressing the request for another adjournment. No factum was filed addressing the actual issues to be heard on the application. The executors did not consent to the adjournment and ensured all of their evidence was pulled from the file for the judge hearing the matter.

On the day of the hearing, Justice Dunphy heard the husband's motion for another adjournment. Justice Dunphy found that the husband had not provided any evidence permitting him to evaluate his claim that the interests of justice required an adjournment of the hearing that had been scheduled on a preemptory basis. Justice Dunphy declined to grant the request for an adjournment: ". . .It was not open to [counsel] to choose unilaterally. . .to assume he is entitled as of right to yet another adjournment of a full day hearing booked months in advance - particularly when it is peremptory upon him - and fail to file evidence delivered months ago or his factum. . ." [emphasis in original]

After Justice Dunphy dismissed the request for an adjournment, he granted counsel 20 minutes to prepare to proceed with the hearing of his own application and advised that counsel could late file a factum and case book at any time until the close of business that day (which he did). Counsel for the husband began to make some of his arguments but shortly stopped and declined to proceed with the hearing, announcing that his client had instructed him to participate in the hearing no further and that they would be appealing the adjournment decision.

Justice Dunphy then heard from the respondent executors on the issues of the application. Counsel for the husband remained in court. Justice Dunphy concluded that he was "satisfied that both sides have had a full and fair opportunity to place before me the evidence and legal arguments they judged necessary to permit me fairly to decide the issues raised by the Application. . ."

Justice Dunphy's final words on the adjournment matter should be reviewed by all lawyers:

It should be clear to all that the applicant claiming as he did here the right to dictate to the court whether it may proceed with a scheduled hearing was quite inappropriate and unacceptable.  The lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties' right to a fair hearing requires, at a minimum, that counsel be ready to proceed with a scheduled hearing even if the lawyer is seeking an adjournment.  This is particularly true where it is known that the adjournment request is opposed.  

Counsel should be mindful that the ultimate discretion to award an adjournment rests with the Court.   It is always best practice to be prepared to proceed should the Court deny such a request and bear in mind (even when faced with an unfavourable decision) the Principals of Civility for Advocates: "Judges are entitled to expect that counsel will treat the court with candour, fairness and courtesy". 
by Kimberly Whaley

Just over a month ago, Justice Dunphy released a decision dismissing the application of a husband as against his wife's estate and estate executors (his late wife's children from a prior marriage). Costs were awarded to the respondent executors, and the parties were to address the scale and amount of those costs in written submissions. This follow-up decision Sabetti v. Jimenez , 2018 ONSC 4727  http://canlii.ca/t/htc46  addresses the outstanding issues pertaining to costs.
The applicant husband challenged the interpretation of his wife's Will arguing that a partial intestacy resulted. He also argued that the respondent executors had failed in their duties and should be removed.

Justice Dunphy dismissed the application finding that the husband's arguments lacked merit both with respect to the interpretation of the Will and with regard to the conduct of the executors. The decision was also critical of the manner in which the application was pursued.

Costs Submissions:

The respondent executors put forth a costs outline reflecting partial indemnity costs of $132,712.91, substantial indemnity costs of $181,465.35 and full indemnity fees of $210,716.81. They sought a "higher scale" than partial indemnity subject to the Court's discretion.
Relying on the Ontario Court of Appeal's decision in McDougald Estate v. Gooderham[1], the executors proposed that the traditional view on costs in estate litigation has been displaced and the modern approach is to follow the costs rules in civil litigation unless one or more public policy considerations apply. They argued that the "loser pay" principle brings needed discipline to the estate litigation process.

In support of their proposal, the executors pointed to: the husband's wide-ranging affidavit evidence; the nine court appearances the application generated; the lack of merits of the application; the numerous and baseless allegations of intentional misconduct and dishonesty advanced by the husband; and the various admonitions on the matter of costs made by judges who had dealt with this matter in its lengthy path to a hearing.

The husband, on the other hand, argued that he had pursued the claim with a genuine belief that the Court's advice and direction were required to administer the Will properly and that public policy in accurately interpreting the Will justified his intervention. He also submitted that he was an elderly pensioner with limited income without actually claiming that he was impecunious.

The husband denied any "reprehensible" behaviour on his part and argued that costs ought not to be punitive. In all the circumstances, he claimed that he should not pay costs but should instead receive his costs.


Justice Dunphy began his review by noting that the husband's partial intestacy claim "was always a strained and technical point that ran contrary to common sense and the clearly expressed intention of the testator."

The claims against the executors were pursued relentlessly despite being ill-founded from the start.   It could not be said that these claims somehow arose from an ambiguity in the Will. Rather, this was an issue that came about from the husband's frustration with receiving so little income from an estate he believed could pay him more.

Apart from the "ill-founded nature" of the primary complaints, the manner in which this application was conducted contributed very heavily to the resulting high legal costs.  

Justice Dunphy noted that throughout this litigation, the husband conducted himself as if he was "playing with the house's money" which is "precisely the sort of approach that the discipline of a loser pay costs regime is intended to discourage."

A significant portion of the expenses incurred by the respondent executors was due to the inefficient manner in which the claim was pursued, including the adjournments; the failure to prepare; the large number of meritless peripheral issues raised; and, the groundless suggestions of misconduct and wrongdoing on the part of the executors.

The Court also noted that the husband's submissions suggest a plea of impecuniosity without actually coming forward to say so or providing any evidence to support the suggestion. As such, no weight was given to this plea.

Ultimately, the husband was ordered to pay the respondent executors' substantial indemnity costs of $155,000.00 (the amount proposed by the respondents reduced in recognition of a prior order for costs made by Justice Conway which was not on a substantial indemnity basis).
The Court further ordered that the respondent executors were entitled to offset this award of costs against any distributions payable to the husband from the estate.

The Court has a broad discretion when it comes to dealing with costs. Pursuing baseless claims "relentlessly" without regard for the expenditure involved may lead to an award of substantial indemnity costs even if such awards are generally rare.

[1]  McDougald Estate v. Gooderham , 2005, CarswellOnt 2407, 255 D.L.R. (4th) 435 (C.A.) at para. 80

LSO - Administration of Estates and Probate Essentials
September 21, 2018
Chairs: Kimberly Whaley and Tim Grieve
WEL/Hull Webinar Series
Client Capacity in a Legal Retainer
September 26, 2018 - Info and registration

Client Capacity: A Corporate Lawyer's Retainer
October 24, 2018 - Info and registration

Client Capacity: A Real Estate Lawyer's Retainer
November 28, 2018 - Info and registration

Client Capacity: A Family Lawyer's Retainer
December 5, 2018 - Info and registration
Live Webcast presented by Ian Hull and Kimberly Whaley
4:45PM - 6:00PM (ET)
$75 + HST per session
This program qualifies for 0.5 Professionalism Hours and up to 0.75 Substantive Hours of CPD.

Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
September 28, 2018    
Speakers: Andrea McEwan and Amanda Bettencourt

Toronto Public Health Vulnerable Adults & Seniors Forum
September 28, 2018
Panel Speaker: Kimberly Whaley
LSO Estates and Trusts Summit
Undue Influence in Inter Vivos Transactions
October, 10, 2018
Speaker: Kimberly Whaley

Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
November 2, 2018        
Speakers: Kimberly Whaley and Alex Swabuk

Osgoode Professional Development

2019 Elder Law - Marriage Contracts; conflicts in Blended Families: Sibling Struggles, Predatory Marriages and Family Meetings
February 26, 2019
Speakers: Kimberly Whaley and Professor Albert Oosterhoof

Osgoode Professional Development

Managing Consent & Capacity Issues in Wills and Estates Practice
March 19, 2019
Speaker: Kimberly Whaley

Osgoode Professional Development

Powers of Attorney and Guardianship: Non-contentious and Contentious Matters
April 9, 2019
Speaker: Kimberly Whaley

Osgoode Professional Development

Passing of Fiduciary Accounts
April 30, 2019
Chair: Kimberly Whaley Speakers: Professor Albert Oosterhoof, Nancy Patrick, Birute Lyons and Ian Hull.

Benjamin Orders Redux

Toronto Police Elder Abuse and Neglect Guide

The Rule in Saunders v. Vautier: Use It Or Lose It?

Vesting Orders and Gifts of Real Property under a Will: Nobrega and Elder v. Trustees of the Estate of M. Gasparovich

Extension of the Limitation Period for a Claim for Dependant Support: Habberfield v Sciamonte et al.

Did You Know? - Section 10(4) of the Substitute Decisions Act and how it can Help

Republication of Wills: A Forgotten Doctrine?

Public Appeals

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