WEL Newsletter, Vol.9 No.11, February 2020
  ,
 
Who knows whether the history of Valentine's Day lies in Ancient Roman origins, indeed, did it start with the festival of Lupercalia, or when Emperor Claudius II executed two men - both named Valentine - on Feb. 14th, or when Pope Gelasius declared February 14th, St. Valentine's Day?  Whatever the real story, today we recognize this day symbolized by cupids, candy, red hearts, red flowers, romantic dinners, flirty gestures, and quite befittingly, it usually falls around Family day. Valentine's Day is a day to have a bit of fun. To celebrate love of a friend, a family member, a colleague, or just to be silly and send anonymous messages of sweetness. Wouldn't it be great to see a video of all of the Valentines' Day smiles across the world? This Valentines' Day - give yourself license to have some fun-spread some love. Forget for a moment all of the bad and enjoy some good.
 
And in the wise words of A.A. Milne, Piglet, & Winnie-the-Pooh.....
 
Piglet to Pooh - "How do you spell 'love'?"
Pooh to Piglet - "You don't spell it...you feel it."
 
As ever-Enjoy the read,
 
Happy Valentine's Day!

Kim


Here is our February 14 OR ad, our first Whaley Estate Litigation Crossword Puzzle. Have fun!  For the solution, visit:  http://welpartners.com/crossword

 

I. WEL NEWS
1. CONGRATULATIONS TO SAREH LUA EBRAHIMI  ON BEING 
CALLED TO THE ONTARIO BAR

WEL is happy to announce that Sareh Lua Ebrahimi is now  an associate lawyer with our firm. Lua's call ceremony was January 31 2020. Lua articled with WEL in 2019, received her LLB in 2009 from Nelson Mandela University in South Africa and practised in Johannesburg in estate planning and litigation.
 
She is currently working toward receiving the trust and estate practitioner (TEP) designation.
 
Congratulations Lua!
2. YES TV INTERIVEW ON ELDER ABUSE, JANUARY 22, 2020
 
Kim Whaley and Sareh Lua Ebrahimi were interviewed by Faten AlFaraj, a producer with the TV show, "Context beyond the Headlines" on the topic of Elder Abuse.
 
The interview aired on YES TV on Wednesday, 22 January, 2020 
 
3. THE LAWYERS DAILY, JANUARY 30, 2020
 
Daniel Paperny's article, 'Estate Law Treatment of Contemporary Relationships Needs a Refresh' was published by the Lawyers Daily on January 30, 2020. 

4. ONTARIO BAR ASSOCIATION INSTITUTE FEBRUARY 5, 2020
 
Kimberly Whaley and Natalia Angelini co-chaired the OBA Elder Law Section Institute program which was be held on Wednesday, February 5, 2020.
 
This year, Professor David Freedman, Professor Albert Oosterhoff, Thomas Grozinger, and John Poyser prepared excellent materials and engaged in a great debate on issues concerning the rights and limitations of attorneys under power of attorney.
 
Thank you for making this the best attended OBA Elder Law Institute program!  We had over 108 people registered for this CPD!
 
Professor Albert Oosterhoff's paper & presentationAre Beneficiary Designations Testamentary?  

John Poyser's paper & presentation Beneficiary Designations and Attorneys - Legislation and Legislative  Reform
5. NOTICECONNECT: CASE BRIEF: COURT ORDERS ARE NOT SUGGESTIONS
 
Kimberly Whaley's article, Court Orders Are Not Suggestions, was published on NoticeConnect on February 4, 2020
 
6. THE LAW TIMES, FEBRUARY 10, 2020, QUOTES KIMBERLY WHALEY & JOHN POYSER,
 

II. WEL SHOUTOUTS
WEL Partners congratulates Jan Goddard, named as the soon to be recipient of the OBA Award of Excellence in Trusts & Estates Law, to be presented at the end of term dinner this spring.  

Jan Goddard spent approximately 10 years at the Office of the Public and Guardian and Trustee in Ontario acting as counsel before bravely venturing out and establishing her own law practice.  Twenty years later, Jan has continued to flourish with a very successful firm focused on all areas of elder law, guardianship, capacity and estate litigation as well as drafting and administration.
 
We know that Jan has been recognized by Best Lawyers in Canada as well as being Lexpert ranked, and her firm, Goddard Gamage LLP has been named as a top wills, trusts & estates boutique in Canada by Canadian Lawyer.
 
Jan is a generous and giving colleague who gives selflessly of her time and expertise to write, to teach lawyers, to educate the public, and to make a difference in the lives of older adults and the families of older adults.
 
Jan is a Distinguished Fellow of the Canadian Centre of Elder Law and has chaired for the last several years the CCEL National Conference together with the British Columbia Law Institute.
 
That Jan's excellence needs to be spoken to in such detail is, in fact, unnecessary, but, I do not want to be remiss in making sure that our colleague and friend has all of the accolades she deserves on this very honourable and appropriate recognition.
 
Jan has worked tirelessly in the area of law reform and is a volunteer on various committees and boards, helping the elderly and persons under disability in our community. 
 
Jan has dedicated her career to advocating in the furtherance of the rights of persons under disability.
 
We are pleased that Jan Goddard has received this distinction and recognition, and wish her every success in the future. 

Congratulations Jan!

III. LAW REVIEW
(i)  ARE YOU CERTAIN YOU WILL BE GRANTED LEAVE TO REQUIRE AN ATTORNY TO PASS ACCOUNTS?
Ontario Court of Appeal Looks at the Test for Leave to Obtain an Order to Pass Accounts
 
Lewis v Lewis 2020 ONCA 56 http://canlii.ca/t/j4xnz   
 
By Kimberly Whaley
 
This case reflects an increasingly common occurrence in estate and elder law litigation: a falling-out amongst siblings appointed as their parents' attorneys under power of attorney documents and those not appointed as attorneys. Those without authority to act, are often suspicious of their siblings' management of the property under attorneyship.
 
In Lewis v Lewis, 2020 ONCA 56, elderly parents appointed two of their six children as their attorneys for property. The other four children brought an application under ss 42(1) and (4) of the Substitute Decisions Act, 1992, SO 1992, c 30 (the "SDA") seeking leave to bring an application to require the attorneys to pass their accounts.
 
While the parents were alive for the hearing of the application, sadly, they died about seven weeks apart shortly after the application was heard.
 
Section 42(1) of the SDA provides that a court may order that all or part of the accounts of an attorney be passed. Section 42(4) partially sets out who may make an application under section 42(1) seeking the passing of accounts. This list includes specified persons (including a dependant, the Public Guardian and Trustee, a judgement creditor.....) and "any other person, with leave of the court."
 
The test for leave was defined in Ali v Fruci (2006), 22 ETR (3d) 187 (Ont SC) at para 3. The court must be convinced that:
 
1)     the person or persons seeking leave have a genuine interest in the grantor's welfare; and,
2)    it is reasonable to believe that a court hearing the application under 42(1) may order the passing of accounts. [1]
 
A court has discretion to order, or not order, a passing of accounts under s. 42(1), as confirmed by the Court of Appeal in Dzelme v Dzelme, 2018 ONCA 1018. Dzelme also set out the facts a court must consider in exercising its discretion. These factors include, the extent of the attorney's involvement in the grantor's financial affairs and whether the applicant has raised a significant concern in respect of the management of the grantor's affairs so as to warrant an accounting.
 
In the current case, the first prong of the Ali v Fruci test was not in issue since the attorney siblings conceded that the non-attorney siblings had a genuine interest in their parents' welfare. However, the application judge found that the second prong of the test was not met since the "record fell far short," and lacked "evidentiary stamina" so as to suggest that there was "any direct allegation of misfeasance or wrongdoing."[2] The court was not persuaded that it should exercise its discretion to grant leave to the non-attorney siblings and to order an accounting.
 
Appeal
 
On appeal, the appellant siblings argued that the judge erred in finding that there was a lack of evidence and erred in principle in the exercise of discretion. The Court of Appeal was not persuaded by this argument.
 
The uncontested evidence showed that the father remained capable of managing his and his wife's "intertwined affairs" and continued to receive all bank statements until both parents moved into a long-term care facility. The attorneys helped their father manage their parents' finances, such as in paying their bills, but kept the father apprised of all actions they took. The attorneys also responded to the appellant siblings' requests for documentation. Further, the parents' investment portfolio increased between the time that the attorneys were appointed and the time when the appellant siblings brought the application.
 
The father (who was represented by his own counsel) gave evidence that he had no concerns with the attorneys' management of his and his wife's affairs and "wanted the litigation to come to an end." [3]
 
The Court of Appeal agreed with the appellants that an attorney can be ordered to pass accounts and leave may be granted under s 42(4) in the absence of significant concerns about misfeasance or wrongdoing. Importantly, however, such relief must be considered in the context of the record. The appellants made veiled allegations of misfeasance and/or wrongdoing and the application judge focused on the lack of evidence of misfeasance and/or wrongdoing in support of their allegations. The appeal was dismissed.
 
Takeaway
 
Often older adults find it easiest, or more comfortable to appoint one or more of their adult children as their attorneys under a power of attorney document. Many make this decision without thinking through the possible familial consequences of this action. Some questions to consider: Is there currently a rift between the siblings? Will the appointment exacerbate any existing ill-will? Are the siblings aware of who will be appointed before the appointment takes place? Communication is often the key to acceptance. Is there a trustworthy friend, or someone other than the adult children who could act as an attorney? Lastly, it is unfortunate that some parents, late in life are involved in contentious litigation as between their children. Litigants should be aware of the presumption of capacity, respecting the choices of the grantor, and ensure that the motives in procuring an accounting are pure and not motivated by jealousy, greed, or the desire for control!


[1] Lewis v Lewis, 2020 ONCA 56 at para 5, citing Ali v Fruci (2006), 22 ETR (3d) 187 (Ont SC), 2006 OJ No 1093 (SCJ) at para 3.
[2] Lewis v Lewis, 2020 ONCA 56 at para 8.
[3] Lewis v Lewis, 2020 ONCA 56 at para 13.
(ii)   THE KOBE BRYANT ESTATE:  A 'MAMBA MENTALITY' TOWARDS A COMPREHENSIVE ESTATE PLAN
By Alexander J. Swabuk & Henry Howe
 
Kobe Bryant ("Kobe") is widely considered one of the greatest players in NBA history.
 
He played in the Association for 20 years, all of them for the Los Angeles Lakers. In that span, Kobe (aka the "Black Mamba") was a five-time NBA champion, an 18-time all-star, the 2008 league MVP, and the winner of many other individual awards. At present, he is ranked 4th all-time in league scoring and elementary school children (...and maybe even 31 year old estate litigators) still shout "Kobe" when throwing paper balls into recycling bins.
 
Tragically, Kobe was killed in a helicopter crash on January 26, 2020, at the age of 41 years old.[1] The helicopter was transporting Kobe, his 13-year-old daughter Gianna Bryant ("Gianna") (a budding basketball player in her own right who was ready to follow in her father's footsteps); baseball coach John Altobelli, his wife, Keri, and their basketball-playing daughter Alyssa; mother and daughter Sarah and Payton Chester; Mamba Academy basketball coach Christina Mauser; and pilot Ara Zobayan. [2]  Flying in foggy conditions, through hilly terrain near Calabasas, California the helicopter descended suddenly before crashing into a hill.
 
No one survived the crash.
 
Kobe's Legacy
 
Since that fateful day on January 26th the sports world has collectively been in shock and has continued to mourn the former Lakers legend. Bryant was a role model to a generation of NBA players, much like Michael Jordan had been before him. In the aftermath of his death, teams around the NBA and in every other major North American professional sport have paid tribute to him. Some players, who wore Bryant's jersey numbers (8 and 24) precisely because of his influence on them, have now changed their numbers to honour him.[3] Current Lakers star LeBron James wrote in an Instagram post that he was struggling to give a response to Kobe's death, adding that he was "heartbroken and devastated," and promising to "continue [Kobe's] legacy". [4]
 
Before he reached the NBA, Kobe was already recognized as a dominant player for Lower Merion High School, in the suburbs of Philadelphia, Pennsylvania. He became a starter for the team as a freshman, was named Pennsylvania Player of the Year in his junior year, and led the team to a state championship in his senior year.[5] Kobe's early success, which included breaking the all-time scoring record among Pennsylvania high school players, led to his decision to reject all college offers, and immediately pursue a professional career. At just 17 years old, Kobe was drafted to the NBA. Kobe met his wife, Vanessa Laine, in 1999 and together the couple had four daughters: Natalia, Gianna, Bianka, and Capri. Bryant, who once enthusiastically described himself to an ESPN anchor as a "girl dad,"[6] was a famously proud father to his daughters, and was closely involved in Gianna's development as a basketball player.

After retiring from the NBA in 2016, Kobe used his often revered "Mamba mentality" and turned his attention to investments. He launched his own $100 million venture fund, Bryant Stibel, which focused on tech and media industry investments. When CNBC's Carl Quintanilla asked if his legacy will be in basketball or investing 20 years from now, Kobe didn't hesitate to say "investing," adding it's more meaningful because of its lasting influence:

"Playing basketball, the focus is always winning. Winning championships. Winning championships come and go. It's going to be another team that wins another championship, another player that wins another MVP award," Bryant said. "If you really want to create something that lasts generations, you have to help inspire the next generation, right? They create something great. And then that generation will inspire the one behind them. That's when you create something forever. And that's what's most beautiful."

Kobe's Legacy & Estate

Kobe's legacy extends beyond his time on the hardwood or as venture capitalist. Accordingly, his Estate is expected to be the subject of increasing interest for his family and others. At present, it has not been confirmed if Kobe had a testamentary plan in place at the time of his tragic death.
 
It has been estimated that Kobe died with a net worth of $600 million and assets in his venture capital firm valued at more than $2 billion. Given Kobe's personality, cerebral business mind and lengthy period in the sports-media/pop culture spotlight, one could reasonably assume that he died with a comprehensive estate plan in place. Perhaps Kobe's estate plan, if one exists, involved the use of trusts or other vehicles to remove assets from his estate for federal estate tax purposes (California currently has no state estate tax).[7] However, because Kobe was so young and was still actively involved in numerous business ventures, it is quite unlikely that all of his assets had been fully realized, or indeed transferred into those protective planning vehicles. 
 
There is always a possibility of litigation in any estate. Ultimately, Kobe's untimely passing is yet another example that death is not reserved for the elderly or the sick. Instead, death is often unpredictable and outside of an individual's control. Fortunately, one aspect of death a person can control is their personal estate plan.


[1] Moshtaghian, Artemis et al. "Kobe Bryant and his daughter, Gianna, among 9 killed in a helicopter crash in California". CNN: www.cnn.com/2020/01/26/us/calabasas-helicopter-crash-trnd/index.html.
[2] https://www.latimes.com/california/story/2020-01-27/kobe-bryant-helicopter-crash-victims
[3] "Multiple NBA players change jersey numbers to honor Kobe Bryant". NBA: www.nba.com/article/2020/01/29/nba-jersey-number-changes-honor-kobe-bryant
[4] James, LeBron. www.instagram.com/p/B72NUtWA0gS/ .
[5] Verrier, Justin. "Before they were stars: Kobe Bryant". ESPN: www.espn.com/nba/playoffs/2010/columns/story?page=beforetheywerestars-kobe-100601
[6] "Anchor's touching Kobe Bryant tribute sparks #GirlDad trend". CNN: www.cnn.com/videos/us/2020/01/29/kobe-bryant-girl-dad-espn-elle-duncan-orig-llr.cnn.
[7] https://www.wealthmanagement.com/high-net-worth/kobe-bryant-and-importance-estate-planning
(iii)   MEMORY: THE 'GRAND CRITERION' IN DETERMINING TESTAMENTARY CAPACITY IN RE:  FROM ESTATE
From Estate 2019 ABQB 988 http://canlii.ca/t/j4859
 
By Kimberly Whaley
 
In this recent will challenge case, the Alberta Court of Queen's Bench reviewed the law and the role of memory and delusions when determining testamentary capacity. This case is important for two key reasons, discussed below.
 
Background
 
A father of two adult children died in 2017. He had executed a will in 2015 in which he left the entirety of his estate to his daughter. The son challenged the will on the basis that the father lacked testamentary capacity. Specifically, alleging that the father's "impaired cognitive function, paranoia and delusional beliefs influenced his testamentary dispositions." [1]
 
Since the age of 12 the son had worked in his father's business, eventually rising in the ranks and purchasing the business from his father in 2007. The father agreed to the terms of the sale transaction, including the purchase price and was advised at the time by professionals. After the sale, the father remained on good terms with the son and he would come in and socialize at the business as well.

Then the father's health began to deteriorate. He suffered three strokes over ten years with the last two in 2015 and 2016. In 2015, the father's attitude toward the son started to change. He started questioning the fairness of the sale transaction that had occurred eight years earlier. At one point, the father became "enraged" since he believed that he owned a property that the business operated out of and he believed that the son had stolen it from him. He also told his son that he was forced to sell his motorhome since he had no money, when in fact he had assets that were over $1.4 million.
 
The 2015 Will
 
In 2015, the father attended at a lawyer's office. The lawyer had not previously acted for the father. The lawyer met with the father alone for approximately 1 hour and 40 minutes. The father was able to list his children and grandchildren, as well as his assets. However, the father told the lawyer that he had "gaps in his memory" and that his "brain was shot" and that he had some strokes.[2] The father also told his lawyer that he had sold his business to his son, but, could not recall any details of the sale. He felt that the business sale may have been unfair and that he may not have received fair market value. The father wanted his daughter to be the sole beneficiary since he felt that the son benefitted greatly from the sale.
 
The Will Challenge: Testamentary Capacity
 
Justice Goss confirmed that the daughter had the legal burden with respect to the due execution, knowledge and approval of the will and testamentary capacity, aided by a rebuttable presumption. On proof that the will was duly executed after being read and understood by the father, it would be presumed that the father knew and approved of the contents of the will and had the requisite testamentary capacity.[3] However, if there were suspicious circumstances relating to capacity, the presumption would be spent and the sister would reassume the legal burden of proving testamentary capacity.
 
Justice Goss set out the criteria for assessing testamentary capacity as set out in Banks v Goodfellow[4] as restated by the Ontario Court of Appeal in Re Schwartz:
 
The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way: (1) the nature and extent of his property; (2) the persons who are the natural objects of his bounty; and (3) the testamentary provisions he is making; and he must, moreover, be capable of, (4) appreciating these factors in relation to each other; and, (5) forming an orderly desire as to the disposition of his property. [5]
 
Memory
 
Justice Goss focused on the concept of memory as it relates to testamentary capacity, noting that "memory is a critical requirement underpinning testamentary capacity."[6] Citing passages from an historical line of cases,[7] Justice Goss explained that memory is the determining factor on whether a deceased had sufficient "mental soundness." Quoting Lord Cringletie from Simpson v Gardners Trustees:
 
This may or may not injure or destroy the mind, and it appears to me that the grand criterion  by which to judge whether it was injured or destroyed is to ascertain the state of the memory. It is memory that affords us all the materials on which to exercise judgement and to arrive at a conclusion or resolution. Without memory the mind cannot act, and it is the first of the intellectual faculties which fails, where the mind is in a state of decay. [emphasis added] [8]
 
In Murphy v Lamphier, Chancellor Boyd discussed the role of memory, it being:
 
not sufficient that the testator be of memory when he makes his will, to answer familiar and usual questions, but he ought to have a disposing memory, so as to be able to make a disposition of his property with understanding and reason, and that is such a memory which the law calls sane and perfect memory... [9]
 
Testamentary incapacity can exist despite an ability to answer questions of ordinary and usual matters. Citing the Supreme Court of Canada case of Leger v Poirer,[10] Justice Goss went on to acknowledge that a "disposing mind and memory" is one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions and the like. [11]
 
Insane Delusions
 
The propounder of the will must also negate the existence of "insane delusions." This is not met where the court concludes that the deceased may have been suffering from delusions at the time of the execution of the will that could have affected his testamentary disposition,[12] in other words, where the delusion influenced the testamentary dispositions made.
 
Summarizing the case law,[13] Justice Goss concluded that insane delusions are of two kinds: the belief in things impossible; and, the belief in things possible, but so improbably, under the surrounding circumstances, that no man of sound mind would give them credit. The question is whether, considering all the facts and circumstances, it is fairly shown that the will proceeded from and on account of a deranged mind.[14] Justice Goss went on to cite from John Poyser's book, Capacity and Undue Influence,[15] that it is "fair to conclude that a court can overturn a will after finding that a delusion was present as to the character or motives of a potential beneficiary. . ."
 
Application of Law to the Facts
 
The evidence showed that around 2015 the father:
  • suddenly started incorrectly believing that he was the owner of the business property;
  • alleged that the son stole from him;
  • started speaking of a dispute regarding the ownership of assets;
  • would attend at the business premises and forget where he was or why he had come to the shop;
  • claimed he had no money, despite case and investments of about $1.4 million;
  • alleged that the son owed him more money for shares the son had purchased in 2007;
  • started calling "Elder Abuse" and accusing someone of embezzling $1 million; and,
  • told his lawyer that "his brain was shot and his memory was bad" and that he could not recall details of the sale but felt it was unfair.
Evidence regarding the father's increasing memory issues and confusion was given by others who had known the father for several years and had frequent contact with him. "Each of these individuals knew [the father] well over a long period of time. Their observations were made during face-to-face contact with [the father]. Their evidence carries significant weight." [16]
 
Justice Goss was satisfied that the son had adduced evidence that raised suspicious circumstances tending to call into question or negative [the father's] testamentary capacity. Specifically:
 
[the father's] memory issues, identified by [the father] himself, observed by a number of independent witnesses and exposed by the statements [the father] made both prior and subsequent to the date of the 2015 Will, call into question [the father's]  testamentary capacity at the time of giving instructions and executing his 2015 Will. Memory is a key determining factor as to sufficient mental soundness to instruct and execute a will as it is memory that affords us all the material on which to exercise judgment, clearly discern and discreetly judge with understanding and reason. In this case, [the father] did not appear to have a clear understanding and memory of the extent of his property at the time of giving instructions on and executing his 2015 Will. [17] [emphasis added]
 
Since suspicious circumstances were found, the onus then shifted to the sister to prove testamentary capacity.
 
Justice Goss was satisfied that the father's behaviour toward his son changed in 2015. The father became more abusive, which continued until his death. The change was noted by all of the witnesses, except the sister who did not see the father on a regular basis.
 
An example, the father felt slighted that the son was holding himself out as the founder of the business, when there was no evidence that he was. This "conclusion of [the father's] appears to exist in his own mind without foundation. There is no basis for this belief in the evidence." [18]
 
The father told his lawyer (as reflected in the will) that he did not want his son to inherit anything as he was already more than adequately provided for by the father through his benefit of the sale of the business. However, the facts were that the son purchased the business from the father and the father could not recall any of the details of the transaction:
 
The inability to recall such information would necessarily have inhibited [the father's] ability to understand or assets whether and to what extent he had benefitted his son. [The father] was having memory issues more generally. In addition, [the father] was confused about his own financial picture, repeatedly stating that he had no money, while holding assets and investments of over $1 million. [19]
 
Justice Goss ultimately concluded that:
 
"In these circumstances, considered together, it is difficult to conclude that a disorder of the mind had not poisoned his affections, perverted his sense of right, or prevented the exercise of his natural faculties. [The father's] false beliefs appear to have informed or at least influenced his testamentary disposition."
 
Considering all the facts and circumstances, Justice Goss was "satisfied that [the father] may have been suffering from delusions at the time of the execution of the will that could have affected his testamentary dispositions."
 
The sister failed to meet her burden of negating the existence of insane delusions and thus proving testamentary capacity. The will was declared invalid.
 
Takeaways
 
Again, in summary, this decision is notable for the following two primary reasons.
 
First, it traces and endorses a line of cases that stand for the proposition that a delusion as to character, or motive, can invalidate a will, with or without a concurrent delusion as to fact.  An example of the former could involve for example, "my son is dishonest."  An example of the later is, "my son stole my car."  The two statements are different, but there is authority, now buttressed in some measure bythis case, suggesting that a delusion of either category is sufficient to overturn a will.
 
Second, the decision cites earlier authority and joins a line of cases citing powers of memory as the "grand criterion" for testamentary capacity.  Without memory, there can be no valid will, as the test from Banks vs. Goodfellow draws heavily on the will-maker's ability to recall and recount his or her assets and objects of bounty.


[1] Re From Estate, 2019 ABQB 988 at para 5.
[2] Re From Estate, 2019 ABQB 988 at para 40.
[3] Vout v Hay, [1995] 2 SCR 876 at para 26.
[4] (1870) LR 5 QB 549 at 565.
[5] Re Schwartz, 1970 CanLII 32, 2 OR 61 (OntCA), aff'd [1972] SCR 150 at para 34.
[6] Re From Estate, 2019 ABQB 988 at para 123.
[7] Citing Wasylynuk v Bouma, 2018 ABQB 159 at para 127, aff'd 2019 ABCA 234, application for leave to appeal dismissed 2020 CanLII 1842 (SCC) which cited a long line of historic cases for this concept: Simpson v Gardners Trustees, (1833) 11 Ct of Sess Cas  1049 (Scottish Ct of Sess); Murphy v Lamphier, 31 OLR 287 (HC), aff'd 20 DLR 906, 32 OLR 19 (CA); re Fraser Estate (1932), 26 Alta LR 551, [1932] 3 WWR 382 (CA) at para 19.
[8] Simpson v Gardners Trustees, (1833) 11 Ct of Sess Cas 1049 (Scottish Ct of Sess) at 1051-52.
[9] Re From Estate, 2019 ABQB 988 at para 124 citing Murphy v Lamphier at para 111 [emphasis added].
[10] [1944] SCR 152 at 161.
[11] Re From Estate, 2019 ABQB 988 at para 130
[12] Stekar v Wilcox, 2017 ONCA 1010 at para 12 & 13.
[13] Citing Banton v Banton, 1998 CanLII 14926 at para 32-33 & 35.
[14] Re From Estate, 2019 ABQB 988 at para 134.
[15] John E.S. Poyser, Capacity and Undue Influence, (Toronto: Thomson Reuters, 2014) at 164,  now updated: John E.S. Poyser, Capacity and Undue Influence, 2nd Ed (Toronto: Thomson Reuters, 2019)
[16] Re From Estate, 2019 ABQB 988 at para 157.
[17] Re From Estate, 2019 ABQB 988 at para 158.
[18] Re From Estate, 2019 ABQB 988 at para 170.
[19] Re From Estate, 2019 ABQB 988 at para 171.

IV. UPCOMING EVENTS
Ontario Bar Association Elder Law Passport Series Program
Capacity for Lawyers: Elder and Real Estate Matters
February 26, 2020
Speaker: Matthew Rendely
 
Ontario Bar Association Elder Law Passport Series Program
Capacity for Lawyers: Elder and Corporate Client Matters
March 18, 2020
Speaker: Kimberly Whaley
http://www.cbapd.org/details_en.aspx?id=ON_ON20ELD02T 

Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
March 27, 2020
Speaker: Matthew Rendely and Bryan Gilmartin

Osgoode Professional Development
Passing of Accounts & Fiduciary Accounting
April 7, 2020
Chair: Kimberly Whaley

Cambridge Forum, Estate Planning and Litigation Forum
Elder Abuse - Civil and Criminal Remedies
Speaker: Kimberly Whaley
April 26-28, 2020

Osgoode Professional Development
The Osgoode Intensive Program in Wills and Estates - Powers of Attorney and Guardianship: Non-contentious and Contentious Matters
April 28, 2020
Speaker: Kimberly Whaley

Legal Education Society of Alberta: 53rd Annual Refresher: Wills & Estates (Lake Louise)
Capacity Tests for Various Judicial Acts
May 2-4, 2020
Speaker: Kimberly Whaley

Law Society of Ontario, The Six-Minute Estates Lawyer 2020
Raiders of the Lost Will, Proving Due Execution
May 12, 2020             
Speaker: Kimberly Whaley
 
Osgoode Professional Development, The Osgoode Certificate in Elder Law  2020
Long Term Care Homes, Retirement Homes, and Community Based Services & Homecare: Navigating the System, Understanding the Legal Rules
May 13, 2020

Ontario Bar Association, Elder Law Section Program
Your Comprehensive Guide to Section 3 Counsel Under the Substitute Decisions Act
May 14, 2020
Chairs: Kimberly Whaley and Alex Procope
 
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
May 15, 2020
Speaker: Lua Ebrahimi and Henry Howe

B'Nai Brith
June 2, 2020
Kimberly Whaley
 
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
October 9, 2020
Speaker: Mike Marra and Matthew Rendely
 

GTA Accountants Network

Trust and Estates For Financial Professionals
October 20, 2020
Speaker: Kimberly Whaley

Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
December 11, 2020
Speaker: Daniel Paperny and Bryan Gilmartin

V. IN CASE YOU MISSED IT - RECENT BLOG POSTS
No Limitation Period for Declaratory Relief

Comments from Kim's Christmas Read List

'Death-Bed Will' Remains a Will Until Proven Other

2020 Brings Small Relief for Estates in Ontario

Muth Estate: Executor Sought and Denied Indemnity from Beneficiaries for Income Tax Liability of Estate

Costs or Damages: What is an Estate Trustees Best Remedy for Defending Meritless Litigation

It's Not a Suggestion ... It's an Order! - Jensen v. Jensen Estate

Will Drafting - Dot the I's and Cross the T's: Re Vaudrey

Help Toronto Police Protect Vulnerable Persons

When Fiduciary Breaches Amount to Criminal Offenses

Is a Surviving Spouse's Pension an Asset of the Estate for the Purpose of Determining Dependant Support: Earl v. McAllister

Common Sense from the Court: Schroder v. Estate of Freebold-Schroder

Alberta Estate Litigation Early Intervention Pilot Project

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