WEL Newsletter, Vol.9 No.8, November 2019
Dear ,
 
Its November, snow came early and the days are dark. Embrace the winter and the cold and hopefully, sunny, warmer days will arrive in no time. This fall we have seen the release of some exciting cases like Gefen v. Gaertner, and Slover v. Rellinger's voir dire decision and, recently the main decision (review within). We have also seen some positive steps to legislative change in Saskatchewan concerning predatory marriages, (Check out our recent blog posts by Sareh Ebrahimi and Albert Oosterhoff). With any luck, we will see similar changes in Ontario as we keep trying in our efforts to move for statutory change. Enjoy your read!
 
Kim

 

I. WEL NEWS

1. LAW SOCIETY OF ONTARIO, 22ND ESTATES AND TRUSTS SUMMIT (DAY ONE) OCTOBER 16, 2019

 
On October 16, 2019 Kimberly Whaley spoke at the Law Society of Ontario's 22nd Estates and Trusts Summit (day one) on 'What You Need to Know about Predatory Marriages'.

2. TORONTO POLICE SEMINAR, ELDER ABUSE, NOVEMBER 1, 2019

 
Matthew Rendely and Bryan Gilmartin presented at the Toronto Police College on ELDER ABUSE: Civil & Criminal Remedies.

3. THE LAWYERS DAILY

 

Kimberly Whaley's article 'Proprietary Estoppel: Promises Made, Promises Broken' was published in the Lawyer's Daily on October 30, 2019. 

Read article

 

Kimberly Whaley's article 'Challenge to Authenticity of Signatures on Will' was published in the Lawyer's Daily on November 5, 2019.  Read article
 
Matthew Rendely's article 'November 'Make a Will Month' in Ontario' was published in the Lawyer's Daily on November 25, 2019.  Read article

4. STEP CANADA CONNECTION, NOVEMBER 2019


Kimberly Whaley's article "BC Court: Capacity and Intention to Gift Found, Older Adult Experiencing 'Seller's Remorse'" was published in STEP Canada Connection, Toronto Branch Newsletter, November 2019, Vol.7 No.3

5. SUMMIT ON AGING: KEEPING ME SAFE - CAPACITY, RISK AND MEDICAL ASSISTANCE IN DYING (MAID) - PETERBOROUGH, ONTARIO, NOVEMBER 6, 2019

 

On November 6, 2019 Kimberly Whaley was invited to present at the Peterborough Summit on Aging for Healthcare & Law Professionals working with Senior's at Risk. Kim Whaley spoke with Dr. Shulman on: Demographics and Elder Abuse Uncovered and Understood. Participated on a panel-ELDER ABUSE case-based analysis and responses: Karin Wells moderated, legal and medical perspectives from Kim Whaley, Dr. Ken Shulman, Dr. Jennifer Ingram and Seabourne Geale-Barker, and LIVING AT RISK case-based analysis and responses: Karin Wells moderated, legal and medical perspectives from Kim Whaley, Dr. Ken Shulman, Dr. Oleg Veselskiy and Allan McCracken.

 

Link to presentation

6. 2019 ISAAC PITBLADO LECTURES, WINNIPEG, MANITOBA, NOVEMBER 8, FORT GARRY PLACE CONFERENCE CENTRE, GRAND BALLROOM

 
On November 8, 2019 Professor Albert Oosterhoff, John Poyser and Kimberly Whaley spoke at the 2019 Pitblado Lectures.
 
Kimberly Whaley spoke on Predatory Marriages - A Cross-Country View

 
Professor Albert Oosterhoff spoke on Testamentary Capacity - An Update.

 
John Poyser spoke on Recording Will Instructions.

7. CANADIAN CENTRE FOR ELDER LAW AND THE CONTINUING LEGAL EDUCATION SOCIETY OF BRITISH COLUMBIA, CANADIAN ELDER LAW CONFERENCE, VANCOUVER, BRITISH COLUMBIA, NOVEMBER 14-15, 2019

 
Kim spoke at the Canadian Centre for Elder Law and the Continuing Legal Education Society of British Columbia's Canadian Elder Law Conference 2019 in BC on November 14th, 2019. Kimberly spoke on Elder Abuse: Civil & Criminal Remedies Cross-Provincially
 
8. ONTARIO BAR ASSOCIATION: ALTERNATIVE DISPUTE RESOLUTION LAW PROGRAM: AHEAD OF THE CURVE: ESTABLISHING A MEDIATION PRACTICE IN HIGH GROWTH AREAS, NOVEMBER 19, 2019
 
On November 19th Kimberly Whaley presented on a panel chaired by Bernard Morrow with Stuart Rudner, and Dr. Martha Simmons at the OBA-ADR program, 'Ahead of the Curve: Establishing a Mediation Practice in High Growth Areas.'


L-R: Bernard Morrow, Kimberly Whaley, Stuart Rudner and Dr. Martha Simmons

9. ONTARIO BAR ASSOCIATION: ETHICS, CIVILITY & PROFESSIONAL RESPONSIBILITY IN THE COURTROOM, MEDIATION AND BEYOND, NOVEMBER 22, 2019

 

Kimberly Whaley presented at the OBA's Civil Litigation and Insurance Law CPD program 'Ethics, Civility and Professional Responsibility in the Courtroom, Mediation and Beyond' on November 22, 2019. Kimberly presented with Dr. Richard Shulman on 'Litigants with Capacity Issues.'

II. WEL SHOUT OUTS
WEL congratulates our friend and colleague Ian Hull of Hull & Hull LLP for being nominated to be a Fellow of the American College of Trial Lawyers. It is by invitation only fellowship at one of the most prestigious legal organisations in North America.

III. LAW REVIEW
(i) SLOVER v. RELLINGER - FAMILY CONFLICT AND THE EVER-CHANGING ESTATE PLAN
Slover v. Rellinger, 2019 ONSC 6497
 
By Henry Howe
 
Honouring a testator's wishes is of fundamental importance in estate litigation, but this task is often complicated by the circumstances of the testator's life. The court is, after all, ultimately asked to examine the thoughts of someone who is no longer able to explain them. A person's opinions and values can change as they age, but when has a testator genuinely changed their mind, and when is the change a result of undue influence or a loss of capacity? Difficult family dynamics, particularly when the testator is vulnerable, can easily complicate this question further.
 
Slover v. Rellinger was a dispute between two siblings over their late mother's estate. Sanfilippo J. carefully examined a complex series of estate planning decisions, to determine which of the testator's many, and sometimes inconsistent, documents were valid. The lengthy trial decision canvassed existing caselaw on testamentary capacity and undue influence, and provided a thorough demonstration of the principles judges must rely on in this challenging area of law.
 
 
Even before the trial decision, this case was noteworthy for its voir dire on the admissibility of retrospective capacity assessment. Joan had retained Dr. Kenneth Shulman, who had never examined Gertrude, to provide this retrospective expert opinion. Sanfilippo J. rejected James' argument that a retrospective assessment was based on "novel science," and ruled that Dr. Shulman's expert opinion was admissible, noting that "many types of medical and psychiatric opinions offered in trials are retrospective in nature". At trial, however, Sanfilippo J. rejected Dr. Shulman's opinion that Gertrude had suffered from delusions, and found that it was "based on presumed facts that I do not accept".
 
Background
 
The deceased, Gertrude Rellinger ("Gertrude"), was a wealthy investor who died in 2016. She was described as "autocratic and strong-willed, dominant and controlling". At trial, witnesses "recalled Gertrude's philosophy... foisted on Gertrude as if life-defining, that those who treated her well would be rewarded and those who treated her poorly would be punished".
 
Gertrude had two adult children: Joan Slover ("Joan") and James Rellinger ("James"). Until 2005, Gertrude gifted money to her children in equal amounts, meticulously documented these gifts in two ledgers, and gave every indication that she intended to leave 50% of her estate to each of them.
 
In 2008, Gertrude executed a new Will that removed Joan as an Estate Trustee, leaving only James. The Will still provided equal bequests, except in that it forgave a loan that Gertrude had given to James, with no equivalent gift to Joan. The apparent reason for this move toward unequal gifts was that Gertrude's relationship with Joan had worsened since 2005. Gertrude's health had declined, she had suffered a fall in Joan's home, and she had moved into a care facility that she disliked "with Joan's input". Gertrude appeared to lose trust in Joan, and made various allegations about Joan's management of her property.
 
In 2013, after Gertrude's relationship with Joan had deteriorated further, she changed her Will again. This time, she left 75% to James and 25% to Joan. Her lawyers obtained a capacity assessment that found that she "did not have a logical thought process," and that her opinion of Joan was inconsistent with the care that Joan provided to her. Despite this opinion, the lawyers concluded that she did have testamentary capacity.
 
After the execution of the 2013 Will, James took significant steps to involve himself in Gertrude's estate planning. He replaced her longtime lawyers, changed her banking arrangements, and - through a team of professionals that he had retained - presented her with several documents ("the Post-August 2013 Documents") to execute in 2013 and 2014. These documents had wide-ranging and sometimes contradictory effects, which notably included: transferring Gertrude's assets into joint tenancy with James with right of survivorship, disinheriting Joan, and granting James discretion over whether to transfer any of Gertrude's estate to Joan. During this span, James also facilitated Gertrude's move from Waterloo to a facility in Toronto, and restricted Joan's access to Gertrude.
 
After Gertrude's death, James sought to keep all of Gertrude's wealth, while Joan sought to obtain half of it. Sanfilippo J. identified two main issues: whether the Post-August 2013 documents were valid, and, if not, whether the 2013 Will was valid.
 
Decision
 
Sanfilippo J. ultimately ruled that the May 2013 Will was valid, as Joan had not proven incapacity or undue influence at that time. However, the Post-August 2013 Documents were found to have resulted from James' undue influence, and therefore to be invalid.
           
Testamentary Capacity
 
Sanfilippo J. first examined the burden of proof in a capacity challenge. The party propounding a Will has an onus to establish due execution of the Will. By doing so, that party creates a rebuttable presumption of capacity, [1 unless the other party demonstrates suspicious circumstances.[2] Sanfilippo J. found that the questions surrounding Gertrude's mental and emotional health prior to the execution of the 2013 Will, as well as the capacity assessment from that time, constituted suspicious circumstances, and imposed an onus of James to prove capacity.
 
Joan's only challenge to Getrude's capacity was that Gertrude had been influenced by "insane delusions," based on her belief that Joan was an "uncaring, unkind, inattentive daughter who was untrustworthy". Sanfilippo J. accepted the experts' characterization of a delusion as "a fixed false belief that is out of keeping with one's educational, cultural and religious background, that is incapable of being altered when shown to be unfounded". The caselaw further indicated that a delusion can cause testamentary incapacity if it has "taken over the person's will-making," and that "[a]nger or resentment based on a factual basis that exists is not enough".
 
Gertrude's beliefs, even if mistaken in some parts, were grounded in facts. Her remarks about Joan not having visited, and about Joan's management of her property, contained at least some grains of truth. She truly had experienced problems under Joan's care, and at the facility that Joan had influenced her to move into.
 
Sanfilippo J. ruled that James had proven Gertrude's testamentary capacity. Gertrude's beliefs about Joan were "tenuous and perhaps unfair," but were not delusions. A testator can make mistakes, and behave unreasonably, without being incapable.
 
Undue Influence
 
Sanfilippo J. first noted that although an inter vivos gift from a parent to an adult child is subject to a presumption of undue influence, this presumption does not apply to a testamentary gift, even when there are suspicious circumstances.[3] To prove undue influence, Joan needed to prove that James had exerted an influence "so great and overpowering that the document reflects the will of [James] and not of [Gertrude]". [4]
 
Sanfilippo J. drew a list indicators of undue influence from Gironda[5] and Tate.[6] This list consisted of: physical or emotional dependence, social isolation, recent family conflict, recent bereavement, a new Will inconsistent with prior Wills, testamentary changes simultaneous with changes to other legal documents, substantial pre-death transfers of wealth, using a lawyer previously unknown to the testator and chosen by the alleged influencer, the alleged influencer communicating instructions to the lawyer, and the alleged influencer receiving a draft of the document before the testator.
 
Gertrude had made the 2013 Will on her own initiative, without input from James, and with help from her longtime lawyer. The Post-August 2013 documents, however, had been prepared by professionals retained by James, and seemingly on his instructions. Gertrude had experienced family conflict with Joan, had become socially isolated - especially after moving to Toronto - and had become dependent on James. James had restricted Joan's access to Gertrude. He had received large transfers of wealth from Gertrude. The dispositions in the Post-August 2013 documents had inconsistent effects, and it was not always clear that Gertrude understood this.
 
Sanfilippo J. did not find undue influence in the making of the 2013 Will, but did find it in the making of the various subsequent documents.


[1] Vout v. Hay, [1995] 2 S.C.R. 876, 1995 CanLII 105 (SCC).
[2] Ibid; and Stekar v. Wilcox, 2017 ONCA 1010.
[3] Banton v. Banton, 1998 CanLII 14926 (ON SC).
[4] Ibid.
[5] Gironda v. Gironda, 2013 ONSC 4133.
[6] Tate v. Gueguegirre, 2015 ONSC 844.
(ii)   THE PRESUMPTION OF LIFE HAS ITS LIMITS - SUPREME COURT OF CANADA HOLDS THAT PENSION PAYMENTS MADE TO DECEASED ABSENTEE ARE TO BE RETURNED
By: Bryan Gilmartin
 
Introduction

In Threlfall v. Carleton University,[1] the Supreme Court of Canada held that an employer may recover pension payments made to a recipient who was presumed alive, but was in fact dead.
 
Facts
 
On September 10, 2007, George Roseme ("Mr. Roseme"), a political science professor who had retired from Carleton University (the "University"), decided to go for a walk near his home in La Pêche Quebec and never returned. He was 77 years old and in the early stages of Alzheimer's disease at the time. Despite the best efforts of family, friends and first responders, he could not be found.
 
Prior to his retirement, Mr. Roseme opted to draw a "single life pension" under the Carleton University Retirement Plan (the "retirement plan"). Notably, the retirement plan stated the following: "I am aware that on my death, my pension will cease and no payments of any kind will be due form the plan to my beneficiaries, heirs or estate, even if my death occurs immediately following the date of my first pension payment."
 
Mr. Roseme was declared an absentee in the eyes of the Civil Code of Quebec ("C.C.Q."). Pursuant to Article 85 of the C.C.Q., absentees are presumed to be alive for seven years unless proof of their death is made before then. It was on this basis that the University, as Mr. Roseme's former employer, was required to pay Mr. Roseme's pension payments pursuant to the retirement plan.
 
Upon his disappearance, Lynne Threlfall ("Ms. Threlfall"), Mr. Roseme's former spouse, brought a motion in the Quebec Superior Court for the institution of tutorship to the absentee.[2] She was subsequently appointed as tutor to Mr. Roseme.
 
Mr. Roseme's remains were found approximately six years after his disappearance on his neighbour's property. It was determined that his date of death was September 11, 2007 - one day after his disappearance. The University commenced proceedings against Ms. Threlfall personally and in her capacity as tutor, seeking reimbursement of $497,332.64, which was the amount paid to Mr. Roseme between September 11, 2007, and the date of the last payment in 2013.
 
The Court's Analysis
 
The issue before the court was centered on two interpretations of the Absence Regime and the presumption of life as set out in Article 85 of the C.C.Q.
 
The fundamental question was whether the rebuttal of the presumption of life retroactively extinguished Mr. Roseme's entitlement to the pension payments made while he was an absentee (the "retroactive approach"), or whether the rebuttal simply ended the continued application of the presumption on a go-forward basis thus having no effect on the payments made by the University while Mr. Roseme was presumed to be alive (the "prospective approach")?
 
In answering this question, the court considered the plain meaning of Article 85 as well as the nature of the presumption of life, its purpose and objectives and the respective consequences of the two interpretations.
 
The C.C.Q.'s Presumption of Life
 
Pursuant to Article 85 of the C.C.Q., An absentee is presumed to be alive for seven years. During this time, through his or her tutor (or administrator of property), an absentee remains liable to perform obligations and continues to accrue rights.
 
The majority, in this case, held that the presumption of life, in essence, is a presumption as to the existence of a right. Accordingly, if there is proof that the right does not exist then the presumption must yield.
 
"In our view, the presumption of life in the C.C.Q. is nothing more than a simple presumption, and simple presumptions are not permanent sources of right [...] When the presumption is rebutted, it falls away and is replaced with reality - the reality being that the absentee has been dead since his or her true date of death. On this basis, Mr. Roseme's death rebutted and superseded the presumption."
 
Furthermore, the court discussed the two fundamental purposes served by the presumption of life. On the one hand, it serves to inject stability into an uncertain state of affairs while preserving the absentee's interest in case he or she returns. Ultimately the court held while a prospective approach would preserve the absentee's interests, it would also transform the presumption into a source of substantive rights to generate wealth for the absentee's succession. In this case, it would permit in Ms. Threlfall, as Mr. Roseme's sole heir, to walk away with an increased inheritance.
 
Though the University was legally obligated to make the pension payments while Mr. Roseme was absent, the court held that it was entitled to restitution on the basis that the pension payments were never owed to Mr. Roseme in the first place.


[1] Threlfall v. Carleton University¸2019 SCC 50.
[2] The role of the tutor is to exercise the rights and administer the property of the person who has disappeared.

IV. UPCOMING EVENTS
Toronto Police Seminar
Civil and Criminal Remedies, Elder Abuse
December 6, 2019
Speaker: Alex Swabuk and Sareh (Lua) Ebrahimi

Ontario Bar Association Elder Law Passport Series Program
Capacity for Lawyers: Elder and Family Law Matters
December 10, 2019
Speaker: Michael Marra

Institute 2020 Elder Law Section Program
Rights and Limitations on an Attorney Under a Power of Attorney
February 2020
Chair: Kimberly Whaley
Speakers: Albert Oosterhoff and John Poyser

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 

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

Osgoode Professional Development
The Osgoode Program in Wills and Estates
April 28, 2020
Speaker: Kimberly Whaley

V. IN CASE YOU MISSED IT - RECENT BLOG POSTS
SH v DH: Can an Ex-Spouse Withdraw Consent to an In Vitro Embryo's Use?

Certificate of Pending Litigation Not a Slam Dunk


But We Never Had 'The Talk' .... - The case of Derakshan v. Narula

Misleading Evidence - Not Enough to Deny Costs to Successful Party in Estate Case: Birtzu v. McCron

Pension Benefits Divided on Separation Cannot be Assigned to Estate

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