WEL NEWSLETTER January 2021, Vol. 10, No. 10

Polar Vortex are the words that started to overtake my psychology on January 11th. By the time this newsletter is released, this vortex will be upon us! Apparently, the polar vortex resides over the poles, but stratospheric warming is responsible for it coming our way. Now, I try not to let myself seriously entertain superstitious moments of credulous belief….like for example, just when I said, “I think I can actually get through this pandemic winter because the weather has been quite nice”…and then, like a moment later, CityNews Alert…. “A Polar Vortex will soon put an end to our mild winter.” 

I think at times, it could all just be called the, kim effect. You know, like the seven years of bad luck that comes from breaking a mirror, or, that bad things comes in three’s (in my case thirty-threes), or the walking under a ladder….which incidentally, I did in December when a local restaurateur occupied the whole of the sidewalk with a ladder as she was single-handily placing festive decorations above the sidewalk and she dropped her staple gun just as I passed, which btw skimmed the entire length of my arm on its way down…… now, the upside of this event could well be that it did not hit me on the head, or, even that when it landed beside my foot, it did not fire a staple into my limb. I have to say, I am naturally striving in life to see the upside and so I shall persevere on this continuum.

Back to the point now, I tried to embrace the winter (not able to go to Hawaii as apparently 4,000 other Canadians did in the month of December) and even bought new skis for Sammi and I for Christmas, even picked them up the day we learned the ski hills were to be shut down at weeks end. See what I mean?

My WEL colleagues often laugh at me on the IT (information technology) front, or rather, lets say they give me the raised eyebrow gesture, without the requirement for speech, signifying-its you Kim/its me (hence, the kim effect) and each having come to the astute conclusion that I carry with me my own electromagnetic field. In my case, not harmful to their health, but instead the health and working efficacy of every single powered device within my vector field!

I could fill you with similar stories infinitum on the so called kim effect, but really what I want to impart is, though the Polar Vortex may well be upon us, the pandemic ravaging all of us in some manner or another, and you too, may similarly be suffering from your own spell of bad luck, nevertheless, we can still engage great things, great people, great events, great books, great hobbies, great shows, great goals, great challenges, great work and find some inspiration and solace in doing so. I don’t dare mention any such inspiration of mine that I might have engaged in, at all, for fear that the kim effect will overtake and jinx them much like the weather!
This is my attempt at providing you with some light comic relief (as real as it however may be for me!) in a new year already consumed by real challenge felt everywhere by everyone. Continue to be resilient, focus on the end goal, be kind, be part of the solution, and work like mad to keep your spirits high-we WILL get through all of this……. eventually!
Our continued gratitude for your support and confidence in our team. We look forward to our continued relationships and our new ones.
Happy New Year!
Enjoy the Read,

Paul Murphy, joined our litigation team on January 4, 2021 and is ready for business.

Learn more about Paul:

Rennie Shaikh, law clerk, joined our team on January 4, 2021.

Rennie Shaikh’s contact details:

Kimberly Whaley was honoured to have participated as a panelist in a discussion of “Legal Entrepreneurship” and “Dealing with the Boys’ Club”, on January 8, 2021. The program was moderated by Sobiga Kamalakaran, with panelists Raquiya Austin (Toronto, ON), currently in-house counsel at Ornge (a non-profit charitable organization which provides air ambulance and associated ground transportation service for the province of Ontario), Deepa Tailor (Mississauga, ON), Founder and Managing Director at Tailor Law Professional Corporation, Siobhan Lennox (Vancouver, BC) M&A and Corporate Law Associate at O'Neil Law LLP, and, Susana Mijares Peña (Toronto, ON), Founder of The Six Law Group.
Kimberly Whaley and Craig Vander Zee presented on “Oral Advocacy in Motions,” at this Advocates Society Program chaired by Clare Burns and Justin de Vries.

Kimberly Whaley will be presenting at the Toronto Lawyers Association, Serious Illness Planning, on January 28, 2021, as a panelist with Dr. Daren Heyland and Ian Hull on the topic: “To Live and Die Well, You Need to Plan Well” and “What has COVID-19 Taught Us.” This program is chaired by Kira Domratchev at Hull & Hull.

Kimberly Whaley completed the Foundations in Judicial Competencies Certificate Program and received a Certificate of Completion on December 21, 2020 from the Ontario Bar Association.
Kimberly Whaley was chosen as the winner of the 2021 Corporate International Magazine Global Award in the category: Estate Litigation Lawyer of the Year in Canada – 2021.
(i) Once your matter has been given a date, the court is requesting only one single Zoom invite with the Sync.com attached for the court. And where possible, file a counsel slip at the same time;

(ii) On your motions, when filing compendiums (of only the materials necessary to your motion), ensure you hyperlink all of your materials;

(iii) If your matter is urgent, the court will find a way to have your matter heard. That said, respectfully comply with the request not to send your Zoom invite directly to your judge outside of business hours which includes weekends;

(iv) If there are materials that need to be Sealed, ensure that any such materials are sent by a separate email and not uploaded to Sync.com;

(v) Please ensure your facta do not exceed 25 pagesbe forewarned that if you exceed 25 pages, that your materials may not be read at all, and the likelihood is that your matter will be rescheduled without priority. If your facta must exceed 25 pages, you are strictly required to obtain leave first. 
Bosco Mascarenhas has indicated that the backlog for processing Applications for Certificates of Appointment have largely been addressed, and the Estates Office is now dealing with January applications. The review and corrections from December are also now being dealt with and will be brought current in the next few weeks.
Daniel Paperny’s article: The UTRA: Protecting Society’s Vulnerable from “Unconscionable Transactions”, was published in the STEP Toronto Connection Newsletter January 18, 2021, Volume 8, No. 4.

We are pleased to share with you our Elder Law Video. Please feel free to share it with your colleagues.

This video is LSO accredited and contains 15 minutes of Professionalism Content, eligible for up to 0.75 Substantive Hours

The video is an overview of our book, Whaley Estate Litigation Partners on Elder Law which is available for PDF download: http://welpartners.com/resources/WEL-on-elder-law.pdf 
We would be happy to send you a hard copy of our book if you wish (while supplies last). Please contact Blossom Pangowish, blossom@welpartners.com to make arrangements. 

Visit our website at https://welpartners.com/resources/publications to view our other published books.
WEL congratulates Simon Coakeley who has been named Chief Executive Officer of the CBA, following a robust and extensive process aided by a leading executive search firm specializing in the identification of diverse candidates. Mr. Coakeley’s appointment will take effect on Feb. 15th, and at that time, he will replace Steve Pengelly, who has been the Interim CEO since July 2020. Mr. Pengelly has agreed to stay on for a period of transition following Mr. Coakeley’s appointment taking effect, so as to ensure an orderly and effective transfer of responsibilities.
WEL congratulates Steeves Bujold, the CBA Board member from Quebec, who has been acclaimed to the position of Vice President for 2021-2022. Mr. Bujold has been an active member of the CBA since 2001. He has been a member of the CBA Board of Directors from Quebec since September 2019, and most recently chaired the CBA, CEO Selection Committee and the Equality Subcommittee. He is currently Chair of the Policy Committee. He will assume the vice-presidential role in September 2021, when Vice President Stephen Rotstein becomes President.
WEL congratulates Rachel Blumenfeld of Aird & Berlis LLP, on being elected as a fellow member of The American College of Trust and Estate Counsel (ACTEC).
(i) Yet Another May-December Marriage
By Albert H. Oosterhoff

Tanti v. Tanti [1] is the latest in what has become a long list of cases involving a marriage in which one spouse is much younger than the other. Typically, a child of the older spouse seeks to have the marriage set aside on the ground that the older spouse lacked capacity to marry. In the process, he makes allegations of predation and “gold-digging”. However, Tanti was not a predatory marriage case.

Paul Tanti was an elderly man, who married his much younger live-in companion, Sharon Joseph. They met in 2014 when Paul went to a community organization looking for volunteer assistance with small jobs at his house. Sharon came to help him with some exterior painting. The two became friends, visited tourist sites together and spent time with family and friends. By 2017 they began to refer each other as “companions” when speaking with family, friends, and professionals. In early 2018 Sharon moved into Paul’s house when he expressed a desire for a more intimate relationship. Eventually Paul asked Sharon to marry him when he was 89 years old. Sharon was hesitant initially but later agreed and they were married in July 2019. Witnesses who attended the ceremony testified that Paul was able to answer the minister’s questions clearly and that Paul let them know that he loved Sharon and was happy to be married to her. A photo confirmed the couple’s happiness.

Paul’s son, Raymond came to the house in late July 2019. He disliked Sharon and when he learnt of the marriage he became verbally abusive. He left after the police were called, but he returned again the next day and was still abusive. He left again after the police were called. On the same day Paul and Sharon attended at the office of a solicitor, who met with Paul alone and took instructions about drafting powers of attorney in favour of Sharon. The solicitor determined that Paul had capacity to grant the powers.

Two weeks after the marriage Sharon left for Grenada on a planned two-week trip to visit her extended family. When Raymond learnt that Sharon was away, he met with Paul’s banker who told him that Sharon was now Paul’s attorney,[2] so that he could no longer access his father’s accounts.

Paul then took his father for an urgent assessment by a gerontologist. She found that Paul’s cognitive reasoning was impaired and that he now lacked the capacity to manage his financial and medical affairs. She did not give an opinion on Paul’s capacity to marry, but referred him to another specialist for a second opinion. That gerontologist found that Paul lacked capacity to grant a power of attorney, but did not opine about his capacity to marry. Later this gerontologist gave a retrospective opinion that Paul lacked capacity to marry because he told both gerontologists that he could not recall the marriage. Raymond then got a third opinion from another gerontologist, who opined that Paul lacked capacity to manage his property. Later, in a retrospective opinion, he concluded that Paul probably lacked capacity to marry, since he did not seem to recollect the marriage. The first gerontologist refused to provide a retrospective opinion about Paul’s capacity to marry.

On August 20 2019, Raymond moved Paul to his home out of Toronto and a week later, while Sharon was still out of the country, he brought an application for:

(a) a declaration that Paul was incapable of managing his property and his personal care;

(b) guardianship of Paul and his property;

(c) custody of Paul;

(d) an order permitting him to lease and sell Paul’s house;

(e) an order freezing all bank accounts held jointly by Paul and Sharon; and

(f) an order suspending the power of attorney granted by Paul to Sharon.

In support of his application Raymond alleged that Paul had “become subject to manipulation and perhaps loss and misappropriation of funds at the hands of a hired caregiver, Sharon Joseph”. Raymond also changed the locks on Paul’s house.

Justice Harris granted Raymond’s application in September 2019. After Sharon returned to Canada, she brought a motion to set that order aside. Meanwhile, a section 3 counsel was appointed for Paul and Sharon was added to the application as a party. Paul’s counsel did not take a position on the validity of the marriage, but everyone agreed that by this time Paul lacked capacity to instruct counsel or otherwise to participate in the application.

Mandhane J. presided over a video conference hearing in November and December 2020 to determine the validity of the marriage. She found that there was “absolutely no evidence” that Sharon was a hired caregiver for Paul. In fact, she was employed by a local school board. Nor was there any evidence that supported Raymond’s allegation that Sharon manipulated Paul into entering into a relationship with her. Further, she ever abused or mistreated Paul. And she never stole from Paul or misappropriated his funds.

In discussing the law on capacity to marry, Justice Mandhane referred to some of the recent cases on the matter, as well as other authority.[3] Her Honour also repeated the well-known principles that the test for capacity to marry is a simple one and that understanding the marriage contract does not require a high degree of intelligence. She also recognized that capacity for various purposes is decision, time, and situation specific.

Her Honour admitted the opinions of the three gerontologists, but concluded that they did not carry much weight, because none provided a contemporaneous opinion on Paul’s capacity to marry and their assessments of his capacity to manage his property were largely irrelevant to the issue of capacity to marry. Moreover, she did not give the retrospective opinion of two of the three gerontologists that Paul probably lacked capacity to marry much weight.

Justice Mandhane concluded that Paul had the requisite capacity to marry based on the following factors, which she derived from direct evidence about Paul’s capacity:

(a) the couple’s relationship before the marriage;
(b) Paul’s cognitive ability leading up to and immediately after the marriage;
(c) Paul’s understanding of the marriage ceremony and vows, and the obligations it created; and
(d) Paul’s interactions with professionals contemporaneous with the marriage.

The parties were in a long-term relationship that developed and deepened over a five-year period. Raymond’s allegations of predation on the part of Sharon were not proved. Paul’s decision to marry Sharon was rational and the fact that Sharon stood to benefit financially from the relationship was irrelevant in the absence of evidence of duress. Further, there was no cogent evidence that Paul lacked the necessary cognitive ability to make decisions about his daily affairs and living arrangement. The evidence showed that Paul understood the marriage ceremony, his vows, and their implications. On the other hand, the evidence of the gerontologists was largely irrelevant. In contrast the evidence of the solicitor to whom Paul gave instructions about powers of attorney in favour of Sharon within four days of the marriage was cogent and proved that Paul was capable of instructing counsel and understood the consequences of his decision to grant the powers of attorney for property and personal care.

Her Honour discounted Sharon’s claim for costs because her approach to the litigation unreasonably increased her costs. However, she did award Sharon full-indemnity costs against Raymond because of his egregious conduct. Her Honour left open the possibility of costs against Raymond’s counsel personally if Sharon wished to pursue that claim.

While the facts did not disclose evidence of predation and I believe that Justice Mandhane correctly found on the evidence that Paul had capacity to marry, this case, like many before it, does highlight the fragility of the capacity to marry “test”. In other contexts, I and others have argued that the test makes it too easy to validate a marriage and this is problematic in modern society in which surviving spouses are granted extensive property rights over the estates of the first spouse to die.[4] I do not question the propriety of such rights, but they can easily be abused by the surviving spouse if she is a predator. For that reason, I drafted legislation that seeks to introduce a stricter test, to abolish the statutory rule that automatically revokes a will when the testator marries, and to curb predatory marriages. I disseminated the draft among a number of law reform bodies and other interested parties. Because various persons continued to express interest in it, I attached it as a Schedule to a blog I posted in 2019 and refer them to that blog.[5]


[1] 2020 ONSC 8063.
[2]The reasons for judgment say that she was Paul’s “power of attorney”, thereby repeating the egregious solecism that has become endemic in the estates world. A power of attorney is a piece of paper in which the grantor appoints a person as his attorney. To call the attorney the grantor’s “power of attorney”, as so many unfortunately do, actually says that she is but a piece of paper!
[3]E.g., Hunt v. Worrod, 2017 ONSC 7397; Ross-Scott v. Potvin, 2014 BCSC 453; and Kimberly Whaley, et al., Capacity to Marry and the Estate Plan (Aurora, Ont., Canada Law Book, 2010). It is somewhat surprising that she did not refer one of the first cases on this kind of marriage, Banton v. Banton (1998), 164 D.L.R. (4th) 176, 1998 CarswellOnt 3423 additional reasons (1998), 164 D.L.R. (4th) 176, 1998 CarswellOnt 4688 (Gen. Div.), in which Cullity J. gave an exhaustive discussion of the test for capacity to marry. Nor did her Honour refer to other important recent cases, such as Devore-Thompson v. Poulain, 2017 BCSC 1289, additional reasons 2018 BCSC 97.
[4] See, e.g., Albert H. Oosterhoff, “Consequences of a January/December Marriage: A Cautionary Tale” (1999), 19 E.T.P.J. 261; Albert H. Oosterhoff, “Predatory Marriages” (2013), 33 E.T.P.J. 24; Kimberly A. Whaley and Albert H. Oosterhoff, “Predatory Marriages – Equitable Remedies” (2014), 34 E.T.P.J. 269; Kimberly A. Whaley and Albert H. Oosterhoff, “Predatory Marriages” (2018), 48 Adv. Q. 253.
[5]“Curbing the Scourge of Predatory Marriages by Legislation”. http://welpartners.com/blog/2019/11/curbing-the-scourge-of-predatory-marriages-by-legislation/ . Posted 12 November 2019.
(ii) Missing Case - Grassing v. Riley, 2020 MBQB 34
By Albert H. Oosterhoff

On 20 May 2020 I posted a blog entitled “Reducing a Surviving Spouse’s Preferential Share on a Partial Intestacy”.[1] It was a comment on the Manitoba case Grassing v. Riley.[2] Unfortunately, the case seems hard to find as it does not appear to be in any online databases. Since I have had a number of requests about it, I deem it advisable to attach the case to this article as an appendix.


Date: 20200220
Docket: PR 18-01-11936
(Winnipeg Centre) Indexed as: Grassing et al. v. Riley Cited as: 2020 MBQB 34


IN THE MATTER OF: The Estate of Allan Stanley Grassing

B E T W E E N:                                       

- and -


STEVEN W. BRENNAN, for the applicants.
MURRAY N. TRACHTENBERG, for the respondent.

Judgment delivered:
February 20, 2020




[1] The applicants seek advice and direction about whether the respondent’s preferential share of the deceased’s estate, to which she is entitled as the deceased’s surviving common-law partner under subsection 2(3) of The Intestate Succession Act, C.C.S.M. c. I85 (the “ISA”), is to be reduced under subsection 2(4) of the ISA, by an amount equal to the value of the benefits she received as the deceased’s designated beneficiary under his Registered Retirement Income Fund (RRIF) and his Tax Free Savings Account (TFSA).

These subsections of the ISA provide as follows:

2(3) If an intestate dies leaving a surviving spouse or common-law partner and issue, and one or more of the issue are not also issue of the surviving spouse or common-law partner, the share of the surviving spouse or common- law partner is

(a)      $50,000., or one-half of the intestate estate, whichever is greater; and

(b)      one-half of any remainder of the intestate estate after allocation of the share provided by clause (a).

2(4) The maximum entitlement set out in clause (3)(a) shall be reduced by an amount equal to the value of any benefits received by the surviving spouse or common-law partner under a will of the deceased. [Underlining with emphasis added]

[2] If there is to be such a reduction, the parties also seek advice and direction about whether this reduction is subject to potential future tax liability relative to the RRIF.


[3] The deceased died intestate on August 13, 2016. The applicants are his only surviving children and the respondent is his surviving common-law partner. At the time of his death, in addition to other property, the deceased held a RRIF and a TFSA, for which he designated the respondent as his beneficiary upon his death.

[4] These beneficiary designations were included in the deceased’s application documents that he completed and signed prior to his death for each of the RRIF and the TFSA. Following his death, the respondent received the funds from his RRIF and TFSA.


[5] There is no dispute that, as the deceased’s surviving common-law partner, the respondent is entitled to a preferential share of the deceased’s estate calculated in accordance with subsection 2(3) of the ISA. However, the issue before me is whether this entitlement is to be reduced under subsection 2(4) of the ISA, by the amount equal to the value of the benefits received by the respondent from the deceased’s RRIF and TFSA. If there is to be such a reduction, the related issue is whether this reduction is subject to potential future tax liability relative to the RRIF.


[6] It is the applicants’ position that the respondent’s entitlement to a preferential share should be reduced under subsection 2(4) of the ISA, by an amount equal to the value of the benefits that she received as the designated beneficiary of the deceased’s RRIF and TFSA. They say that these funds are benefits received by her “under a will of the deceased” as that expression was intended under subsection 2(4) of the ISA. It is the respondent’s position that her entitlement is not to be reduced because these funds are not benefits received by her “under a will of the deceased”. Rather, the respondent says that the RRIF and TFSA are each a “plan” and the benefits that she received from the RRIF and the TFSA are pursuant to “instruments” signed by the deceased, as defined under The Beneficiary Designation Act (Retirement, Savings and Other Plans), C.C.S.M. c. B30 (the “BDA”), and not a “will”.


Were the RRIF and TFSA funds “benefits received by [the respondent] under a will of the deceased”?

[7] As is apparent, pivotal to my determination is whether the funds received by the respondent as the designated beneficiary of the deceased’s RRIF and TFSA were benefits received by her “under a will of the deceased”.
[8] The ISA does not define the term “will”.

[9] The Wills Act, C.C.S.M., c. W150 (the “Wills Act”), in section 1, defines a “will” as follows:

"will" includes a testament, a codicil, an appointment by will or by writing in the nature of a will in exercise of a power and any other testamentary disposition. [Underlining with emphasis added]

[10] The BDA provides in section 1, that “will” has the same meaning as in the Wills Act.

[11] The applicants argue that the beneficiary designation under each of the RRIF and TFSA is a “testamentary disposition” and therefore is a will based on the definition of “will” in the Wills Act and for the purpose of subsection 2(4) of the ISA. They rely on the following distinguishing features of a testamentary disposition:

  • “a deliberate, fixed and final expression as to the disposition of the property of the deceased on her death” (Canada Permanent Trust Co. et al. v. Bowman et al., [1962] S.C.R. 711, at p. 715); and
  • “It is undoubted law that whatever may be the form of a duly executed instrument, if the person executing it intends that it shall not take effect until after his death, and it is dependent upon his death for its vigor and effect, it is testamentary.” (Wonnacott v. Loewen, 44 BCLR (2d) 23 (B.C.C.A.) referencing Cock v. Cooke (1866), L.R. 1 241 (P. & D.) at p. 243).

[12] The applicants submit that the two-part test for a testamentary disposition is met. First, the deceased’s beneficiary designation gifting his RRIF and TFSA was of no force and effect until the time of his death. Second, the deceased retained complete control over the RRIF and TFSA during his lifetime. The applicants also rely on Morrison Estate (Re), 2015 ABQB 769 (at paras. 45, 46, 50, 51), which held that the beneficiary designation under a RRIF was the equivalent of a testamentary disposition under a will. The applicants concede that the beneficiary designation forms by which the respondent was paid the RRIF and TFSA funds were not executed in compliance with the formalities of the Wills Act. However, they say that any concern in this regard is addressed by the broad discretion of the court reflected under section 23 of the Wills Act to recognize a document as a testamentary disposition where the court is satisfied that it embodies the testamentary intention of the deceased. In support of the applicants’ position, their counsel points to the following comments of Justice Graesser in Morrison Estate (Re) (at paras. 50 - 51):

If there was some expectation that requiring formalities would ensure that the testator obtained appropriate advice before completing a will or codicil, that is entirely undone by the law respecting holograph wills.

I ask rhetorically, if a few handwritten notes on the back of a cigarette package signed by the testator is a valid testamentary instrument and not subject to the law relating to resulting trusts, why should a beneficiary designation signed and witnessed (presumably by a knowledgeable investment advisor) be treated differently?

[13] The respondent argues that under the BDA, the RRIF and TFSA are each a “plan” and the benefits that she received from the RRIF and the TFSA, as the deceased’s designated beneficiary in these RRIF and TFSA documents, are pursuant to “instruments” signed by the deceased prior to his death, and not under a “will”. Of key importance, the respondent says that section 2 of the BDA draws a distinction between a designation by “instrument signed by the participant” and the participant’s will, such that the RRIF and TFSA documents cannot be both.

[14] For the following reasons, I agree with the respondent’s position.

[15] Even with the invocation of section 23 of the Wills Act, the applicants do not suggest that the RRIF and TFSA documents, which contain the beneficiary designation, be converted into a will for the purpose of the Wills Act, and be submitted for probate. As such, while the deceased’s beneficiary designations meet the common law description of a testamentary disposition, they serve no value for the purpose of the Wills Act.

[16] On the other hand, the RRIF and the TFSA clearly meet the definition of a “plan” as defined in section 1 of the BDA, and are thus subject to the legislative scheme of the BDA. Section 1 of the BDA includes in the definition of “plan”:

(c)  a TFSA (tax-free savings account), retirement savings plan or retirement income fund as defined in the Income Tax Act (Canada).

[17] Section 2 of the BDA provides the following three methods that a plan participant may designate a person to receive a benefit payable under a plan on the participant’s death:
(a)   by an instrument signed by the participant;
(b)   by an instrument signed by another on the participant's behalf, in the participant's presence and on the participant's direction; or
(c)    by will.

[18] The legislature is presumed to have a mastery of existing law, both common law and statute law (Ruth Sullivan, Sullivan on the Construction of Statutes, (6th ed.) (Markham: LexisNexis Canada Inc., 2014) at §. 8.9 - 8.11). Therefore, it may be presumed that the legislature was aware that such benefits payable under a plan on the participant’s death are a testamentary disposition. Section 2 of the BDA provides the three methods, as enumerated above, by which this testamentary disposition may be made. As such, for the purpose of this testamentary disposition, the BDA draws a distinction between an instrument signed by the participant in subsection 2(a) and a will in subsection 2(c).

[19] An instrument signed by the participant is different from a will. The applicants’ counsel argued that the terms “instrument” in subsection 2(a) and “will” in subsection 2(c) are used interchangeably and treated as equivalent in the BDA. However, such an interpretation would run afoul of the presumption against tautology described in Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715 (at para. 45):

‘[E]very word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose’…. To the extent that it is possible to do so, courts should avoid adopting interpretations that render any portion of a statute meaningless or redundant…. [citations omitted]

(See also, Sullivan on the Construction of Statutes, at §. 8.23)

[20] Indeed, certain sections of the BDA apply to a designation of a person to receive a benefit payable under a plan on the participant’s death by instrument, while other sections apply to a designation by will. Sections 2 to 13 of the BDA have specific provisions on how to make, and revoke, such a designation, both by instrument and by will. By virtue of these provisions, the BDA plainly draws a distinction between a designation by instrument and by will. Several of these sections deal with the effect of a will and an instrument on each other, and, in so doing, use language that treats a designation made by instrument as different from a will. This is apparent, for example, in section 4 of the BDA, which provides as follows:

Subject to section 12, a revocation in a will of a designation made by instrument is effective to revoke the designation only if the revocation relates expressly to the designation, either generally or specifically. [Underlining with emphasis added]

[21] If the term “instrument” is equivalent to the term “will” as suggested by the applicants’ counsel, the foregoing section would be non-sensible.

[22] Similarly, if “instrument” and “will” are used interchangeably under section 2 of the BDA as argued by the applicants’ counsel, would this apply for purposes beyond the reduction of the preferential share sought by the applicants under subsection 2(4) of the ISA? For example, would an instrument signed by a plan participant be subject to the provision on revocation of a bequest on divorce in subsection 18(2) of the Wills Act? Subsection 18(2) of the Wills Act includes that, where in a will a bequest of a beneficial interest in property is made to the spouse of the testator, and after the making of the will and before the death of the testator, the testator’s marriage to that spouse is terminated by a decree absolute of divorce, then, unless a contrary intention appears in the will, the bequest is revoked. However, such a conclusion would appear inconsistent with the existence and wording of the designation and revocation provisions in the BDA (sections 2 to 13). For example, section 13 of the BDA mandates that any form furnished to a participant by the administrator of a plan for use in making a designation shall contain a caution that the designation of a beneficiary by means of a designation form will not be revoked automatically by any future divorce.

[23] I am unable to find that it was the legislature’s intention to treat an instrument as a will. The BDA contains an entire scheme governing plans. This includes, in section 2 of the BDA, the specific ability for a plan participant to designate a person to receive a benefit payable under a plan on the participant’s death by an instrument signed by the participant, as a separate method from doing so by will. That is, this legislative scheme under the BDA, while permitting the designation of a beneficiary by will, also as a separate method, permits the designation of a beneficiary by an instrument signed by the plan participant. In this context, it is my view that it would thwart the legislature’s intention to treat such a designation by instrument as a will. If the legislature intended there to be a reduction from a surviving common-law partner’s preferential share under subsection 2(4) of the ISA of the value of benefits received by the surviving common-law partner from a RRIF or TFSA on the plan participant’s death pursuant to an instrument signed by the participant, I expect that the ISA would have said so.

[24] The circumstances outlined in Morrison Estate (Re) are patently distinguishable from those in the case at hand, wherein Justice Graesser noted that his approach “may be viewed as extraordinary” so as to provide an adequate remedy (at para. 110).

[25] In the circumstances of the case at hand, I find that:

  1. Neither the beneficiary designation in the RRIF nor in the TFSA documents are a will as this term is used in subsection 2(4) of the ISA;
  2. Under section 1 of the BDA, the RRIF and the TFSA are each a “plan”;
  3. The related documents that the deceased completed and signed prior to his death for each of the RRIF and the TFSA are each “an instrument signed by the participant” under subsection 2(a) of the BDA;
  4. The funds received by the respondent from the RRIF and the TFSA were benefits payable under a plan on the participant’s death by an instrument signed by the participant under subsection 2(a) of the BDA, and not by will under subsection 2(c) of the BDA; and
  5. Such an instrument signed by a plan participant is not equivalent to a will.

[26] Accordingly, I also find that there is to be no reduction under subsection 2(4) of the ISA of the amount equal to the value of the benefits received by the respondent under the RRIF and TFSA from the respondent’s entitlement to a preferential share of the deceased’s estate under subsection 2(3) of the ISA.


[27] In the event that my finding is determined to be incorrect, I have provisionally assessed the amount of the reduction under subsection 2(4) of the ISA. As noted, this reduction under subsection 2(4) of the ISA is “an amount equal to the value of any benefits received by the surviving … common-law partner under a will of the deceased”. There is no dispute about the value of the benefits received by the respondent from the TFSA. However, it is the respondent’s position that the reduction under subsection 2(4) of the ISA ought to reflect the tax liability to be incurred as she withdraws these funds from her RRIF, into which the deceased’s RRIF funds were transferred.

[28] The respondent relies on affidavit evidence that she filed from a chartered professional accountant regarding this tax liability. The applicants have not filed any evidence regarding this tax liability and their counsel has not cross-examined the respondent’s chartered professional accountant on his affidavit evidence. The applicants’ counsel argues that the reduction in the value of the RRIF benefits as suggested by the respondent, should not be applied as the evidence on which it is based from the respondent’s chartered professional accountant is essentially unreliable. The applicants’ counsel argues that the chartered professional accountant’s opinion assumes the highest marginal tax rate and his opinion does not adequately take into account that these RRIF funds will be withdrawn over time. The applicants’ counsel argues that the chartered professional accountant’s opinion does not reflect the tax-free investment growth that will occur which will offset or eliminate the tax liability of the value of the RRIF benefits received by the respondent over her lifetime. Moreover, the applicants’ counsel argues that there is no statutory provision that would allow the court to consider potential future tax liability in the context of a reduction to the preferential share under subsection 2(4) of ISA.

[29] For the purpose of the amount of the reduction under subsection 2(4) of the ISA, the question is “the value of any benefits received by” the surviving common-law partner. In my view, the words “value” and “benefits received” indicate that it is not the amount received, but its worth. Here, the only evidence is from the respondent’s chartered professional accountant that the respondent will have a tax liability of between $78,857 and $87,590, which he deposed reduces the actual value of the RRIF. The chartered professional accountant opined that the present value of this tax stream is a range of these amounts. In my view, as a result, this tax liability reduces the value of any benefits received by the respondent from the RRIF. Recognizing the chartered professional accountant’s qualification in his opinion that it is difficult to estimate the actual taxes that will arise on these RRIF funds over the respondent’s lifetime as this will depend on a number of factors, most importantly, her lifespan, having regard to all of the circumstances, including those identified by the applicants’ counsel, I am taking the mid-point of these amounts, which is $83,223.50. As such, for the purpose of a reduction under subsection 2(4) of the ISA, the amount equal to the value of the benefits received by the respondent under the RRIF is $171,607.90 ($254,831.40 less $83,223.50). There is no dispute that receipt of the funds from the TFSA does not result in a tax liability. As such, for the purpose of a reduction under subsection 2(4) of the ISA, the amount equal to the value of the benefits received by the respondent under the TFSA is $38,072.73, which is the full amount received by her.


[30] It is the respondent’s position that, as the successful party, costs are payable by the applicants to her and that these costs are not payable from the estate. The respondent points out that prior to the filing of this application, the applicants’ counsel was provided with the respondent’s counsel’s opinion, which is consistent with the respondent’s argument that ultimately prevailed. In turn, it is the applicants’ position that the costs should be paid on a pro rata basis from the estate because this was a bona fide dispute about which the respondent administrator should have sought court advice and direction.

[31] The law governing the payment of costs from an estate in the context of estate litigation is summarized in McAuley v. Genaille, 2017 MBCA 69, where Pfuetzner J.A. wrote as follows (para. 83):
Historically, the traditional rule in estate litigation was that the costs of all parties were payable from the estate. However, this rule has given way to a more modern approach that seeks to discourage needless litigation. Unless certain public policy considerations apply to the litigation, the normal civil litigation costs rules will generally apply. The public policy considerations that support an order for all parties' costs to be paid from the estate are where the litigation was considered necessary either: (1) due to issues created by the testator; or (2) to ensure that estates are properly administered. … [citation omitted]

[32] In the case at hand, neither of the public policy considerations that support an order for costs to be paid from the estate apply. As such, here, the normal civil litigation costs rules apply. It follows that costs be paid by the applicants as the unsuccessful parties. There is nothing about the circumstances of this case that would justify costs either above or below the applicable tariff. In the circumstances, I am ordering costs in favour of the respondent, as the successful party, against the applicants, as the unsuccessful parties, in accordance with the applicable tariff.


[33] In conclusion, I find that the respondent’s preferential share of the deceased’s estate, to which she is entitled as the deceased’s surviving common-law partner under subsection 2(3) of the ISA, is not to be reduced under subsection 2(4) of the ISA by an amount equal to the value of the benefits she received as the deceased’s designated beneficiary under his RRIF and TFSA. In the event that this finding is determined to be incorrect, I have provisionally assessed the amount of the reduction under subsection 2(4) of the ISA to be $171,607.90 for the RRIF and $38,072.73 for the TFSA. I am ordering costs in favour of the respondent against the applicants, in accordance with the applicable tariff.



[2] 2020 MBQB 34.
(iii) Uncertain Language in a Will Can Have a Major Impact on the Beneficiaries of an Estate
Barsoski v. Wesley [1], https://canlii.ca/t/jbw7f  

By Bryan Gilmartin


In Barsoski v. Wesley, an issue arose concerning the interpretation of a will to determine a beneficiary’s interest in the deceased’s home. Diane Barsoski (“Ms. Barsoski”) made a will on December 15, 2016 (the “Will”) which provided that her house and its contents were to be held for her friend, Robert Wesley (“Mr. Wesley”), to use during his lifetime. The Will also established a fund of $500,000.00 for Mr. Wesley’s benefit, to ensure that the home was professionally maintained at no expense to him while he occupied the house.
The Will provided that if Mr. Wesley was no longer living in the home, the fund was to be used for his living expenses, nursing or retirement home care, or funeral expenses. Importantly, the Will also provided that if Mr. Wesley was “no longer living in the house” that the house and its contents be sold, and the proceeds added to a gift to another beneficiary under the Will, the charity St. Stephens House of London (the “Charity”)

Ms. Barsoski died on June 28, 2017. Beginning around December 2017, a question arose as to whether Mr. Wesley was actually living in the house as required by the terms of the Will. A private investigation funded by the Charity revealed that Mr. Wesley continued to work full-time in Toronto while an acquaintance of his was living in the home. Further, Mr. Wesley started a full-time job in Sault Ste. Marie in November 2019.

The Estate Trustee commenced an application seeking the court’s direction with respect to the following issues:

(i) whether the terms of the Will granted Mr. Wesley a licence to live in the home or a life estate; and
(ii) whether the licence or life interest had expired given that Mr. Wesley had not been living in the home as contemplated by the Will.

In the alternative, the Estate Trustee inquired as to whether the determining event, “no longer living in the home,” was void for uncertainty.

Licence or Life Interest?

The court found that the Will granted Mr. Wesley a licence to occupy the home and not a life interest. In its reasons, the court noted that a licence with respect to real property is a privilege to go on the premises for a certain purpose, but does not operate to confer on, or vest in, the licencee any title or estate in such property. On the other hand, the holder of a life estate has the right to immediate possession of the property and to its use as the owner, subject to some restrictions to protect the rights of the person entitled to the property at the end of the life estate.

In reaching its decision, the court considered evidence of the circumstances that were present at the time Ms. Barsoski made the Will. The court rejected evidence of a subsequent unexecuted will that imposed stricter periods for Mr. Wesley to move into the house. It did so on the basis that this evidence could not conclusively speak to Ms. Barsoski’s intentions with respect to the disposition of the house and that the evidence was not contemporaneous with the circumstances that existed at the time the Will was made.

According to the Will, the licence would expire if he was “no longer living in the house”. In reaching its decision, the court cited Moore v. Royal Trust Co. In that case, it was determined that the legal estate of the house was in the trustee subject to the obligation to permit the respondent to live in the house. As such, the court held that the gift of the house was not simply for Mr. Wesley’s lifetime, but for such shorter time as he desired or if he no longer lived in the house.

Mr. Wesley argued that the existence of the $500,000.00 fund for maintenance supported his argument that the Will provided him with a life interest in the house. However, the court rejected this argument as the fund was for a fixed amount and broadly provided for Mr. Wesley’s living expenses irrespective of where he lived for the remainder of his lifetime. As such, the court held that this fund contributed to a finding that Ms. Barsoski’s intention was to provide Mr. Wesley with a licence to use the home and not a life interest. 

Void for Uncertainty?

The issue before the court was whether the determining event in the Will, that being “Robert no longer living in the home” was void for uncertainty.

There was no dispute that this term imposed a condition subsequent on the grant of the house of Mr. Wesley. In reaching its decision, the court relied on McColgan Re, which stands for the principle that a condition subsequent is void for uncertainty if the condition is “far too indefinite and uncertain to enable the court to say what it was that the testator meant should be the event on which the estate was to determine.”

On this basis, the court as satisfied that “no longer living” created uncertainty such that the condition subsequent was invalid. The court noted that it would be impossible to define, on the terms of the Will, what it meant to “live” in the house. The terms did not explain what Mr. Wesley needed to demonstrate to show that he was “living” in the house.

If the Will provided Mr. Wesley with a life interest, the gift of the house would have taken effect without limiting conditions. However, because the court found that the Will provided Mr. Wesley with a licence, the condition subsequent failed for uncertainty and the gift of the house was void. As a result, the court ordered the Estate Trustee to sell the home and its contents and that the proceeds of same be paid to the Charity.


Careful consideration needs to be given to the wording of bequests in a will. As this case demonstrates, what seems simple and straight forward at the moment a will is drafted can result in significant problems when the testator is no longer around to explain what he or she actually intended.


[1] Barsoski v. Wesley, 2020 ONSC 7407.
(iv) Estates in the News: Football Family Feud
By Daniel Paperny


While Tom Brady and his competition are vying to be crowned Super Bowl Champions in the NFL playoffs, a different sort of battle is brewing in a Colorado Courthouse which could have a dramatic impact on the landscape of the multi-billion-dollar league and its ownership group. 

The National Football League is the most profitable pro sports league in North America. It generates around 15 billion dollars per year, bringing in massive profits for the uber-powerful owners of its 32 franchises. Each team is worth billions of dollars.

This, of course, makes control/ownership over an NFL franchise an extremely lucrative venture. Many of the teams are family-owned-and-run, passed down from generation to generation, creating massive wealth for the families that own them (see: the Rooney family who own the Pittsburgh Steelers or the Mara family who own the New York Giants).

Such is the case for the Bowlen Family, who own the Denver Broncos. In 1984, Pat Bowlen and his two brothers, John and Bill, bought the Broncos for a measly $75 million. Today, the team is worth over $3 billion.

Pat believed that he had in place a solid succession plan that would see the team passed down to one of his surviving children when he died, by way of an inter vivos discretionary trust that Pat made 10 years prior to his passing.

Sadly however, after Mr. Bowlen’s death in 2019, litigation ensued between his kids and trustees who are now fighting over control of the team. The litigation stems from allegations that Pat was not mentally capable when he made his estate plan.

A Contested Turnover
In addition to being the team’s majority owner, Pat Bowlen was the Broncos’ CEO until he stepped down in 2014 because of health concerns relating to Alzheimer’s and dementia. Since that time, control of the team has fallen to three trustees who were appointed by Pat himself and empowered with full decision-making authority to manage the team on his behalf.

It was always Pat’s intention that one of his seven children (two from his first marriage and five from a second marriage) would eventually inherit the team following his death.

However, Pat never actually specified which of his kids he wanted to take over the Broncos. He ultimately left this choice up to his trustees. 

In 2009, Pat settled a trust that would control the team after he resigned and he authorized his three trustees to decide which of the seven kids would inherit the Denver Broncos upon Pat’s death. The trust conferred very broad discretion upon Pat’s trustees in this regard.

The three trustees ran the Broncos operation from 2014 until Pat’s death in August, 2019. At which time the trustees announced their decision that one of Pat’s daughters from his second marriage, 30-year old Brittany Bowlen, would be the next controlling owner of the Broncos.

This decision came after Mr. Bowlen’s two daughters from his first marriage, Beth and Amie, had expressed their interest in running the team back in 2018 (before Pat’s death). At which time the trustees exclaimed it was their view that Beth and Amie were “not capable or qualified” to take over as owners of the Broncos.

The trustees went on to select Brittany as the next owner of the Broncos and have since given Brittany a position among the team’s management to groom her for that role.

This was not received well by Beth and Amie. The elder Bowlen children proceeded to file a lawsuit contesting the validity of Pat’s trust on the grounds that Mr. Bowlen was already suffering from Alzheimer’s when he made the trust in 2009 and he lacked to requisite capacity to settle the trust or was unduly influenced to do so. If successful, the lawsuit would wrestle control of the team away from the trustees.

Beth and Amie assert that medical records and corroborative documentation provide “substantial and overwhelming evidence that Mr. Bowlen lacked the required capacity in 2009” when he settled the trust. Meanwhile, the trustees contend that Pat knew exactly what he was doing when he made the trust, and that the lawsuit is simply an attempt by Beth and Amie to override the trust and is contrary to the testamentary intentions of Pat.  

Interestingly, Pat’s trust and estate plan reportedly include a “no-contest” clause, which prohibits the beneficiaries of Pat’s estate from challenging his testamentary plan. This means that if Beth and Amie’s challenge fails in court, they could be disinherited from Pat’s estate entirely if found in violation of the “no-contest” clause.

Fourth Quarter
The trial of the Bowlen case is scheduled to take place over 5 weeks beginning in July, 2021.

Ultimately, as in most will challenges and capacity-focused litigation, the lawsuit will be determined by the strength of the evidence presented by both sides, and in particular the medical evidence and legal files available that speaks to Pat’s capacity or lack thereof at the relevant times.

Beth and Amie will have to produce compelling evidence - including health care records, expert reports and witness testimony - capable of convincing a judge that Pat Bowlen’s cognitive decline in 2009 was such that he was not able to fully comprehend the nature, meaning or effect of his estate planning decisions when the trust was settled. Alternatively, Beth and Amie will have to show that Pat’s mental state was so compromised at the time, that he was vulnerable to being unduly influenced and was, in fact, pressured by others into making the trust against his will.

Pat’s trustees and his lawyers that helped draft the trust are tasked with showing that Pat was of sound mind when his estate plan was settled, and that the decision to make the trust was Pat’s alone.

The Bowlen case is yet another reminder for estate planners and will-makers to keep meticulous notes and records detailing the period during which an estate plan is drafted and executed. Which notes and records should confirm that the will-maker’s capacity was duly assessed and confirmed around the time the testamentary plan was made. The keeping of such records could help protect the estate from a potential challenge down the line.

The Bowlen case also provides an important lesson for those contemplating their estate plan and their families: it is not only crucial to draft and execute these plans while the testator is still capable and before the onset of cognitive decline that may accompany advanced age; it is similarly important for a testator to discuss their plan and review their intentions with their family members while the testator remains capable of having such discussions. While talking to loved ones about one’s wishes in the event of their death is never an easy conversation to have, such conversation and the mutual understanding amongst family that can result from these talks could prevent misunderstandings, conflict and even litigation in the future.
Toronto Lawyers Association
Serious Illness Decision Making
January 28, 2021
Speaker: Kimberly Whaley

Osgoode Professional Development
Passing of Fiduciary Accounts
April 6, 2021
Chair: Kimberly Whaley
Speakers, Albert Oosterhoff, Tracey Phinnemore

Osgoode Certificate in Elder Law
Tackling Financial Abuse of Elders
April 21, 2021
Speaker: Kimberly Whaley

Estate Planning and Litigation Forum
April 18-20, 2021 (to be rescheduled)

Osgoode Professional Development
Contentious Guardianship Applications and Removals of Attorneys and Guardians
April 27, 2021
Speaker: Kimberly Whaley

LESA 53rd Annual Refresher: Managing Wills & Estates Matters
April 30-May 3, 2021
Decisional Capacity: A Wills & Estates Context
Speaker: Kimberly Whaley and John Poyser

Law Society of Ontario, 15th Solo and Small Firm Conference
The Solo/Small Advantage
June 10, 2021
Chair: Kimberly Whaley

GTA Accountants and Finance Network – GTAAN/GTAFN
Trust and Estate
October 21, 2021
Speakers: WEL lawyers

International Federation of Ageing – 15th Global Conference on Ageing
November 10-12, 2021
Speakers: Daniel Paperny and Matthew Rendely
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WEL NEWSLETTER January 2021, Vol. 10, No. 10