2024 Decisions That Have Changed the Canadian Estate Litigation Landscape

Mallory Hendry  00:00:00
Hello everyone, and thanks for joining us today. I'm Mallory Hendry, Content Specialist Manager with Canadian Lawyer, and I'm pleased to introduce today's webinar2024 Decisions That Have Changed The Canadian Estate Litigation Landscape. Today, we're joined by Kimberly Whaley, founding and managing partner at Whaley Estate Litigation Partners, and another partner from her firm, Brian Gilmartin as well. We have Ian Hull, Co founding partner at Hull and Hull and the Managing Partner at his firm, Susanna Popovic Montag. This panel of renowned estate litigators will discuss the critical court discussion decisions that are driving the shifts in this area and share related insights and strategies to help you enhance your practice. At the end of the presentation, there will be a question and answer period, if time allows. So type any questions you have into the Q and A box. I'll turn things over to our panelists now to begin the presentation, take it away. Kim,

Kimberly Whaley  00:00:55
Good afternoon, everyone and welcome today. Our panel are going to address some 2024 decisions with the goal of providing eight takeaway practice tips from these decisions. We've had a lot of decisions this year, giving litigators, I think, pause when advising their clients, and certainly, a great number of appeal court decisions. So let's get started with one of my favorite of the year, the decision in William Robert waters and Jillian Henry. This one, the court dealt with a host of legal issues and claims. It was a very lengthy decision, and the court in essence, had to determine whether an elderly man intended to gift $30 million in assets and real property to his wife's caregiver. He had struck up a romantic relationship with her. And then the other question the court had to look at was whether the caretaker or caregiver was required to return any of his estate upon his death. So briefly, turning to the facts. In the 1990s Phyllis was involved in a catastrophic accident with laughter, house bound and a recluse. Both William and Phyllis were seeking night time PSW assistance and hired Jillian Henry to assist Phyllis. By the point in time in their marriage, they were living on separate floors, and their marriage relationship was strained. Soon after Jillian started working with them, the relationship as between William and Jillian started, and it lasted for a duration of in or about 10 years, up until William's death. Within a few months of starting, $100,000 was transferred to Jillian for her to buy a Mercedes SUV. And this, in effect, started the succession of transfers that would transpire over the next 10 years. The transfers included property, money, real property, jewelry, clothing, etc. But towards the end of Williams life, he began to run out of money, so he then started taking from his wife, Phyllis assets and her bank account to the tune of in or about 5.4 million, which was traceable. William controlled Phyllis assets through a power of attorney for property. And at death, Phyllis was left with only $500,000 in assets, and that wasn't sufficient to fund her ongoing care needs. So what did Williams co estate trustees do? They commenced an action against Jillian, and this is how it ended, more or less, notwithstanding the innumerate claims, and I'll leave that to you to review, the court found that the majority of the transfers that William made to Jillian were indeed gifts. Jillian was, however, ordered to return 2.8 5 million improperly gifted from the funds of Phyllis. And the estate of William was entitled to an 80% interest in an investment property under the doctrine of resulting trust on addressing whether the transfers to Gillian were gifts or whether William intended the money would return on his death. The court relied on the test established to gift in McNamee and McNamee, it was a 2011 Ontario Court of Appeal decision where the Court said one has to show the donor intended to donate the gift. There was sufficient delivery of the gift, and there was acceptance of the gifts. Williams estate attempted to use various remedies to prove that William did not intend to give the transfers. Most of them failed, and all of the ones that you see on the screen there were Canvas in detail by the court Jillian was successfully able to demonstrate William's intention to gift, and in part, this was because of the evidence given that William knew that Jillian was spending the money on cars and jewelry and vacations. He reviewed all of his visa statements before authorizing the payments and. Checks were issued to Jillian and signed by William, and the transactions were all personally approved by William himself. The only or so one of the two successful remedies claimed by Williams estate was the one property that was returned by way of resulting trust, and that was a ranch property that Jillian had built a horse stable on. It was called the King of Hearts Williams estate, though, was able to provide evidence that William had always treated this as an investment property, and that he had often commented to his his advisors, that he wanted to get his money out of this investment, because it wasn't a sage investment, Jillian wasn't able to rebut the presumption of resulting trust. So because there was a fiduciary relationship found not only between William and Phyllis, but also between Phyllis and Jillian, the court looked at the fiduciary obligations and the scope. And so these are the characteristics that demonstrate a fiduciary obligation, that the fiduciary has the scope for the exercise of some discretion or power, that power can be unilaterally exercised, and the beneficiary is particularly vulnerable or at the mercy of the fiduciary holding the discretion for the power. So in the end, Jill Jillian was not entitled to keep Phyllis money and justice. Callahan importantly held that William and Jillian's actions were unconscionable, and that the doctrine of equitable fraud precluded Jillian from retaining the monies she was reordered to pay them to the estate. And I just want to comment in conclusion on this case, that these types of situations involving an estate often have evidentiary hurdles, and Notwithstanding that, we see a rise in equitable remedies being successfully applied, and now a common theme in this instance, resulting trust in enrichment and unconscionability, as well as the doctrine of equitable fraud, were all tools that the court was able to apply to resolve the fiduciary breaches as between the group of them. With that, said, over to Susanna for our next case.

Suzana Popovic-Montag  00:07:24
Thank you very much, Kim. And just before I get into the next case, I wanted to mention to our participants that our slides and any cases that are mentioned in addition to the slide desk will be available after this presentation. So the next notable case that I wanted to discuss was the 2024 Ontario Court of Appeal decision of imato, which estate versus a matter which, in this decision, the main issue concerned whether perhaps there was more than one legal test for the rectification of the will. In terms of background, the deceased died in 2020 leaving two children, markian and Yolanda, and three grandchildren who are Yolanda's children. The deceased had executed a last will and testament many years earlier in 2009 and his will provided that 10% of the residue of his estate was distributable to his grandchildren, and the balance of the residue of the estate was to be distributable to the deceased issue being his biological children alive at the date of death. Now, the deceased estranged son, his biological son, Alexander, and his two minor children filed a notice of objection to Yolanda's probate proceeding when they caught wind of the terms of the will and of Yolanda's intention to exclude them as beneficiaries of the estate. Alexander claimed that he had a residuary interest in the estate because he fell within the definition of the deceased issue, that is, his biological children, and that his children were also entitled to an interest in the estate, since they were this deceased grandchildren. In response you, Lana brought an application to rectify her father's will to specifically exclude Alexander and his children from it, and the application judge ultimately granted you land as request. Now at first glance, this might come as somewhat of a surprise to you, as it certainly did to me, after all, as a biological child, Alexander was clearly issue, and his children were clearly grandchildren of the deceased. There didn't seem to be any ambiguity, at least not in my mind, that Alexander and his children ought to have been included as beneficiaries of the estate purely by virtue of the terms of the will, but in considering the request to rectify the will in the circumstances, the Court turned the leading decision of re estate of Blanca Esther Robinson, which we commonly referred to as the Robinson decision, and the court noted that a court will only rectify a will where there's no ambiguity on the face of the will, as there was none here for. And the test data reviewed and approved the wording, as the evidence showed that he had if one of the following three grounds are present, where there's an accidental slip or omission because of an typographical error or clerical error, where the testators instructions have been misunderstood, or where the testators instructions have simply not been carried out. Here, Julianna framed her request for rectification of her father's will in the following manner. First, she sought to rectify the will to limit the 10% interest of the grandchildren to her and markians children to the exclusion of Alexander's children. And second, she sought to limit the remaining 90% of the inheritance to herself and her brother, markian, so as to completely exclude Alexander. In other words, she was looking to exclude Alexander and his children, who otherwise would have fallen within the traditional class of issued grandchildren as intended beneficiaries of the estate. So why did the court agree to rectify the deceased's will? Well, in applying the test in Robinson, it noted that, firstly, a drafting solicitor admitted that because he had used a standard form will precedent, he didn't actually accurately capture the deceased intentions or his instructions in the will, the solicitor's notes also demonstrated evidence of the deceased intention to specifically only include his two children and their children as beneficiaries of the estate, and not Alexander and his and finally, the court was of the view that the proposed rectification would ultimately carry out the deceased intentions as set out in the evidence before. So in light of this evidence, the court held that the test in Robinson was met and the will should be rectified, as requested by Juana. Now, not surprisingly, Alexander appealed on the basis that the court actually applied the incorrect test for the rectification of the will. Alexander argued that rather than the test set out in Robinson, the court ought to have applied the test to set out in the more recent Supreme Court a Canada decision of the Canada Attorney General versus Fairmont Hotels Inc, which allegedly set out a new and different test for the rectification of the Will the Court of Appeal disagreed and ultimately dismissed Alexander's appeal, holding that the application judge had actually correctly invoked the third factor in Robinson to enable rectification, the fact that the deceased instructions had not been carried out in Israel. The Court held that the Fairmont decision didn't actually create a new and different test for rectification, as the decision in Fairmont actually followed the test set out of Robinson. And finally, the evidence that was accepted by the application judge was sufficient to allow for rectification of the will, and so his conclusions, which were rooted in the evidence, were entitled to appellate deference, and the appeal was ultimately dismissed with costs awarded to Julianna. Over to you, Ian.

Ian Hull  00:13:04
Thanks. Suzana, well, staying with the theme of seeing what the Court of Appeal is doing, we've had the benefit of the Ingram decision on the limitation periods. And this decision, of course, is important on a bunch of levels, but it's the first practice tool that I two things I always do when I get a new matter and intake is give me a copy of the will, and what is the date of death? Well, this decision really turned on the date of death. It really mattered. And that is, when do you start calculating limitation periods? The deceased died in 2017 he left the will back in the late 80s. But at first instance, the applicant was Ms Ingram stated that she was the deceased common law spouse for over 15 years and was left out of the will, and so she also went on. The facts were that she had lived at the sorry that the deceased had lived at her house for years, and that he used his house as a rental home, and was therefore allowed to generate some income for the benefit in that regard. So it was important that she lived in she actually never, factually lived in the deceased house. But so she brought a claim against the deceased estate by way of constructive trust, or resulting trust, for a share of the estate and and relied on the limitation periods under section four the real property limitations Act, which gives you 10 years to make such a claim. Well, at appeal, our firm was privileged to enough to be able to argue the as interveners in this case, so we were directly involved in decision, and the deceased appealed the decision. The state trustee appealed the decision of the motions judge. Interesting again, of the litigator the motions judge was elevated to the Court of Appeal soon after that Judge invented their decision. So it's, it's you can never get away from your decision, so to speak. So the question was. This what limitation period applies, the trustee Act, or the real property limitations act. She commenced her claim outside of the two year limitation period from the date of death under the trustee act. So she was free proceeding on the basis of being covered. Her coverage was through the real property limitations act because it was dealing with real property. The difference between these instruments is, I mean, these provisions is very important, and Justice Roberts was phenomenal in terms of her analysis. The careful consideration into this decision is a real tribute to it's fun to read. Sometimes these cases are put you to sleep pretty quickly, but this is fun to read. It was clear, plain English, and her analysis was really dead on in terms of at least understanding it, whether it's right or wrong. Is for another day, but at the end of the day she she looked at it and said, Look, we have to apply some sort of a statutory interpretation here. What? What to determine? What is it? Is it two or is it 10 years? What provisions apply here to protect or not protect this claim? And we, they dealt with, they looked at the is in dark, COVID, factors that they consider, an judicial determination of statutory provisions, and she went on to, again, it's a bit of a law school analysis, so it doesn't really matter to me all that much, because it was very helpful if you want to look at interpreting statutes. But she the key was, is that she looked at these four factors, the result is really interesting to me, because the court came up with a decision that basically said the legislative intent behind the trustee act was to go for the shorter period. And one of the key submissions of the Court of Appeal was, do we want a state sitting out there for 10 years in limbo if they are dealing with real estate, right, if you've got real estate assets? So we got some real comfort. The court said, go to the shortest and came up with a really cool statutory analysis process and told us a good reason why. So thank you, Justice Roberts, the last thing I want to say, though, in this case, though, is that literally weeks after this decision, again, it's got to be tough The Court of Appeal in terms of any judges, Fauci of what's going on down the hall, there was a decision called Gomez, and I put it in the Slack channel. I'll put the link to the Slack channel, Gomez versus da Silva, and we'll, when we circulate to everyone these slides, and we'll make a note of this decision as well. But because quickly, that decision came out, literally just soon after, and very similar facts, where it was a fight that was an issue between one child was argued constructive trust against a real estate property and wanted to rely on the real property limitations act. They they tried to actually use the provisions of the partition sale act to get around some limitation periods. Basically, a couple two of the kids got the real property, and the kid that got cut out said, No, I've got an accident. I don't want to get access to that property via constructive trust claim. I have to, and I'm outside the two year limitation period, so I want to go under the real property limitations Act. The court never addressed the role of the trustee act in this case, so the same court, within weeks of each other dealing with a very similar facts, didn't deal with the question, because in this case, the claim was outside the 10 year limitation period, so they didn't even have to go into which this watch limitation period applies here, because they didn't actually get the question of whether the trustee Act applies or not wasn't even raised and so and the court got off this because they said, Well, you're even outside 10 years. The important thing to me is this, like there is some watering down of the Ingram decision, potentially from this decision. So again, I think the court closed the door in Ingram with two years. Is the lead Go, go from day to death, but we have to watch very carefully. So those are my thoughts on that case.

Brian Gilmartin  00:19:06
Thanks, Ian, so we're going to stay in the Court of Appeal, and let's talk about Shannon and aborowski. And in that case, the court provided guidance as to how the discoverability principle in the limitations Act applies to will challenges and whether a limitation period in that circumstance runs from the date of death of the testator. So the facts of that case, the testator had two children, Glenn and Gail, and the testator had executed a will in 2006 in which it benefited both children. The testator then executed a will in 2007 which disinherited Gail entirely and removed her as an executor. Now, Gail did not receive a copy of this 2007 will until January of 2015 which was in her about a year after the testator had died. Despite making repeated requests for it, Gail did eventually. Bring an application challenging the validity of the 2007 will in December of 2016 which was more than two years following the testators death. And Glenn opposed that will challenge and asserted that the application was statute barred due to section four, the limitations Act. Now, section four the limitations Act provides for the basic limitation period of two years since the claim was discovered. Section Five of the limitations Act provides for the discoverability principle of two years as of the date that the claim was discovered, such as when the loss or injury occurred, or the day that a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known. Both of these sections in their application were at the heart of the issue in this decision. And so despite Gail's suspicion that the 2007 will have been executed, she was unable to confirm its existence, nor learn of its contents. And on this basis, the court found that the limitation period did not begin to run from the testators death. And for this reason, Gail successfully rebutted the presumption of Section Five sub two of the limitations act, saying that a person with a claim shall be presumed to have known of the matter referred to in Section Five sub one, sub A on the earliest day which the claim occurred. Now, Gail provided the court with sufficient evidence that she did not discover the claim in the application until January of 2015 which is when she was able to obtain a copy of that 2007 will. And it was from that moment that the two year limitation period began to run. So Glenn appealed, and on appeal, he argued that the Superior Court should have found that Gail's application was statute barred by section four, and again, argued that because it fell outside of the two years from the date of death, it should it should fail. Glenn, at that time, attempted to introduce fresh evidence, consisting of a letter from the appellant's council to Gail asserting that the testator had executed the 2007 will. And so this was really an attempt to show that the discoverability principle ought not to have applied. And Gail was aware of the existence of the 2007 will prior to January of 2015 now the Court of Appeal and its analysis held that the letter did not have an impact on the running of the limitation period imposed by the application judge. The court concluded this on the basis that a mere suspicion of the Will's execution was not sufficient information to commence a will challenge, given the importance placed on the contents of the will and the bequest, and ultimately, the court ruled that the application judge did not make any reversible errors regarding the limitation period issue. And with that, I'll throw it back to Kim.

Kimberly Whaley  00:22:52
So we're going to move cross country a little bit now, to British Columbia, and the court of appeal decision there, in barbarian and white, the court was asked to address the scope of solicitor client privilege as between an executor and a beneficiary and whether that privilege could be waived. So facts. Briefly, Lily, the deceased, died in 2018 her will appointed her daughter Teresa and her son Rick to be her estate trustees and act jointly. At some point, Rick and Teresa could no longer get along or work together, so Rick filed a notice of application to remove Teresa. In the end, as reflected in a consent order, Teresa agreed to her removal as a state trustee, but in as a condition to that, Rick would have to provide a bi monthly accounting of the estate. Soon after that happened, Rick asserted that he and his counsel had inadvertently disclosed privileged documents for an accounting period that ran a period of two years, from 2019 to 2022 and the court found that Rick had indeed waived his solicitor client privilege over all the claimed privileged documents, simply by the agreement and reflection in signing the consent order. But the court did find also that there was no waiver of privilege on the legal advice given to Rick and to in his capacity as a state trustee, and the legal advice included in the legal invoices. So in looking at the criteria for a waiver of privilege, it may be established where it is shown that the possessor of the privilege knew of the existence of the privilege and voluntarily events an intention to waive that privilege, and if that privilege communication or communications were disclosed, the following considerations are then applied to determine if the disclosure was inadvertent or not. So they include whether the disclosure was, in fact, inadvertent, as opposed to repeat. Or careless or reckless, whether an immediate attempt was made to retrieve the documents and remedy the situation, and whether preservation of the privilege and all of the circumstances would cause unfairness to the receiving party. There was an appeal. The main issue again similar, and the Court of Appeal found that Rick had waved his solicitor client privilege by agreeing to the consent order, particularly because the court classified the disclosure as careless and reckless, meaning it was not considered inadvertent. In the court's words, Rick was attempting to use the privilege as a sword by agreeing to do this disclosure pursuant to the consent order in order to become the sole executor, and then also as a shield to shelter behind the solicitor client privilege. Again, the Court of Appeal agreed that the solicitor client privilege regarding the legal advice was not waived. So very interesting decision and helpful, and now we're back to Suzana.

Suzana Popovic-Montag  00:26:07
Thanks, Kim now in the 2024 Saskatchewan decision of Levesque versus claren back the court of Kings bench addressed disclosure requests of an attorney for property and discussed the limits that may be imposed on these kinds of applications to compel disclosure. Here, the applicant sought an accounting from the respondent, who was her sister in the prescribed form under the powers of attorney act in Saskatchewan, and also sought a significant amount of additional disclosure. And for this request, she relied on the inherent jurisdiction of the court as authority. Now, the court found that the respondent had already provided the required statutory accounting to her sister even before the proceeding was commenced, and although there was some dispute about the appropriate starting date for the accounting, the court ultimately held that what was provided was sufficient to meet the statutory requirements in terms of the applicant's request for additional information and documentation. In the court's view, that was quite extensive, and so in refusing the request, the Court held that the applicant could not simply rely on the inherent jurisdiction of the court for such a broad disclosure request. Now, in coming to this conclusion, the court had to determine whether the respondent was required to make the broad disclosure requested by the applicant in light of all the relevant circumstances, and those relevant circumstances included the fact that the respondent had previously disclosed ample documentation for her accounts, that she was that the applicant was unable to point to any evidence of malfeasance or misappropriation of funds, and the fact that the applicant solely relied on the inherent jurisdiction of the court as authority for her request. Ultimately, the Court declined to order the additional information because there was an insufficient basis, it said, to justify the additional disclosure, which was according to court over and above what was required by the statute in terms of the applicant's reliance on the inherent jurisdiction of the court to further order disclosure. The court noted that counsel too often rely on this concept of inherent jurisdiction to support arguments that they can't otherwise articulate. According to the king's bench, the inherent jurisdiction the court is not a panacea in council. Council cannot rely on it to request just any remedy, not specifically set out in statute. It relates primarily, said the court to procedural matters and can be relied upon when it's required to administer justice. Furthermore, said the court it should be used very sparingly in the court's analysis. Having reviewed the accounting that was provided, the applicant had not pointed to any evidence of malfeasance or misappropriation of funds, and as a result, her request appeared to be nothing more than a mere fishing expedition based on vague assertions and many assumptions, said the court. Now, according to the court, the applicant seemed to have brought the application as a result of her belief that her father had far more assets and funds than what appeared in the accounts, likely coupled with a difficult relationship with her sister like we've never heard that before, but the evidence before the court simply didn't support that belief, and as a result, the court concluded that the disclosure requested by the applicant was far reaching and unreasonable in circumstances. And really this serves as a good reminder to us that sometimes good enough really is good enough.

Ian Hull  00:29:39
Thanks. Suzana, I'll I'll turn to the Drennan decision. It's justice Meyer's case in Ontario, and I think it's a good one, just to give context to an important aspect of the practice, and that is on the solicitor side, warning clients about costs, and on the litigation side, consequences. So in Drennen, the court. Was faced with an application that the daughter brought an application to remove her brother as the executors, trustee. So that's a removal application. There was allegations of conflict between the siblings unequal bequests. Some of the motivation behind it isn't as important as what happened during the process. So during the hearing of the motion seeking the removal of the state trustee, the respondent state trustee was self representative, failed to file this materials. Now I just pause there. In Ontario, we have rule 15 that should enforce, should be more enforced, in my view, by the courts a little more vigorously that requires fiduciaries to be represented, so notwithstanding that this fiduciary kept going with litigation on an underrepresented basis. So we've got managing costs in the States. We've got unrepresented litigants and unrepresented fiduciaries, not an impossible scenario to see in our courts, unfortunately, but some we have some room to move in terms of protecting it. But throughout the proceedings that citrus either responded, ignored court orders, caused delays the applicant, the sister, was forced to take loans in order to proceed with the litigation, and there was evidence that, you know, the lack of administration was causing her financial stress in that way, the loans were used solely to fund the application. So it was attachable, really typically, to the litigation itself, but also to the behavior and the court awarded interest on the applicants loans as a disbursement which was which was interesting, and looked at some of the basis upon which they should award it. So the court was asked, do it, you know, is this a substantial indemnity award that should be provided here, given the respondents actions and alleging as being an abuse process, all of these kinds of difficult pieces of litigation we see, not all, but lots of times in our practice. And so it wasn't an unfamiliar set of facts that was going on here, and the court ordered costs relating to in part of the fight on a substantial indemnity basis, but the court was specifically looking on on the question of, what, what? How do we deal with the loan interest? So the sister had to go borrow money through a litigation lender, I presume, and had interest on the loan. And the court stated that proceedings found that the proceedings were to an abuse of process. So you have to have the necessary facts to hit that ring that bell, and also labeled it sort of a scorched earth litigation. And I sort of chuckled, because I can't imagine many, many cases that the four of us litigate. You feel like you're in scorched earth. And how do you ever hit that ring that bell is always a difficult barrier to finding in it. But in this case, justice, Myers went right at him and said, The Thing of the respondents can't legitimately do is ignore steps. They can't require other people to bear costs as a consequence of ignoring those steps, behavior that we see all over time. And so it was nice to see a little sanction against the respondent and ignoring court warnings. Basically, the court found this person was a bad actor. So the decision just helps us give us some parameters as to whether we can go to the court and say this is a really bad one, and this is one that requires a significant cost order against the bad actor. I just my last point on this is that it's helpful. It's always guided by the facts. And it worries me, because when you read this decision, so many of our cases are hitting maybe not that bell, and we didn't have all you know, but we hover just around that level of, boy, this seems like a complete waste, and non responsiveness is feeding the fire of wasteful litigation costs by counsel andor unrepresented. So I say, nice to see a judge step into it, but it's very hard to get their attention at this level. But if you're looking for that kind of level, this case will give you some benchmarks and some parameters and although justice, Myers talked about scurrilous allegations and delay, uh, again, it's hard for me to find a file in my drawer that doesn't have a little bit of that. So just a question of how high up the bar is going to be. So anyway, Brian, let's turn now over to you.

Brian Gilmartin  00:34:43
Thanks, Ian, so look a lot of interesting stuff coming out of these cases. This year, there's been a lot of you know, nuanced issues, and I think there's a lot to take away from them. So let's talk about some of those takeaways, the lessons that we can extract from the decisions that can all. Ultimately assist us litigators in our in our practice. And so if we turn back to the first case, and that was the estate of William Robert waters and Jillian Henry, you know, really interesting case, I think the first takeaway from that decision is the reminder of the importance of proper planning and documenting of a transfer or intention. At first instance, this decision didn't necessarily change the law but but it serves as a caution. If the intention of the testator is not made clear, then the transferee, the person receiving the transfer from the deceased, it could be held to the burdensome task of rebutting the presumption of resulting trust by demonstrating that the transfer intended to make that gift. And so if the file is not properly papered and the evidence isn't there, that is a tall order and a tall task to be taken to.

Kimberly Whaley  00:36:01
And by all accounts, in this case, on the face of it, for those of State Trustees, it looked as if this was a vulnerable taste testator. Now the facts didn't bear that out. But as in a trustee or Co-trustee, you're looking at it going, Hey, what? What do I do here? And what can I employ to try and figure this out? And combined with the facts, seem to read that William was very private, that he he in his relationship with his advisors would be upset if they were too stern with him, or they directed him in a way that he didn't agree. And so that would was obviously a very difficult client in terms of the papering.

Brian Gilmartin  00:36:43
Yeah, yeah. And look, the practical reality, you know, not to beat it, of course, it's, it's really the the evidence of intention used by the parties that that's often derived from the drafting solicitors and the financial advisors. That's really, you know, home base for that evidence, and it just didn't bear out here. And lawyers are often reminded of their duties and should adapt best practices such as keeping clear and contemporaneous notes of any discussion regarding the transfers, because this is really where it can come back and cause big problems.

Ian Hull  00:37:19
And two, Brian, yeah, you know, in terms of the takeaway too, I think it's one of those cases that it's long because it was a lot of facts. So, you know, this is a good judge who wrote a good decision but had to struggle with competing set of facts. That would have been tough for a judge, but you imagine for the litigators to corral in. And one of the themes that you see on these cases is, first of all, the law is straight as an arrow, right? I mean, McNamara decision and all of his supporting what the thresholds frame and Smith, all the threshold tests there, so the judge didn't have to go create new law. But an underlying theme that I could see through this decision was the widow wins and and there was, it was, I think that judge must have struggled with that and justice. Listen, 100 years ago, told me that in court, open court, many times the widow wins or the spouse wins and the surviving spouse wins. And it was really interesting how the courts, you see this theme being picked up by the courts a lot, and that is, no matter how hard you try, you're going to need to resolve sort of foundational elements of any relationship. And if you've got a widow floating out there that isn't supported properly in the mind of the judge, they're going to find a way. And I think that this judge, quite properly found a way with were very awkward set of facts. And as you say, Kim, you know, if you glance over this, if you read the book by the cover, you can pre judge this pretty quickly. But as you start to read this, how the facts unfold, you realize that it was a relationship of a serious relationship, the girlfriend, and it was something that lying with the judge found that. But, I mean, it was something that you couldn't ignore that. So I really like the decision to teach us some themes as to how to manage our cases, too. And that's one of those things.

Brian Gilmartin  00:39:22
Yeah, that's interesting. And there was a, there's a good bit of analysis in there too, about how a court is going to give, you know, deference to the autonomy of the donor, even if those decisions are controversial. And again, you know, easy to, you know, to read the facts of first instance and jump to some, you know assumption, assumptions and conclusions, but you know the decision proves that it's a transfer. May do what he pleases with his property, but when litigation ensues, the intention of the transfer must be, must be clear, and that's that's really key. And the court must balance these transfers against the legal presumptions of bargains and gifts and. Right? And I guess just one other takeaway too. I mean, we were talking about, you know, testamentary intentions, but if we're not dealing with that, but you know, gifts during lifetime, in survival transfers, we also need to remember deeds of gift. It's a reminder that recommending that to a client may save a lot of expense and hassle and conflict. A deed of gift, it acts as evidence to show the intention, and it's a tool that could assist or go some way to resolving some of these issues.

Ian Hull  00:40:35
It's so true, you know, and I always get grumpy as a litigator, and I get a file, and you know that a deed of gift might have closed the door to the claim, or vice versa when there's no data. Gift, I'm clapping. The other thing about this case is, you know, the volume work in this area, as we all know, is growing, and the stories are sometimes worthy of attention from third parties like the media. And this was a tough one too, right? The all council had to struggle with the fact that there was a Toronto Life article out on this before the decision came out, and it was just a good lesson. I mean, I know all the Council on that, and they had to, they had to be very circumspect about how they managed that, and they all did a terrific job. But we have to be aware that if we get approached by the media on these cases, especially on a case like this, where, as Kim, you said on first blush, you could really maybe misread some of the behavior. And you see it all the time with predatory marriages, Kim, in your cases, where you've got a situation where maybe it isn't so predatory, maybe it is very difficult, but if you've got a story to tell or a fancy name involved, we as lawyers are now more and more having to manage the media, and everyone has their own techniques. I typically am not very adept at it, and try to stay away from it when it comes at me. But I don't know what Kim yours and Brian or susannas experiences with the media. That's a that's something that, you know, there's a case that, on the face of it, was relatively modest in size. I mean, this wasn't a famous Toronto family in that sense. So the media grabbed on the story, not the money. I mean, it's not the name. And so I don't know what your practice is over your firm, but Kim, I know ours is we get it's dealing with media on almost any file connect can occur.

Kimberly Whaley  00:42:31
Yeah, you have to be careful. Of course. I was interviewed for that Toronto Life magazine article, but I wasn't told it was in respect of this decision or this case or this like I had no idea it was quite independent on concepts and and so that was surprising. In the end, how they use the interview can contextually. So yes, I think now Suzanne is going to talk about another takeaway.

Suzana Popovic-Montag  00:43:05
So the takeaway that we can take from the inadequate, just state decision. I guess the reality is this decision does not necessarily change the landscape of location, but it does serve as a reminder to us as to drafting lawyers that we really do need to be extremely careful and accurately documenting our clients instructions and their intentions, and it also underscores the importance of creating and keeping contemporaneous notes during the entire will taking process. In order to avoid litigation, we're going to want to ensure that our clients will accurately reflects their intentions, in order to prevent any conflict either between or amongst beneficiaries down the road, and in those cases where a will doesn't we also want to be aware of the fact that the court does have this equitable power to rectify a will if it's proven that the will was not drafted accurately, to set out the testators actual intentions.

Ian Hull  00:44:05
So I just want to, I'll come back to my takeaways a little bit from my first case in the limitation period, when we had the, as I said, the privilege of arguing this. And one of the things that my partner, Doreen and Co-counseled on this with me was very helpful. Was we sat down before we argued this, and started to put different variables into the analysis to see what damage might be done if we limited it to 10 less than 10 years. What is going to be the impact of the two year limitation period? Easy to say, oh, we'd like to administer states faster, but what damage might be done from other scenarios, and we've got an interesting scenario in the chat about that too. There are all sorts of variables here, and that's why you refer to the Gomez case, because in that case, I think part because the trustee act wasn't brought to the attention of the court there, the analysis may have fallen the same way. But the idea of limiting periods of time like this, it does have us has does have a major effect on equitable claims, right? I mean, remember, this is an equitable claim, and you know, the courts are very firm, and have been very firm since justice Greer's decision and giving two years to limitation periods, Newberger to will to do a will challenge some limitation of discoverability, which I really like that point, Brian, that you've raised in that court of appeal decision, they're going to give you a little bit of room, not going to give you 10 years, but if you're you can't sit on your hands either. But I think the Ingram decision really keeps us focused, and that is, you know, from a practice standpoint, presume date of death plus two years. You might get lucky with discoverability, as Brian described. You might get lucky with somehow getting outside of the into the real property limitations act only because there may be a little, tiny window that's still left with the Gomez decision, but it's not the way to practice, and it's not the way that gets good sleeps at night. So that's, that's how I came out of that case.

Brian Gilmartin  00:46:13
So staying, staying in line with that, with that, you know, discussion looking at Shannon and abroad. My first case, you know, it's a reminder, clarification to lawyers that the discoverability principle found in Section five, it applies to estate claims, right? And so it's first came out in Grant Thornton in New Brunswick, the Supreme Court of Canada decision reaffirmed in this case, once a claim has been discovered, there's a two year period that the proceeding must be commenced, otherwise it'll be statute barred. And again, in this case, in the court of appeals opinion, it is unreasonable to start a proceeding such as a will challenge without knowing the Will's contents and the bequest. That makes sense on a high level, you don't know what you don't know if you don't have it in front of you, how could you ever possibly, you know, go forward. Go forward with your best foot forward on a claim, and having your suspicion that A will may have been signed and what it might or might not say that's not enough to trigger the start of a limitation period to, you know, to start the time in which to bring your claim. But with, with that said, I mean, it's, you might get it right, as Ian was saying before, it's, it's a bit of a difficult balancing act. I mean, I don't know what you guys think, but we've, it's been so ingrained, at least into me, that the two years from day to death is it's always in the back of my mind. It's always tickler, it's always Tickler. It's always there. And I think you got to be really careful in how you go about this on a case by case basis.

Suzana Popovic-Montag  00:47:48
I agree Brian and I also think, you know, we see many times where our clients are particularly turning to us and hesitant to provide copies of wills to people who are not named in the world or who have no financial interest in the state. You know, technically, the rules say they don't have to be provided with a copy of it. But the practicality is that the sooner they know that they're not in the chips, probably the better for all of us. And you know, we have to let that feeling of entitlement, perhaps in these these cases go and just let them know that if they're going to do something, do it now, and we're going to have deal with it, whether we do it now or we lay in the weeds, might as well face it earlier rather than later.

Ian Hull  00:48:29
Yeah. I mean, basically lets the clock tick on, doesn't it, if you do it. I mean, there's obviously lots of illustrations where you don't want to but on balance, you're right. Susanna, but just get it out there. And they couldn't have gone around in your case, Brian, they could not have got around if they'd seen a copy of the will. I was involved with a decision called Virtu years ago, decisions, it's not not Court of Appeals, so it doesn't matter, like your case does, in the sense that this clearly sets it out now, but it was the same problem, and the will was produced like, two years and a month after day to death and limitation period. Well, they've said discoverability, and in that case, it was probably the right answer, because it was a month, and that's seriously but you're right. Like Susanna, why not just get the bell ring it and see where it goes? And that's obviously an overstating. There's some nuance into that, but that's certainly a really good point.

Brian Gilmartin  00:49:22
Yeah, no, it's interesting. And then if we look at barbarian white, so this is an interesting one, because I think, you know, there were some tactics here with respect to the consent order for the complete estate accounting that I think could be interpreted as backfiring in the circumstances, but just if you think about this decision globally, I mean, it's a reminder to to us lawyers that you really gotta think carefully about the implications that come along with these broad stroke orders, accounting orders that go through on consent. And it. And whether or not in the circumstances you need goal posts there to to protect yourself and protect the solicitor client, privileges between you and your client. Remember that in this case is that the estate trustee was to provide a complete estate accounting. It was consented to. That's not all that unusual. But again, you can't, you can't use the concept of solicitor client privilege as a sword and a shield to kind of finagle your way through it. I mean, in this case, they the court was clear that it was expressly waived by virtue of that consent order. So I think you just really got to give that some thought and and be careful.

Ian Hull  00:50:39
But you're right, Brian, in a sense, like, obviously they played too cute in the courts. Mind on that, but Suzana, like, the question is so strong, Privilege is always one of these interesting things. Like, we know it survives death, but what are your thoughts about how it's managed just generally? And that, what's that old decision from the 20s and allows What are you doing? Someone comes in to see you, does a will. What's the expectation of a lawyer at that point? Is the solicitor client privilege attaching at that moment in time? Or how do you deal with that once they're dead?

Suzana Popovic-Montag  00:51:12
Yeah. I mean, I think that's an interesting debate. I mean, there certainly is an exception to the solicitor client privilege. The will is exception. We call it. That goes back to a very old case where there is this expectation that if you're retained to prepare a will, that document is not meant to be kept in your file and never produced. It's meant to be produced and relied upon by the state trustee to administer the estate. So there's an exception to that strict rule where we can't say anything that's in our file or deal anything in terms of our retainer.

Ian Hull  00:51:46
Sorry, we're getting a little feedback. Not sure why, but, but the other part too is, Kim, you always, you did the model order for the court with a group of us, and it's, it's solicitor client privilege in the orders, but the duty of confidentiality too, right? And, yeah,

Kimberly Whaley  00:52:03
And the duty of loyal, I think we can include as well.

Ian Hull  00:52:07
Yeah, tell me your thinking on the duty of confidentiality part in the form of the standard form orders in Ontario we use, we always say we can waive the privilege and the duty of confidentiality. Why do we need both? In your view.

Kimberly Whaley  00:52:23
I think to protect the lawyer. I mean even the Rules of Professional Conduct say that we have to hold information disclosed by a client with confidentiality and with the duty of loyalty. And so I think we want to make sure that when we disclose our file, that we're we're covered, that we're not doing something offside any of the rules, and that we're authorized to provide the file or documents that have been requested without reprisal.

Ian Hull  00:52:58
Yeah, you know, it's such a good point, because, like the common law says solicitor client privilege survives, goes to the executive order, except if the will is being challenged, or their authority is being challenged, right? So the other part of it is, of course, our ethical obligation of the duty of confidentiality. So if you cover off the common law piece with a solicitor client privilege, waiver any orders and a duty of confidentiality. Nobody can say you've reached either your regulator or the common law. So I get that's a good point. Kim, I'm not sure whose next takeaway is running on.

Suzana Popovic-Montag  00:53:35
Next takeaway would be mine, and that is in respect of the Leveque decision. I think this case really serves as a caution to us as lawyers that we shouldn't make the mistake of relying on inherent jurisdiction of the court when we're making disclosure requests to fiduciaries that go way beyond what is typically entitled to, or what we would be entitled to pursuing to the statutory authority. So for instance, there still has to be some proof of malfeasance or misappropriation of funds to merit something more, a more extensive disclosure request. And as officers of the court, we really do need to set out and rely upon the underlying authority for our requests, whether it be evidential or legal, and we need to set out what it is that warrants this additional disclosure in the circumstances, and if we fail to do so, then it may be that a court is going to find that our requests are in quotes, you know, nothing more than fishing expeditions, and potentially, you know, drawing adverse cost consequences against counsel or the parties as a result.

Ian Hull  00:54:39
So I think mine's one of the another cost is the final draft. Again, you know, I think it's just from my perspective, the courts are going to scrutinize costs. The taller Cranston decision is another one where the court looks to behavior, but proportionality. The. And in case, had spicy facts on proportion, on behavior, but in non responsiveness. So you've got sort of three categories. If you cause the problem and cause the other side to increase their costs, you're going to pay for it. If your behavior is inappropriate, ignoring court orders, you're going to pay for it. And in the current telegrams, in case, and I'll add this to our list when it goes out, proportionality drives the quantum and and so if you're acting in a disproportionate way in the context of your size of the estate, that's going to drive a cost order one way or another. So I keep those three factors in my mind, and always watch out for costs. Gone are the days that my father got to practice where costs always came out of the estate. It's been a hard time since then, times have changed.

Kimberly Whaley  00:55:49
Okay, so that leaves me with wrap up. And so just in concluding today, it seems that the cases of 2024, there was a bit of everything our courts were addressing, I'm going to say quite a few, few appeal decisions in estates and trusts. Limitation decisions had been silent, I think for a few years, they were numerate and a reminder that limitations must always be known, thought about, prioritized. Ticklered, as Brian indicated these decisions should also remind us that the job of the lawyer in advising a litigant client really has to include clear warnings and risks, pros cons, concerning unexpected outcomes and potential cost consequences. Not very much said about mediation in any of the cases, although there were in some of the power of attorney cases, obviously it should always be considered. And I'm going to say the earlier, the better conduct, including abuse of process. We saw fishing expeditions in quite a few cases, actually, especially the power of attorney cases of 2024, scorched earth, litigation is not only increasing the as a key factor in the cost treatment and consequences, but it's also increasingly not well tolerated by our courts in the substantive outcome. This makes sense because we deal with extremely emotive proceedings where the heart and passion can lead to the absence of reason and rationale. And just one further note on cost, and I say this all the time to my colleagues, I'm always met with some opposition, but if we go back, it's still within the year. But it's a 2023, decision of Adam and Adam. It'll be put in the chat and added to our PowerPoints when we distribute it. This is the decision from Ontario. It was just a SAN Filippo. It involved an application commenced to remove two attorneys for personal care and then, of course, a guardianship appointment. It was lengthy. There were complicated facts. I'm not going to go into any of them only to say that the applicant was successful and sought full indemnity costs against the attorney that was removed, but not from the incapable person. And Justice San Filippo awarded the applicant a portion of the cost claimed against the attorneys who were removed and ordered full indemnity costs of the section three Council. But importantly noted that the applicant didn't seek costs against the incapable person, yet justice Sanfilippo would have been minded to award those costs on the basis that he viewed the application as entirely for the benefit of the incapable person. So the moral of the story is, in all of your court proceedings, if you have the fine foundational components to support an elevated cost order, then ask for it. What's the worst that can happen? A resounding no. So it's important, and I you don't ask you don't get and so with that said, I'm not sure if there are now any questions. I think we seem to answer them along the way. So I think that subject to Suzana and Brian Ian, is there anything else you wanted to add?

Suzana Popovic-Montag  00:59:17
No nothing on our end. Kim, thanks very much. Brian.

Mallory Hendry  00:59:21
Oh, great.

Kimberly Whaley  00:59:22
That concludes our webinar today. Over to you, Mallory,

Mallory Hendry  00:59:26
Thank you so much, Kim. Thanks to all of our speakers today for sharing their expertise with us, and to everyone in the audience for being here with us. Keep an eye out for more upcoming webinars, and please enjoy the rest of your day. Thank you.