Legislative changes, recent caselaw and how the world is catching up on estates

This article was produced in partnership with WEL Partners and Hull & Hull LLP.

Kimberly A. Whaley and Ian Hull are joining forces once again to bring their insight and expertise to several recent developments and current trends in estate claims.

“These update-type seminars are always helpful: we hit on a series of developments in the law that have come out of some innovative legislative changes and recent caselaw, as well as discuss how the world is catching up on estates,” says Hull, co-founding partner of Hull & Hull LLP. “Some of the electronic and digital aspects of the practice are being forced on estate practitioners so we also want to cover an array of those recent developments.”

The Contentious estates update webinar is coming up on May 18, and one of the issues to be discussed is capacity to marry. Whaley, founding partner of WEL Partners and one of the leading practitioners in this area, will provide her insight into the legislation, emerging trends and the impact they’re having.

“We’ll be considering the recent legislative changes that have occurred in Ontario and benchmark them against how they’ve been considered in other provinces,” says Whaley. “We’ll also look at the developments that have come out of the enhancements in the legislation to reflect a more modern approach to the question of capacity to marry.”

Ontario has triggered changes in another area that’s having an impact across Canada, and in some respects has already been tested: admitting testamentary documents that don’t meet the formal requirements for a will. Even 10 years ago, Canadians were signing wills that didn’t meet the rigid requirements, “and those wills took a fatal blow,” Hull says.

Over the last decade, most provinces have adapted a less restrictive set of rules and the webinar is going to look at some recent cases that have talked about this, including where suicide notes were in the form of a will, and discuss the emerging trend of courts across the country stepping in to essentially cure technical mistakes.

While capacity to marry and the admission of testamentary documents that fall short of requirements are two big changes out of Ontario recently, the province is actually just finally catching up with the rest of Canada.

“We have the ability to use Ontario’s new legislation with the teachings from the other provinces, in particular British Columbia and Alberta who are way ahead of us on some of these changes, so we have a sense of how they’re being treated by the courts,” Hull says. “We’re going to highlight them for Ontario practitioners as to how it might unfold here.”

There will also be a forward-thinking discussion around the use of electronic wills in Canada, a topic jumpstarted by the COVID-19 pandemic. A shift to remote processes for almost everything has provided a lot of freedom to consider something like electronic wills and whether they’ll be value, though it’s speculative given the legislation hasn’t moved that quickly – or at least not yet.

“Societal changes are forcing legislators to reconsider that option and allow some parameters where an electronic will could prevail,” Hull says.

Over the 2.5 years of the pandemic, elder abuse has skyrocketed and it’s worth exploring how the courts have been dealing with that issue. The webinar will look at situations from a practical standpoint: when can you get self-help remedies? What types of remedies are available? What developments are seen in some of the caselaw? Across Canada, courts have been more attentive to the issue “because truthfully they had to be,” Hull says, adding elder abuse is the largest growing area of the practice in trusts and estates and elder law.

While there have been recent decisions on the issue, there hasn’t been much legislative change, though Hull and Whaley have been working closely to put proposals to the Attorney General of Ontario to develop better and more apt legislation.

“We suspect, this being an election year, it won’t be a high priority but depending on what government is formed next time around we’ll be at their door,” Whaley says.

Finally, the duo will highlight the question of costs and how it’s being allocated within contentious estate litigation matters, both from an Ontario perspective and Canada-wide, looking at cost consequences and the impact of costs on litigation generally. There are a couple of big developments in cases where the courts have been thoughtfully very helpful in setting the parameters of when costs can be used as a tool against a litigant who is proceeding in a reckless way.

Hull calls himself a big fan of keeping up to date with developments, and says whether you’re in court or not, it’s best to know what’s going on both on the solicitors’ side and the barristers’ side.

“There are lots of practitioners who don’t go to court every day – but everyone has to deal with the fall out of what the courts are doing in the context of these issues.”

To hear more from Kim and Ian, and to keep your finger on the pulse of change in this rapidly developing area of the law, sign up for the webinar now.