Discover current estate litigation trends and issues
Watch estate litigation experts Kimberly A. Whaley and Ian Hull as they share recent developments and current trends in estate claims, including a cross-provincial breakdown of trending case law and legislative changes.The session will cover issues surrounding the capacity to marry, the admission of testamentary documents that don’t meet the formal requirements for a will, the status of electronic wills, dealing with complex cases where elder abuse is alleged, and addressing litigation costs and whether the estate should pay.
Mallory: [00:00:01] Hello, everyone, and thanks for joining us today. I'm Mallory Hendry, content specialist for Canadian Lawyer magazine, and I'm happy to introduce today's webinar Contentious Estates Update. As you know, we have two great speakers with us today, Kimberly Whaley, founding partner at WEL Partners, and Ian Hull, co founder of Hull and Hull LLP. And over the next hour, they'll delve into recent developments and current trends in estate claims, covering everything from case law and legislative changes to issues around capacity to marry, the status of electronic wills, and the rise in allegations of elder abuse. At the end of the presentation, Kim and Ian will participate in a question and answer period. So be sure to type any questions you have into the Q&A box within the webinar software. I'm going to turn everything over to the experts now to begin the presentation, so please take it away, Kim. Ian.
Kim: [00:00:53] Thanks so much, Mallory and Ian and thanks everyone for joining us today. Ian I have I'm going to say maybe four main updates for everyone today. We're going to look at cost orders, correlative to conduct in litigation. So specifically conduct testamentary documents that don't meet formal requirements, evolving treatment of elder abuse and predatory marriages, as well as the revocation of will legislation. And lastly, digital developments. So let's get started. I think it's readily apparent to everyone that estate litigation claims have exploded recently, so much so that in Ontario at our Superior Court of Justice at Toronto will soon have a fully dedicated estate list. I think that's going to happen in September to meet the demands of this type of litigation. We know that estate conflicts are exceptionally fueled by emotion and often involving bitter financial disputes. And we know that from our law, our lawyers, professional indemnity insurer. In 2018, they reported real growth in the number of will in estate claims, reaching about 12% of all claims. And just two years later, 14% of all claims. And we know that our most recent census in 2021, the number of people 85 plus has more than doubled. More than 20% of our working age population is now between the ages of 55 and 64. And there is an interesting investor line study done by BMO and they found that the financial factors motivating estate claims were emphasizing the emergence of the largest intergenerational transfer of wealth in Canadian history from those born in the thirties and forties to the baby boomers with an estimated $1 trillion that will change hands in the next 20 years. So that's significant. Notably, we're going to look at some of the succession legislation in Canada. In B.C., the Wills, Successions and Estates Act allows adult children to make a claim against their parent's estate, such that if there are sufficient assets in an estate, the court can order provision for disinherited child based on a moral obligation. And notably, this is a lot broader than our Ontario Succession Law Reform Act dependent support legislation. And then I want to look at a couple of recent cases that if you see in any event, which are kind of representative of the sorts of difficulties that we're seeing with succession and inter family conflict during life. So one of those recent cases is it's from 2022, it's a Sandwell and Sayers case. In this case, there was a 91 year old father who brought an application to get back $464,000 from a mortgage put on his home by his adult daughter. This was his youngest daughter who was a realtor, and she had him transfer title into joint tenancy. So in Ian's office, in my office, we see a lot of this transfer of real property into joint names or out of the name of the actual owner. And so this led to this sort of litigation, I think is on the rise. I'm just going to say, although I'm not going to talk about it today, this case is Sandwell and Sayers is also notable because it touches on the prospective place of the doctrine of unconscionable procurement as an attack on gifts in B.C. and all the B.C. courts said that perhaps we have the probable cause on this. And there was argument that other sorts of remedies, like the resulting trust, were the modern day equivalent of it. I just I think when you look at this case, you'll find that really unconscionable procurement. Doctrine just wasn't made on the facts of that case. But that was an aside. I just I thought it was notable given the development of unconscionable procurement. So one other decision, the review case, this was a case where the court had to decide amongst eight petitions for declarations of incapacity for Mrs. Use and orders requested to sell her house and who should act as committee. There are allegations of elder abuse amongst the eight petitions the Public Guardian and trustee and BBC investigated. They oppose the application. They filed respondent materials, and it was determined that the children had in fact received and accepted gifts from Mrs. You, totalling about just under $1,000,000. And the Court ultimately appointed the public guardian and trustee as committee. Again, these cases are representative of decisions we're seeing across Canada, in spite of differing legislation and including a rise in disputes over powers of attorney and guardianship and litigation in the life of the person. Which is similarly, I'm going to say, as bitter, if not more bitter and expensive. So it's under this lens that it seems most fitting to re-examine our cost consequences in the light of the current litigation clients. So cost award developments addressing conduct in particular are on the rise. We know a few years ago in Ontario, at least in the Salter and Salter decision, we had our Justice Brown, who scolded the parties for treating the assets of an estate as a kind of ATM machine in his in his words, for which withdrawals automatically flowed to fund litigation. And he described the need to bring discipline in contentious estate claims, expressing an even greater need exists where we should be, the courts should be imposing the discipline of the loser pays concepts so that there is reasonableness in the outcome of these cost decisions. And so for the most part, we, however, know that courts tend to follow the endemic indemnification principles. And I think that's true, whether fully or partially, to compensate a successful party for expensive litigation, for the expense of hiring a lawyer to defend or enforce legal rights. And we know that our Supreme Court of Canada, in the decision on the PowerPoint, reaffirmed that the traditional purpose of costs awards remains indemnification. But there are other governing principles which apply. And so it's a balance. So, for example, in the Fellows Mcmeel, Kansas General International Insurance Company case, the Court noted that the purpose of cost awards also includes the encouragement of settlement prevention of frivolous and expensive litigation, and the discouragement of unnecessary steps in proceedings. And we also know that in the Neuberger case of 2016, the court looked at cost orders and said that they, of course, need to be fair and reasonable in all of the circumstances, and that due consideration has to be given for the reasonable expectations of the parties. But also noted and brought back in just as a reminder, the historical practice in England to award costs of parties in estate litigation out of an estate where the issues that arose came from an ambiguity or an omission in a will or related to test theater conduct and where there were reasonable grounds to call the validity of the will into question. So we know that cos orders or awards have evolved to encourage a moderate approach and similar to the loser pays approach in civil litigation. Still, inherent public policy considerations do play a role where ambiguities give rise to the litigation, where they come from the testator either wholly or apart, and also to ensure that an estate is properly administered. So when balancing this public policy and the determination of fair and reasonable cost awards, courts have also said that it's appropriate to make blended costs awards. We saw that in Neuberger, and we also saw that in the recent decision in Ontario and the growth and joy, I think it bears reading out what the court said there. And I think it's a little confusing, although I don't see that it changes the already established approach. But I'm going to read it. It the approach is not a balancing of the public policy considerations against the rationale for cost rules ordinarily apply to civil litigation. Rather, it is a sequential analysis, the first step of which is to determine whether one or more of the public policy considerations apply, and, if so, the parties reasonable costs should be payable from the estate. And any departure from this principle requires justification on the part of the court. So I really I don't know about you, Ian. I don't see that as changing anything. I think it's always for the court to look at what's fair and reasonable and that we expect a rationale for findings of our court in this regard. I'd be interested to know, though, do you think there is do you think this changes anything, the decision?
Ian: [00:10:52] Yeah, it's a really good question. And I think there's an important trend that's developing here and that is and it comes out of this, the historic approach. I mean, it's a the McDougald decision of the Court of Appeal where they emphasized that it's not a loser pay approach has to be considered, but it is not the only option in estate litigation. And I'm seeing in McGrath is a good illustration and Neuberger I think is the is the classic splitting of the hair. But I'm seeing a trend in the cases to reflect the fact that the reality is, in my view, having seen a few of these over the years, is that 90% of cases that are involving a wills fight are deeply embedded, having been created by the person who's dead. And and, you know, to sit the judges, to sit back and say, you know, always costs out of the estate, no, that's not the right approach. But to be able to analyze it carefully and look at it and you're identifying all of this, I think the important cases that are are really illustrating that this sort of harsh, always loser pays approach is going to prevail.
Ian: [00:12:06] It was kind of the last ten years or the last 15 years. Judges were starting to do that. And I think it's backing off a bit, and I think it's the right thing to be doing. I'm sure that judges are anxious to keep costs out of the estate approach, away from the psyche of litigants, because that, of course, might encourage the litigation to continue. But at the same time, when when push comes to shove, at the time of decision, the courts are backing off and sort of looking at it carefully and saying, you know, who's really at fault here? And is there a real hammer that should be laid down now in the right cases? Of course there should be. And we're going to identify some of those. But I do think we're we're seeing a trend and we're also reflecting the reality that 99% of these cases settle and at mediation. And a big part of the settlement is funding that typically comes out of the estate. That's just the reality. So it's sort of all kind of coming together with a bit more of a balanced approach to costs.
Kim: [00:13:12] Right. So in terms of jurisdiction, it's important also to recognize that costs are a feature of statute in our Section 131 of the Ontario Courts of Justice Act. Discretion is afforded to determine costs by whom and to what extent they'll be paid. And also our rules of civil procedure. The same thing. The court may make a cost or fix an amount, a percentage, or rather that no costs at all be awarded. And so a percentage of cost is usually determined by a set cost grid under the rules providing for partial and substantial indemnity costs. And then looking at circumstances where it might be appropriate for substantial indemnity costs. We know from our rules it is appropriate, at least in to situations, and that's where there has been an offer to settle under Rule 4910 of the rules of civil procedure. And in that section, costs are explicitly authorized in that circumstance and where the unsuccessful party has engaged in behavior worthy of sanctions. So on that note, we also see that sometimes full indemnity costs are requested. And generally, I think the trend is that if there's a finding of fraud, it may justify a cost order on an elevated scale. But courts are looking at reprehensible, reprehensible, scandalous or outrageous conduct. And the court still has to consider the overriding principles that, of course, a cost order has to be fair and reasonable, and it has to consider the reasonable expectations of the party and the unsuccessful party. So in B.C., it's interesting to look at their concept of uplift costs, and that is for a recognition of the possibility that unusual circumstances might make ordinary costs grossly inadequate or unjust. And so the courts there have said the assessment has to not just be based on a comparison of actual cost, but rather the conduct of the party.
Kim: [00:15:26] So then we say, okay, well, how do we know what a court is going to do? Are they going to determine full costs or substantial indemnification? And so the case on the PowerPoint there based fruit and bows is interesting because the Ontario Court of Appeal is the decision of the Court of Appeal, and they have signalled that there has to be an important constraint, recovering costs on a full indemnity basis, at least in respect of an appeal. In that case, the appellant was seeking full indemnity costs in a dispute where the will in question was signed after the testator passed away. So obviously that's an unusual circumstance. The court in that case looked at the caution expressed in the decision of Net Connect Installation Inc in Mobile Zone and said this, which I think is worth reading. A substantial indemnity cost is the elevated scale of costs normally resorted to when the court wishes to express its disapproval of conduct of a party. It follows that conduct. Really, a sanction would have to be especially egregious to justify the highest schedule or scale of full indemnity cost. And just before I leave costs and I just want to say to I notice yesterday on LinkedIn, the Ontario Superior Court decision and Switzer and Switzer now this is a family law case, but the court in determining costs, found a failure to serve. An offer to settle is itself unreasonable when looking at conduct. So like you said, we are seeing a trend and I think it's important to stay abreast of the trend. With that, I'm going to hand over to Ian.
Ian: [00:17:08] Thanks, Kim. Well, you know, it's interesting. On the on the question of serving offers to settle, I've found them to be sufficiently unhelpful over my career, in a sense. And once you get to the trial and your or the hearing and it's almost as though, you know, the judges don't really take them as seriously as you hope they're going to take them during the process. But, you know, the impact of the offers are important throughout the litigation. And it's just a bit as all with randomness of costs is that whether the judge actually takes them as an ability to sanction the other side or not sanction them is a real crapshoot. I find it's sometimes completely ignored and you sit there going, Well, look, I did a request to admit, I did an offer to settle. I did this, I did this. And they're still like, I don't care, I'm doing this. But that being said, I think the question of cost is, is so it drives so much of the litigation process in a particular state litigation process. So this looking at trends is really helpful in my view. And also looking at sort of the the leading cases squadron is another one that talks about costs being paid out of the estate. It's easy to find an illustration of where costs should not come out of the estate, but it's also equally easy to find where it should and therefore comes back to the whole question of the wide discretion that's available when determining costs.
Ian: [00:18:40] The you know, when you're getting more granular on looking at the question of costs, I'm just going to go through a few cases that talk about what the courts looked for. And I guess, Kim, I'm sure you found the same is that it's very hard to know what the judge is going to hang his or her hat on in terms of conduct. But conduct really does drive the conclusion. And so, you know, you can be litigating a case and dealing with a tremendous amount of the facts and circumstances and thinking this is a fact that's going to, you know, lead the decision or this is a fact that's going to really matter. This is my smoking gun, so to speak. And then you find out at the end of the hearing that you guessed totally wrong on what the judge was going to hang their hat on. But the estate of Felice Pepito is a good starting point to just sort of start to look at what what the courts, what conduct and the context of the nature of the dispute and what kind of conduct did the courts get hang their hats on in this case, just as Dunphy talked about the concern that he found was the conduct of one of the parties who he describes as driven by spite and venom and antipathy and and the animus that was demonstrated by that one one of the parties to the litigation. The judge goes on to say, you know, this was vicious and entirely unproven personal attacks made for her. And it was just conduct that this, you know, doesn't come up to the level of fraud, but it comes back to behavior. And, of course, there's behavior before the litigation and there's behavior during the litigation that can drive these costs decisions. And the second aspect of what Justice Dunphy sort of commented on was that looking at the role of self-represented litigants and generally, you know, they're going to be somewhat higher observations in terms of their conduct and so on. And and of course, we all know that when we're in court dealing with self litigants, that obviously the judges are going to be respectful of that and typically bend over backwards in some ways to accommodate the fact that the self represented a litigant isn't hasn't got the legal services around them. But at the end of the day, in that case, again, that Justice Dunphy, who's never short on his descriptive words, he's he's like Justice Brown, as he then was. And when he was sitting in our States list, he's not a he's careful judge, but he's also not afraid to sort of call it the way he wants. And and in that case, the case he just as Dunphy, of course, was critical of a document dump that was undertaken by one of the parties and finally gave, while he was not happy with the conduct of one of the parties and sanctioned them for their feminist venomous conduct, he didn't give them a hundred cents in the dollar. So you don't want to push the envelope too far in that respect, even though even if you've got a winning case, I'll never forget a trial that we lost. Ultimately, the Court of Appeals, my dad and I, we were in. A pretrial and the pretrial judge who was a who got elevated actually eventually to the Court of Appeal, you know, made us made it perfectly clear that we were going to win this case. And I remember my dad walking out of the room sort of saying, you know, and I was like, geez, you know, we're doing this is going really great. We're going to win this case, aren't we, Dad? And he just looked at it and said, no, I think the judge actually went too far. And that could happen in some litigation with the states. When you sit there and you're seeing the judge is not, you know, respecting the conduct of one of the parties and you think that you can sort of put a choke hold on that person in the sense of making such a big deal out of the conduct. And if you overstate your case, sometimes you find that later on review a higher court might say, you know what, it wasn't quite as bad as objectionable as that judge felt it was. So you want to temper your your your own successes as you go along. But speaking of tempering successes, there was no tempering of success or failure in the taller Cranston case. And I think this is probably one of the most important cases out there right now in the past three or four years, to just keep context on the question of costs in what this case was, passive accounts. We haven't had a lot of direction from the court on passive accounts costs and in large part because truthfully, these audits are typically settled and there hasn't been a lot of opportunity for the courts to really chime in on the question of costs. But the Toller Cranston case is one many of us my age remember Toller Cranston is a great Olympian and great Canadian. He he died intestate in Mexico. And his his estate was a substantial estate, I think it was in excess of $6 million in Mexico, had some paintings and houses and so on. So there was a lot there. There was an intestacy, though, and in the case in that case, there was a passive accounts and the objectors raised 300 objections. And the you know, the court had to navigate through what was, you know, 300 objections. And at trial, ultimately, though, there were only five successful objections. And this isn't uncommon, I think, in Kim, I'm sure you find it in your case cases to on the audit cases the audit I think is the whole passive accounts sphere has gone gotten out of control in so many respects because the level of objections that come at you and the in activity or the unresponsiveness to the replies to to narrow the issues is, I think, getting more and more of a problem. And then I think what happened in Toller Cranston's case is a great illustration. More and more I'm finding that I'll put in my accounts and then I'll get a swath of objections which are minuscule or they are under they're vague. There are literally hundreds of objections, tens and tens of objections. I'll then, of course, in other rules reply to those objections and hoping that I'm going to narrow the scope of the objections to get to trial where you might have a handful. And that's that's the way the rules have been set up. And that's really the way you have to sort of manage audits. Well, in Toller Cranston's case, of course, they didn't at all narrow the issues. And I guess from my standpoint, I sort of I struggle with how we're going to continue to manage this because objectors are getting away with throwing so much mud at the wall and they're not being forced to focus bandage of meaningful issues. And in the Toller Cranston case now is sort of my bellwether case to sort of say, look, no problem, you want to throw 300 objections at me, you better have 300 valid objections. And if there's $60 missing somewhere in one element of it and you're you're going to take me to trial on that and you total it up to $180 because there's three of them, you know, bring it on, because I think the courts now have a real strength to react to this kind of overplaying of your position. And that comes back to my earlier point that, you know, when we get in a situation where there's an audit just starting the focused objections is the better route to go, in my view, because the courts are not going to tolerate as they didn't in the court, Toller Cranston case, massive objections with no substantial validity to them or substantive validity.
Kim: [00:26:44] Yeah. I find the same thing.
Ian: [00:26:47] Finding the.
Kim: [00:26:47] Same. I think, Ian, it feels like you've litigated everything that you could litigate and then you haven't been able to resolve the issue of the accounting. And then there's a contested passing of accounts. And I think to the current trends or the trend that's been developed over, I'm going to say probably ten years as well is to have the objector pay.
Ian: [00:27:11] Yeah. And I think it's that's the one aspect of loser pay that needs to be sort of continue to be revisited because I mean, look, audits or audits and there's lots of executives who don't do a great job. And the case is a classic one with Justice. Greer Many years ago, you know, when you badly behaved, you should pay the price. But proportionality and focus, I still think, are big, important elements of the judicious determination on costs. All right. So the next case you just speak to is the decision, the Rudin Brown decision. And in that case, again, what we're doing is trying to look at different focus areas in the state litigation and how the courts are starting to sort of assess costs. And and in this case, this was another example of a substantial indemnity award due to conduct. And this in this case, of course, we dealt with the assets of a Caroline Brown. And Caroline was the mother of opposing parties who said that Gordon had acted in an abusive manner and advanced a position that had no merit and running up costs and so on. And this was an SDA proceeding. So the court looked at it in the context of the Substitute Decisions Act and costs, which is again a whole new quagmire of analysis in terms of how we can predict where costs are going to go. But the court quite properly said the central issue when dealing with the costs in SDA proceedings is when the parent is declared incapable and a guardian is appointed over property. To what extent is the incapable parents assets bearing the costs of controlling litigation amongst other disputes, amongst the disputing children? And so the court looked at it and said, look, there must be consideration of the following things. Look at the effect and the intention of the persons when they were competent to. Secondly, to name those in the event of future incapacity who are entrusted with their personal care and property. What are the individual, while capable, want to have? Who do they want to have? Control the process and including not just financial affairs, but including managing litigation. And then thirdly, ensure that they choose their attorneys in that context of that life is more complicated than just paying the bills. And if there is a dispute, who are they going to be considering would be the the appropriate parties to conduct the litigation and or defend it. And in this case, there was ample evidence of the power of attorney documents were this let's be honest, the court went so far as to say that they weren't in the incapable as full and freed, informed, thoughtful consideration. So the documents themselves were very suspect in the minds of the court. And the the court examined the conduct of the parties and the A and the preparation of the powers of attorneys himself and B during the litigation. And I think that's where I don't know what your experience, Kim, but I see more and more in the Substitute Decisions Act. The costs, of course, bear real scrutiny as to the conduct during the litigation, whereas with the will challenge, of course we've got a dead person. But your scrutiny is during the litigation in an SDA, much more so than any other area of costs. Is that your experience?
Kim: [00:30:38] Yeah, absolutely. The courts really want to make sure that the litigation is purely in the best interests of the person. And if it's not, if there is any deviation, then they are quite critical of the costs and they certainly won't award it out of the alleged and capable persons assets.
Ian: [00:30:59] So, you know, keeping this theme of looking at what conduct gets the court really grumpy and affects and turns the tide on costs. We're looking at the rubric decision and this is 2021 decision of the Spirit Court in this case. Again, this was a different one. This was a state remove a state trustee removal case. And I'm sure you find the same thing in removing an estate trustee. It can be the most vicious area of estate litigation. You have to get very granular. You have to get very particular and you get very personal because you're going after their conduct as a fiduciary. And so your illustrations have to direct the court to a very high bar. I mean, the courts have always said since the 1800s with the letter of decision letter said a decision is that you cannot remove trustees willy nilly. It was the decision of the of the settlor or and or the deceased to appoint that person. So we shouldn't be removing trustees without due consideration. And and so removal applications tend to be so much more personalized because you need to hit this high bar. And then the decision and this particular decision, the trial decision concluded that the brothers had refused to take any meaningful steps to realize the assets of the estate. They had not fulfilled their obligations as trustees to the detriment of the beneficiaries, and they not complied with court orders. So all of this behavior brought the estate administration to a standstill and that that standstill was likely to continue. So the court in that case removed the trustees and the costs consequences were resulted. The the really from my standpoint, I think where we find these removal applications have been watered down is, of course, the Rubin decision where Justice Myers is now sort of open the door to the appointment of a state trustees more broadly, and I mean state trustees during litigation more broadly. So the removal applications I'm finding are actually diminishing a little bit because people are kind of throwing in the towel and saying, look, you're going to probably get removed on an interim basis much more freely by the court. Now, I have a personal sort of bias against that. I still don't think people's decisions to appoint their fiduciaries are being respected, and I think that's being undermined way too much by the courts. But that being said, the reality is these fights of removal applications are starting to diminish in my in terms of volume in my practice. Is that your experience? Kim.
Kim: [00:33:43] Yeah, for sure. I still think that. Yeah. Yes, but I still think there is a very high bar to meet. Failing an interim sort of suspension where there's the appointment of an idol or a idol and. If you're going for removal, then I think there is a high bar to to meet and I. I'm not sure the courts are moving away from that, but yeah.
Ian: [00:34:13] No, I mean, I think it's their law. I just I'm finding that this appointment of ETL is being a non pure non will challenge situations, is being used as a tool to remove trustees. And it's a real end run on section 48 of the Trustee Act. And I think it's I think it's wrong. But that's being it's hard to blanket that I should have started with this. There's handouts and you'll see there's a there's a handouts available for this. There's a PowerPoint and a paper that you can download on the site. It should be easy to find under handouts. And please go to that when you see fit. I forgot to mention that. All right. The next decision. But I wanted to just speak to briefly is the Malik and Young one. And really that case was, again, we're trying to pick away and you can use the paper to sort of identify this more carefully. But looking at in that case was a more of a nuisance claim that the court was gut grumpy with the litigant, the main litigant on and costs were awarded against for bringing what was perceived to be sort of frivolous allegations about separation and relationships and so on. So I think what I'll do is Kim, I'll pass this back over to you. And as I say, the paper and the PowerPoint presentations are all available in the handouts download.
Kim: [00:35:48] Great. For some reason, I can't now advance my slides, so maybe you could do it for me. Okay. So just turning quickly now to testamentary documents that fall outside formal requirements. Some recent cases in both B.C. and Ontario reveal that courts have admitted testamentary documents that don't meet formal requirements. And so we're seeing a bit of a change there, in part because of the legislation in Slide 16. I don't know why I can't move it anymore. Maybe.
Ian: [00:36:23] No problem. I'm happy to do it.
Kim: [00:36:25] Okay. So I mentioned this case already. McGrath and joy. It's a 2022 Court of Appeal decision in this case, the court at first instance looked at the issue of testamentary capacity following consumption of alcohol and hash oil a day before the creation of a suicide note and subsequent suicide. And so there was a discussion, a story. There was a decision about the testator not having capacity. And then the matter was appealed. And the court noted that all of the requirements of a holographic will were met. It was appealed by the decedent's stepson in section six, of course, of the SLRA and Ontario holds that a testator can make a will in their own handwriting without the formalities of attestation and signature of a witness. The Court of Appeal reviewed the Banks and Goodfellow test. And felt that the instead of applying the test of being some good fellow at the time of writing the suicide note, the application judge decided the matter largely based on the use of drugs and alcohol before he died. And so the decision was reversed on appeal. So I'm on Slide 17 now. I'm still trying madly to move my slides, but I can't, so I'm just going to stop. We know that there were some great digital updates following the recommendation of practitioners and our Honourable Downey. The Attorney General consulted with the Estates Bar and we saw built to 45 in the Accelerating Access to Justice Act. As a result of that, we now have Section 21.1 sub one, which is a validating provision, and it's similar to that which exists in many other Canadian jurisdictions. I was going to read it out, but in the interest of time you see it up there. I checked again last night. We notably have no reported decisions under this section yet, but I think in looking at what our courts might do, it is instructive to look at what's happened in Alberta. They enacted validating legislation which is similar to ours in 2012. It looked like it took 5 to 6 years before decisions started to surface in Alberta. And I think the the guidance surrounding those decisions will be helpful. Also, Professor Oosterhouse did a blog on one of these decisions, the McCarthy estate. So the decisions that you might want to look at would be the Craig estate in Alberta sort of starting in 2018 onwards, the stich the Atlanta estate McGarthy And look at section 37 of the Wilson Succession Act in Alberta to see to see what they're doing. And I think our courts will probably take some guidance from that. I'm on Slide 18 now and just wanted to say that I think that we we do need some more updates or reform around our Succession Law Reform Act and hopefully we see that coming. Slide 19. In B.C., the Wills, Estate and Succession Act, Section 58, permits a court to order a record document or writing to be fully effective. If the court can be satisfied of two things one, the document is authentic, and two, that it represents the will maker's deliberate, fixed, final intentions. And we see that language in the Alberta cases as well. And so a new and notable case is the bishop estate in sheared in one where there was a dispute as to whether a prior will prior executed will would be the will or a subsequent executed will. And so in this case, if the petitioner was the executor under prior will, the estate was left to the. Colonna General Hospital Foundation, and then also to the nephew and niece in law who she named as executors. So the will, which was determined to be valid, was actually the last will, which was done in 2020, and it was done in COVID circumstances. While Mrs. Mrs. Bishop was in the hospital, she went to her prior drafting lawyer. She did an update. She called and cancelled her appointment for execution of the document because she she was not allowed to leave except for going to medical appointments and no visitors were allowed in. She died four months later, and the court found that the executed will represented her final and fixed intention as at March 2020. And so the will was valid and the court accepted, obviously, the evidence surrounding her age, her medical disorder and why she wouldn't want to attend the lawyer's office. And then so Section 58 was used and on Slide 20, we see the case of Gregoire and Cordani, and that's another one where Section 58 of Lisa was used. And this was a case where Gregoire and Cordani, they were involved in a common law relationship of some years. In 2015, Ms. Cordani had attempted attempted suicide. They later moved in together. Her mental health worsened and she ended up committing suicide. And in this case, the court utilized Section 58 to declare a suicide note as a valid will. So much in the same way as happened in McGrath and Joy. And then Ian and I in researching found it really interesting on I'm on slide 21 now in the British Journal of Psychiatry looked at trying to determine the frequency and details in will content surrounding suicide notes and revealed that we're making may not only be a sign of impending death by suicide, but we're making was an actual part of the suicide act. And Doctor Sinyor also looked at a study in Toronto between 2003 and 2009, specifically looking for will, content and presence of depression or psychotic illness or dementia or intoxication prior to death and revealed that 59 out of 285, so about 21% of all suicide notes had will content. So I think that's a significant factor with that in over to you on some of the developments in elder abuse.
Ian: [00:43:44] Thanks, Kim. Yeah, just on the handouts. I'm not sure I may have overstated things on the slides, may not be in the handout section. We're just checking that, but we'll make sure that they are circulated. Okay. So I just let's just talk a little bit about a whole other wing of estate litigation, but a growing wing. And as you identified, the increase in volume in Toronto alone illustrates what's been going on, about 25% increase in volume in through the pandemic. And. The question of elder abuse has been elevated to a whole new focus. But unfortunately and I think Kim and I both share this view, that unfortunately, the sort of the interface with the judiciary and the resources to deal with elder abuse still is wholly insufficient. And I think governments are still way behind, certainly in Canada in terms of dealing with it. But this increase allows me to sort of revisit the whole question of what does exist and what remedies exist will continue to push in the back rooms, our governments to try to address the reality that the infrastructure to deal with elder abuse is wholly insufficient. But that's just a public policy issue. What's the what's going on in existence right now? And that is really told best by just looking at some of the stats in terms of where things are going and where things have gone. And certainly, as I say, in the pandemic. So the area of abuse within elder elder abuse in Canada has statistically demonstrated that it's gone wildly off the charts. And what does that mean? Well, what what what we can only do right now is look to some of the civil remedies and the criminal remedies that are available in Section 331 of the criminal code, of course, is the starting point that allows us to address it. It's theft by persons holding powers of attorney, and this charge relies on a specific type of property theft with an added element of a breach of fiduciary duty. So that's sort of the basic parameters of Section 331. And while it's helpful, it's got lots of limitations given the high thresholds that have to be met. And then the second aspect of the Criminal Code to look at is Section 215 of the Criminal Code, which is failing to provide the necessities of life, placing a parent or guardian under a legal duty to provide the necessities of life for children under 16. How? Well, however, it also applies to necessities of life, of common law partners or anyone else under that person's charge. So those two broad definitions are helpful for us to sort of see what the Criminal Code will give us in terms of support to remedy elder abuse conduct. This is just an interesting report that came out of British Columbia. Again, they tend to be the leaders in this area of advocacy for elder abuse. And the Office of the Seniors Advocate is a leading sort of resource indicating some of the increases in abuse and some of the the tragedies that are happening out there. The Canadian securities administrators also revealed some other data that all of it is feeding. The question of this is an urgent problem. So if it's an urgent problem, what do we do and what do we look at? And one of the things that we do is we can look at some of the case law that developed and gives us an idea of the type of conduct that's sufficient to meet the Criminal Code. And then secondly, the kinds of sentencing that occurred and just a backstop. That's a backdrop. I go backwards a little bit on this. A lot of the reports that are coming out in terms of in the VC, one is an easy illustration in terms of looking for solutions. They they talk about establishing provincial standards of practice policies and front line training resources through the police and other social awareness initiatives, developing sort of central points of conduct to report causes of concern for seniors abuse. That's a big problem. Where do you go and and what resources are going to be there to make it available? But those those are the sort of the happy suggestions of in terms of what we might be able to start to move governments towards. But in this case, this was a banking executive and Nick Cvetas entered into a guilty plea in 2021 for a charge of theft. Over 5000. He had the the older abused woman was 81 years of age and she lost.
Ian: [00:48:53] All of her family had become quite close with Mr. Cvetas, who was a financial adviser. There was a series of withdrawals that occurred, all of which were either some of which were asked by the by actually Mrs. Sims asked about, and he would always come up with a sort of essentially a smooth answer to the problem eventually. Over $300,000 was taken and the he was charged and convicted with. He actually turned himself over to the police, but he was charged and convicted and he made restitution of all of the money through his lawyer and sentenced to 12 months in prison, two years probation. So you that gives you a sense of the kind of sanctions that are there from if you go that far. I would say as an anecdotal point, the. Thanks Julie for that point. Elder abuse prevention. Ontario is a great resource as well. There are resources out there for sure, and I think the overriding concern continues to be that without a proper infrastructure, without an easy points of entry into the system, using these resources are so important. So the more we can all as advisors get an understanding of what resources are out there, the better. And I know, Kim, you do a lot of work in this area and certainly with the police. You've seen the trends certainly over the last 20 years. You sit on numerous committees with the certainly with I think it's Metropolitan Police you've been active with, right?
Kim: [00:50:33] That's for sure. We work closely with the police on the Toronto Police Services Board and they have been, I think, leaders in the community and trying to make sure that they're educated on all things elder abuse so that they are able to better investigate these sorts of things with the training that they need.
Ian: [00:50:53] So again, I think the cases that I'm just listing here are just giving your illustration. So there's financial abuse and these three cases on this slide, talk about assaults both in physical assaults and the impact and the kind of sanctions that exist on them and nonverbal. I mean, so and most of them are physical assaults. And then so for example, on the the versus Murphy case, section 266 of the Criminal Code was invoked for in that case for one count of assault with a weapon and then to section 267 as well of the code. You can just see that what what and I don't have any real expertise in terms of bringing the criminal piece together. Certainly wouldn't know the first thing about charges, but that's obviously with the crown and working with the police. But these are cases where in a home assaults or occurred or in a caregiving situation and all three of these just demonstrate that there's a criminal sanction available. So this is not the the non financial assault, so to speak, this is the actual physical assault. And they all developed sort of a general theme of that. You can look to the criminal code to sanctioned for financial abuse and look to the Criminal Code to sanction for physical assault. The. It's an interesting question that Katie is asking Kim about the first steps. And that's what I just wanted to speak, to have a little dialogue with you on. What do we do when we're alerted of or concerned with abuse situations? And where do we go first? And certainly, let's just start with Ontario, just because that's yours or my more granular experience. What are some of the first steps, Kim, that you will typically tell your clients to do when you're when you're in a situation where elder abuse is being demonstrated?
Kim: [00:53:06] Okay. Obviously each situation is different. But I start by asking, have have there been reports to the police? Is there a chargeable offence? Is there evidence that could assist? What is the state of the victim? Are there capacity issues or not? And what support systems are put in place around the person? Are there family involved? Are there relatives, friends? Where where is the abuse coming from? Has it been reported to the Public Guardian and trustee for investigation if it's appropriate to do so? Is there an attorney? Does there need to be a guardian? And then trying to figure out resources and tools based on the means of the person that comes to me and what the steps are and how to try to remedy them outside of a court process. Because I just find that these situations are very difficult in a court process because they, of course, are costly, but they take too long. And if there's truly an abuse situation, you don't want to wait months and months, if not years, to get a situation resolved in somebody properly looked after. I think we over shot all of the things that we were going to talk about today. So should I just quickly talk about some of the other things that are happening, like scams in.
Ian: [00:54:40] Sure. I think we got 6 minutes. And I just just two quick points on the on the on the elder abuse situations. Of course, the public guardian trustee has an emergency line that you can call. Yeah. Which is a great resource. And then I guess one of the things maybe yeah, we've got just got 5 minutes left. So if you've got a couple areas you want to cover for sure.
Kim: [00:55:02] Yeah. Okay. Just scams are on the rise. So have a look at the Canadian Anti-Fraud Centre website. You're not going to believe the millions of billions in between Canada and the US who also have a similar reporting agency. The Federal Trade Commission deals with those sorts of reportings in the US related to romance scams. And so in the materials that we prepared for you, you'll see some reference to this and also to what I think is going to be an interesting development, the final decision, and that's the TD Bank matter before the Alberta Court. Queen's Bench, an 81 year old Lethbridge. A customer fell victim to 26 scams over ten months. Some of them were with respect to lotteries. Some are more tax related. Her, his son, eventually caught wind of it. $242,000 had gone missing. And there was a lot of face to face contact with the bank. And there should have been red flags that were picked up on. And the court in in not in MN decision basically said that there was there was some meat to making a claim against the bank because the bank owes a duty of care to its customers and to help prevent frauds. There's no known decision on this yet. And so I think it's a it's a good one to watch. The predatory marriages. I know any of you who have seen many of the talks that I've given recently will know that predatory marriages are still on the rise, that we've made some headway, and we're on page 35 of the slides, if you're able to move them along on the marriage, does not revoke a will legislation. So we have some other places like Alberta, Quebec, British Columbia, Saskatchewan, Ontario. Now the Yukon have all amended their marriage legislation such that marriage does not revoke a will. Of course, this doesn't put an end to the systemic issues in predatory marriages. I don't think the cases are truly moving along, although one might say that. Hunt, hunt and hunt. The Ontario case in the divorce Thompson and Pullen case in B.C. move things along slightly. I'm not sure that's an accurate assessment. In those cases. There were a lot of medical evidence was available such that the court didn't have to rely on the common law tests of marriage being a simple test, not requiring a high degree of intelligence. But in chuvalo that was a decision about the capacity to reconcile. And that was an interesting one, because the court did determine that financial circumstances were tied to this question of reconciliation. It wasn't just a question of who wanted to live with who, and that if you couldn't appreciate the financial consequences of reconciliation, then you weren't capable of reconciling. And so I think that sort of does move our law along and the courts are trying to. See the financial consequences. Banton and Banton years ago, just as Kelly said, look, the evidence wasn't before him in that decision to go so far as to set aside a marriage, but said, you know, one would have thought you should have capacity to manage property and your person to be able to be capable of marriage. Know, I don't know if we're going to get to the rest of our.
Ian: [00:59:03] We're pretty well there. We're at we're at the one minute mark. So I think we've given lots and we've got we're downloading the slides so that they're available as a further resource. So what we haven't been able to cover, we've covered in our paper and the slides as well. So I think that's covers what we needed to try to cover for today. Anything else you want to add, Kim, before we wind up?
Kim: [00:59:30] No, no. I saw a question about the Uniform Wills Act. And just to say that Ian and I did touch on that on our paper and our PowerPoint, so you can get an update on that. I think it's important to look at that. And of course, B.C. now is the only jurisdiction in Canada where there can be an electronic will. And so that's also referenced in our paper. And you want to have a look at that. I think that's it. I don't see any other questions.
Ian: [00:59:59] Oh, that's great. Okay. Well, thanks so much, Kim. I think we've covered our topics today.
Kim: [01:00:07] Okay. Thanks. Thanks, everyone, for joining us today. It's been fun.
Ian: [01:00:12] Thanks so much.
Mallory: [01:00:12] Yes, thank you. Thanks, everyone, for joining us. And as everyone has said in the handout section, now you will see the PDF and the slides are available for download and you will be getting a copy of the recording as well in an email. Thanks so much.