Questions about estates and answers from a Toronto Estate Litigation Lawyer

Wills, Estates and Trusts

What happens if the will is lost?

In Ontario, this situation is covered under Rules 75.02 and 75.06 of RULES OF CIVIL PROCEDURE - R.R.O. 1990, Reg. 194.

An application must be made to court to “prove the Will” that was lost. If everyone who has a financial interest in the estate agrees to accept the contents of the “lost will” as the intended last will and testament of the deceased then the court will likely rely on affidavit evidence only. If there is no consensus amongst those with financial interests in the estate, then the person who wishes to “prove the Will” must bring an application to court and ask for directions. In this instance, affidavit evidence will be insufficient. It is important to remember that the courts assume that if the testator had possession of the “lost Will” and no one can find it then unless there is proof to the contrary the court will presume that the Testator revoked or destroyed the will.

What are the duties of an Executor?

If I were restricted to a one sentence summary I would say that a personal representative of the estate must gather in the assets, pay the debts of the deceased, deliver the specific legacies, bequest and devises and then distribute the assets. This one sentence description is wholly incomplete. It omits any description of the fiduciary duties of the executor and the steps he or she must take to carry out his/her tasks. It is inadequate because it is an oversimplification of the numerous tasks and duties facing the personal representative.

A site I have found quite useful for my clients’ review of the duties of an executor can be found at a guide put out by the certified accountants of Ontario at
http://www.cga-ontario.org/contentfiles/publications_promotions/executorship.pdf.

How do I cancel pension benefits after death?

The executor should look into canceling whatever pensions that were being received by the deceased prior to death because benefits paid after the dated of death will have to be repaid. For more information on these issues I refer you to an excellent site at
http://www1.servicecanada.gc.ca/en/isp/common/cancel.shtml.

What happens if the named estate trustee dies before the Testator?

A properly drawn will names an executor and trustee and also names an alternate if, for whatever reason, the first person named refuses or cannot fulfill his/her mandate. When both the named and alternate estate trustees are unable or unwilling to act, then someone who has the support of people with a financial interest in the estate should bring an application to be estate trustee with a will. If there is no consensus candidate or person agreeable to a majority of the beneficiaries and more than one competing person wants to be estate trustee, the court will review all the circumstances and decide. Sometimes a financial trust company will be the compromise choice. There is no iron rule when more than one person wants to be estate trustee in these circumstances, but normally courts give preference to those closest to the deceased. For example if a spouse, child and grandchild each wanted to be the estate trustee, in order of preference, courts have preferred spouses, then children, then grandchildren.

What government benefits are available to the family of the deceased?

There are many government programs designed to assist people who have to deal with the financial burden that occurs upon the death of a loved one. These include:

Survivor’s pensions;
Death Benefits;
Benefits for Children;
Allowance for a surviving spouse;
Assistance for funeral expenses;
Surviving Dependents’ benefits For The Disabled; and
Compassionate care benefits.

For more information on these issues I refer you to an excellent site at www.canadabenefits.gc.ca/faeclist.jsp?catid=12&lang=en&geo=5

How do purchasers of burial rights protect their rights?

For the answer click here.

What happens if someone in the family is no longer able to take care of themselves?

In Ontario patients must consent to medical treatment. If the patient is incapable and has not executed a power of attorney then someone has to make that decision on their behalf. This applies for issues relating to property and personal care. It is really important to appreciate that depending on the province in which you live and the task before you there are different thresholds or bench marks for a person’s:

Capacity to make a will;
Capacity to make decisions about property;
Capacity to make decisions about personal care;
Capacity to get married.
The court may, on any person’s application, appoint a guardian of property for a person who is incapable of managing property or person if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so. If there is no substitute decision maker then the Public Guardian and Trustee may become involved.

Some helpful sites include:

When it comes to inheritance, is a common law spouse entitled to the same rights a married spouse?

The legislation only allows a common law spouse to sue the Estate and seek support as a dependant. There is no statutory right to an inheritance or to property through an equalization payment. Clearly, a common law spouse has fewer rights than she otherwise would have if she had been married. In one case heard before the Supreme Court of Canada it seems that this different treatment does not offend the Charter of Rights and Freedoms. For more information about this question please see this detailed article or a summary published in The Jewish Tribune.

Is a contract that waives a spouse's rights to an inheritance binding?

Maybe. Under the Family Law Act such a contract can be set aside under certain circumstances and under the Succession Law Reform Act, a contract is only one factor taken into account when a judge decides whether or not to make a support order for a dependant. For more information about this question please see this detailed article or a summary published in The Jewish Tribune.

Assume a parent has a joint bank account with one of their children. When that parent dies who gets the money - the surviving joint account holder or the estate?

Everything depends on the intention of the parent. Did the parent need his child’s help to manage finances and really want the money to be distributed in accordance with the instructions set out in the Will or did he want the joint account holder to receive the money? The court will examine the evidence and make the determination accordingly. If the evidence is unclear the court will presume that the surviving joint account holder is holding the money in the joint bank account in trust for the estate. This is called a Resulting Trust. For more information about this question please see this detailed article or a summary published in The Jewish Tribune.

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