Law Times

February 4, 2019

The premier weekly newspaper for the legal profession in Ontario

Issue link: https://digital.lawtimesnews.com/i/1077864

Contents of this Issue

Navigation

Page 2 of 15

www.lawtimesnews.com LAW TIMES COVERING ONTARIO'S LEGAL SCENE | FEBRUARY 4, 2019 3 parents was an undergraduate degree, held by almost 27 per cent of the students' parents. The survey, which was an update to a 2014 report, showed little change in the numbers of first-generation law students over those years. It also said that first-genera- tion law students in their third year of law school have an aver- age of $32,066 more debt than students whose parents have post-secondary education. "We want our profession to be representative of the diverse communities that it serves. And in order to do so, we require sup- port from the law schools, the government, the LSO and mem- bers of the profession," wrote Heather Donkers in the report. Donkers is president of the stu- dent organization and the auth- or of the report. Titled "Just or Bust," the report also indicated that debt load was $83,746 for third-year students. Fifty-five per cent of respondents said they were worried they would be unable to make debt payments after graduation. In terms of mental health, the report said the majority of respondents "agreed that finan- cing law school has negatively impacted their mental health." Atrisha Lewis, who was called to the bar in 2013 and now practises at McCarthy Tétrault in Toronto, says that the profes- sion has only recently begun to openly explore the mental health ramifications of paying for law school. Lewis, who is running for bencher, says there has been a "striking rate" of tuition increas- es since she attended law school. Even when she graduated, many of her peers opted to go to New York or Bay Street firms for fi- nancial reasons. "I commend these students. . . . We do need advocacy on this issue. What I would like to see is law schools coming to be part of the discussion," she says. LT BY ANITA BAL AKRISHNAN Law Times THE Ontario Superior Court of Justice Divisional Court upheld a widely used method of writ- ing wills that had been called into question by two conf licting cases in the lower court. The court set aside a previ- ous decision by Ontario Supe- rior Court Justice Sean Dunphy, which had said it was invalid to use a phrase called a "basket clause" to distinguish between the contents of primary and sec- ondary wills. A panel of judges allowed an appeal in the Jan. 24 decision, Milne Estate (Re), 2019 ONSC 579, written by Associate Chief Justice Frank Marrocco with justices Katherine Swinton and Harriet Sachs concurring. Ian Hull, co-founder of Hull & Hull LLP and one of the law- yers who acted for the Toronto Lawyers Association as an in- tervener, says he thinks the pro- fession will be relieved by the decision, which focuses the law around secondary wills. "The TLA wanted to make sure the specific concept — that fiduciaries have the right to ex- ercise their discretion widely — be preserved. There was some concern that Justice Dunphy's decision was undermining that aspect of the law. And in a couple of paragraphs in the Milne deci- sion, the Divisional Court has beefed up [the concept] and re- sponded to the concerns," says Hull, who is based in Toronto but practises across Ontario. In September, Dunphy's deci- sion said the registrar should not accept the uncontested primary wills of John Milne and Sheilah Milne, which were submitted for probate after their death on Oct. 2, 2017. The pair each had two wills, a primary and secondary will. "The use of Primary and Sec- ondary Wills is often used to re- duce tax payable . . . to avoid the delay associated with obtaining a Certificate of Appointment or preserve privacy in respect of certain assets," wrote Marrocco. "Because a testator often ex- ecutes their Last Will and Testa- ment several years in advance of death, it is often not practical to provide a definitive list of assets. . . . To overcome this practical problem, estate planning law- yers often provide estate trustees with the power." The wills contained a phrasing of an allocation clause, sometimes called a basket clause, to differen- tiate between the two wills — a "common estate-planning tech- nique," according to Marrocco. "The Primary Will settled upon the executors 'all property owned by me at the time of my death EXCEPT . . . [certain named assets and] any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction is not re- quired for a transfer or realization thereof ' [emphasis added]. The Secondary Will, expressly not revoking the first, settled upon the executors 'all property owned by me at the time of my death INCLUDING . . . [certain named assets and] any other as- sets for which my Trustees de- termine a grant of authority by a court of competent jurisdiction is not required for the transfer or re- alization thereof," Dunphy wrote in the September decision, Milne Estate (Re), 2018 ONSC 4174. There is no ban on multiple wills and wills do not always need to be submitted for pro- bate, Dunphy wrote. However, in the case of the Milnes, Dunphy questioned whether a valid will grants the executors the discretion to de- termine what property is subject to the will. Dunphy wrote in the decision that the primary and secondary wills were "materially identical" and that the secondary will "includes all of the property of the testator of every kind without exclusion." Thus, Dunphy wrote, the Milnes' primary wills were in- valid because they "fail to describe with certainty" any property that is subject to the wills. One of the main points of contention in the decision and the appeal was whether a will is a trust, says Pia Hundal, a part- ner at Dentons Canada LLP in Toronto and chairwoman of the Trusts and Estates Law Section Executive Committee of the On- tario Bar Association. "The analysis for the validity of a will is different from what constitutes a properly construct- ed trust. For a will, it has to be in writing, it has to be signed by the testator in front of two witnesses and [be] testamentary in nature. For a trust to be properly con- stituted, it has to have the 'three certainties,'" says Hundal. "And, then, there are various require- ments for vesting that would apply in the equitable analysis. So, trusts are really a creature of equity and wills are a creature of statues. That analysis is what caused a lot of consternation . . . taking the trust law approach to the validity of a will." LT Ian Hull says he thinks the legal profession will be relieved by a recent decision related to writing wills. Concern over earlier decision A will is not a trust, Ontario judges say NEWS BencherElections-1/3_LT_Feb4_19.indd 1 2019-01-30 9:37 AM Financing law school weighs on mental health: survey Continued from page 1

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - February 4, 2019