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Page 4 September 24, 2018 • Law timeS www.lawtimesnews.com NEWS NEWS NEWS in clarifying the court's role in probate. In Milne, Dunphy re- ferred to Neuberger and said the court's role is "inquisitorial" and the court's function and obligation is to "ascertain and pronounce what documents constitute the testator's last will and testament." Atin says Dunphy's deci- sion was "very dramatic" given that Milne was subject to the process of being admitted to probate, which often does not even come before a judge but is instead completed by a registrar. Hundal says practitioners who drafted these types of wills may want to consider contacting cli- ents to update their estate plans. "I know a lot of people are also worried because there are circumstances where you might have drafted a primary and sec- ondary will for a client and then the client has become incapable of making a new will," Hundal says. LT Dunphy, was the question: "Is a will that grants the executors the discretion to determine what property is subject to the will a valid will?" The disputed language in the primary will said the execu- tors were in charge of "all prop- erty 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 author- ity by a court of competent ju- risdiction is not required for a transfer or realization thereof." The wording in the secondary will said "all property owned by me at the time of my death IN- CLUDING . . . [certain named assets and] any other assets for which my Trustees determine a grant of authority by a court of competent jurisdiction is not required for the transfer or realization thereof," with em- phasis added by Dunphy. In the decision, Dunphy re- ferred to an affidavit from the lawyer executing the estate who certified that the primary will was in force and had not been revoked by the secondary will. The trustees argued that the probate function of the court is "a separate and distinct func- tion" from the construction of the will, the decision said. How- ever, the judge ultimately decid- ed that the secondary will was valid and the primary will was not valid. "The Secondary Will includes all of the property of the testator of every kind with- out exclusion. It overlaps the Pri- mary Will completely. There is no gap," Dunphy wrote. He concluded that using the opinions of the trustees to deter- mine what is desirable to include in each will "cannot be done." Burns declined to comment on the case and declined to com- ment on whether the decision would be appealed. Jordan Atin, counsel at Hull & Hull LLP, who was not in- volved in the case, says some as- sets in an estate require probate from the court if they involve a transaction with a third party, such as a bank, that needs to check if the will is valid. Atin, who is a Law Society of Ontario-certified specialist in Estates & Trusts Law, says that other assets, such as furniture, might not need probate, which is important in determining pro- bate taxes and fees. "There are thousands of these wills in Ontario that, if Justice Dunphy's decision stands, are invalid. All these people who have these wills, when they die, now they don't have a will to deal with those assets," Atin says. "It's a very big issue for law- yers who drafted wills that way. These wills have been accepted for 20 years. Nobody thought they were invalid." Barry Corbin, who practises at Corbin Estates Law PC in To- ronto, says it's unclear why Dun- phy saw fit to pronounce on the validity of the secondary will, a question that was not before him. Jonathan Friedman, estate litigation lawyer at Heft Law PC in Richmond Hill, Ont., says the broad basket clauses in Milne were uncommon enough that he hasn't come across them in litigation. But, he says, Dunphy relies on a decision, Neuberger v. York, 2016 ONCA 191, that Friedman says has "changed everything" duct, but that after their termi- nation, the pair "held an 'illegiti- mate' special shareholder meet- ing at which time they removed him as CEO, appointed Kamran as President and Secretary, and fraudulently transferred his shares in LEO Canada," the de- cision said. Kamran and Aquino previ- ously told the court that they were whistleblowers within the company, calling out a long list of Andersson's alleged misconduct. Andersson's main goal, the January decision says, was to pre- vent Kamran and Aquino, who were "engaged in an undisclosed personal relationship," from con- tacting LEO Canada's employees. The prior January decision ex- plained that LEO's global branch- es have various shareholder structures and Kamran remains a shareholder and officer in other branches of the LEO company. Andersson seeks damages for breach of contract, conversion, misappropriation of property, breach of fiduciary duty, conspir- acy, fraud and unjust enrichment. At issue in the September Superior Court decision was whether Andersson had present- ed "convincing evidence" and "a compelling reason" to not order security for costs, George wrote. Andersson, a U.K. resident, said he has enough money in Ontar- io to pay costs through his shares in LEO Canada, George wrote. One issue raised in the case was the value of LEO's Bitcoin wallet. "To the extent the bitcoin bal- ance gives us a sense of the value of LEO Canada shares, it actu- ally reveals them to be severely diminished. Furthermore, the serious and competing allega- tions of financial impropriety, if any are true, has (and will have) a detrimental impact on share value," George wrote. Andersson claimed the com- pany had "several million dol- lars" worth of Bitcoin, and An- dersson argued in his factum that Kamran knew the company was valuable. "The court can . . . infer that LEO Canada's shares are valu- able from the fact that Mr. Kam- ran is fighting tooth and nail to retain control of the impugned shares at the heart of the action," Andersson wrote in his fac- tum, as quoted by the decision. But Kamran said the shares were not an "appropriate asset" and that the Bitcoin wallet bal- ance "shows only a negligible amount and that it has previ- ously shown a negative balance." George ordered Andersson to post security of costs in two installments, one of $20,000 and one of $30,000, for a total of $50,000. Chris Kinnear Hunter, a law- yer at Lenczner Slaght Royce Smith Griffin LLP, who rep- resented Andersson, said he couldn't comment on the case. Keegan Boyd, a partner at Miller Thomson LLP in Toronto, who represented the defendant Atif Kamran, also said he was unable to comment on the case. Shane D'Souza, a partner at McCarthy Tétrault LLP in Toronto, says the case sets an interesting precedent by giv- ing a sense of whether or not Bitcoin should be considered as something of value by the court. "[A] couple of years ago, the judge may have not been will- ing to consider that or admit that kind of evidence," he says. Chetan Phull, a lawyer and founder of Smartblock Law PC in Toronto, says there isn't enough precedent to extrapolate the court's position on how crypto- currency should be valued. "The issue of share valuation as impacted by crypto-currency valuation is becoming more im- portant and I am seeing that in my practice for public compa- nies," says Phull. Chloe Snider, a partner in the litigation department at Den- tons Canada LLP in Toronto, who was not involved in the case, says it's difficult to know from the decision exactly what evidence was before the court in terms of crypto-currency. "I do think it's important where arguments are going to be based on the value of Bitcoin or crypto-currency to be able to ex- plain to the court that value and why you are assigning that value, and I think this may particularly arise in the context of damages — outside the security for costs context," Snider says. LT Crypto-currency new Continued from page 1 Continued from page 1 'These wills have been accepted for 20 years' © 2018 Thomson Reuters Canada Limited 00251NU-A92272-CM Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # L7798-8631-65203 $149 Softcover + CD-ROM approx. 400 pages May 2018 978-0-7798-8631-9 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Gain an up-to-date understanding of how the Citizenship Act works, how it has been applied, and what principles of law are relevant to making determinations. New in this edition Completely updated and revised to refl ect all noteworthy developments to the Citizenship Act since the last edition, The 2018 Annotated Citizenship Act includes: • Legislation updates, including updates to the Citizenship Act, Citizenship Regulations, Federal Courts Act, and Canadian Passport Order • Updated commentary, case law, and notes, including: – Citizenship Act, s. 3(2) - Vavilov v. Canada (Citizenship and Immigration) (2017 F.C.A.) – Citizenship Act, s. 13.1 - Canada (Minister of Citizenship and Immigration) (2017 F.C.A.) – Citizenship Act, s. 10 - Oberlander v. Canada (Attorney General) (2016 F.C.A.) – Citizenship Act, s. 27 - Canada (Minister of Citizenship and Immigration) v. Ishaq, (2015 F.C.A.) – Citizenship Act, s. 3(2) - Budlakoti v. Canada (The Minister of Citizenship and Immigration) (2015 F.C.A.) – Citizenship Act, s. 24 - McAteer v. Canada (Attorney General) (2014 Ont. C.A.) – Citizenship Act, s. 10 - Monla v. Canada (Citizenship and Immigration) (2017 F.C.) – Citizenship Act, s. 10 - Hassouna v. Canada (Minister of Citizenship and Immigration) (2017 F.C.) – Citizenship Act, s. 10 - Esnan v. Canada (Minister of Immigration, Refugees, and Citizenship) (2016 F.C.) – Citizenship Act, s. 5(1)(c) - Badiei v. Canada (Minister of Immigration, Refugees and Citizenship) (2016 F.C.) • Addition of an introduction with comprehensive discussion of the Citizenship Act covering topics such as the scheme of the Citizenship Act, oaths, updated residency requirements, the application process, lost Canadians, and summary of changes to the Citizenship Act as of June 2017, fall 2017, and early 2018 • Addition of Citizenship Regulations, No. 2, Can. Reg. 2015-124 • Addition of case citations to the Table of Cases New Edition The 2018 Annotated Citizenship Act Henry M. Goslett and Barbara Jo Caruso

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