Law Times

PAGE 10 FOCUS OctOber 26, 2009 • Law times Is a last will and testament necessarily the last word? BY I. JOHN HARVEY For Law Times ust how far will the courts go in undoing a will? It's an intriguing question and one coming into play more often with the advent of extend- ed families, multiple marriages, an aging population, and adult children returning to the nest, says John O'Sullivan, a partner at WeirFoulds LLP. "Th ings have evolved over the J years as courts make decisions around the Succession Law Re- form Act. We must now take into consideration not just the de- ceased's legal support obligations but also the moral obligations that exist with the family." Driving the principal of moral obligation is the concept of "ju- dicious person," a notion that considers what a right-thinking, morally, and socially responsible person would have done. In many cases, the courts have taken it upon themselves to re- draw the will and change the distributions dramatically. "Th is emphasis is independent to the [Succession Law Reform Act] and without recourse to that act," says O'Sullivan. Th e concept opens the door for adult children to claim benefi ts even if they were written out of the will. Th e fi rst case to open this door was Tataryn v. Tataryn Estate in which the Supreme Court of Canada looked at a British Co- lumbia Court of Appeal decision. Th e issue revolved around a will that provided for one son, E., to be the trustee and then set up the deceased's wife of 43 years with a discretionary trust and a life estate in the matrimonial home to en- sure she couldn't pass on any ben- efi t to the disfavoured son, J. Th e son J. and his mother claimed against the estate, say- ing the will failed to ensure the proper maintenance and support of a surviving spouse and children and asking the court to order provisions from the estate that it considers "adequate, just, and eq- uitable in the circumstances." Th e trial judge revoked the gift to E. of a rental house next door to the matrimonial home and granted the appellant a life estate in it; directed that J. and E. each receive an immediate gift of $10,000 out of the residue of the estate; and directed that when the mother died, the residue of the estate be divided one third to J. and two thirds to E. An appeal was dismissed with some clarifi cations, but the Su- preme Court ruled it should have been allowed with the mother getting title to the matrimonial home; a life interest in an adjoin- ing rental property; and the entire residue of the estate after payment of the immediate gifts to the sons of $10,000 each. In doing so, the court coined an approach based on what a "judicious father and husband" would have done. "Th e B.C. statute is much broader than the [Succession Law Reform Act], but 10 years later, in Cummings v. Cummings, the Ontario Court of Appeal con- fi rmed a lower court decision that diffi culty of providing for all The court's notion of a 'judicious person' means adult children can make a claim even if they were left out of a will, says John O'Sullivan. applied the Tataryn reasoning to Ontario law," says O'Sullivan. As the court noted, it's often easier in larger estates to redraw the benefi ciaries without hurt- ing one of the parties. But in Cummings, Justice Robert Blair, writing for the panel, noted the Get more legal support for family law issues Child Support Guidelines Service Provides a full analysis of the Federal Child Support Guidelines, giving you the best chance for a clear understanding of the financial obligations of divorcing parents to their children. 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Perfectbound • 896 pp. • Published April each year Standing order $76 • P/C 0823140000 Current edition only $86 • P/C 0823010000 • ISSN 1198-211X Family Mediation: A Guide for Lawyers A comprehensive guide that provides a clear understanding of the major concepts of family mediation, including the practice and procedures used in the process. Perfectbound • 183 pp. • 1999 • $60 P/C 0944010000 • ISBN 0-88804-308-2 when the estate was small: "Th e task facing a judge who is required to determine whether a deceased person has made adequate provi- sion for the proper support of his or her dependants is a diffi cult and delicate one when the estate is not large enough to satisfy the competing legal and moral claims of all dependants." Cummings involved a second wife, an ex-wife, a 24-year-old son with a progressively debilita- tive disease, and an 18-year-old daughter in university. Pursuant to Bruce Cummings' 1992 divorce, he paid $2,000 per month to his ex-wife and chil- dren recognizing that his son may require support for life. Although the current wife made no claim against the estate, the trial judge ruled there wasn't enough money to go around. Th e fi rst wife was supporting her daughter through school as well as her son. He lived with her in a home that would soon re- quire substantial renovations. Th e trial judge found the de- ceased had a moral obligation to his former spouse and children as well as his second wife. In re- sponse, O'Sullivan notes, the judge cleverly crafted an order of support for the children while not aff ecting the subsequent transfer of the matrimonial home or en- cumbering it. "Th e order was upheld on appeal which found the inter- pretation of the [Succession Law Reform Act] consistent with the Family Law Act and Divorce Act and [consistent] with societal expectations of what a judicious person would do in the same cir- cumstances," O'Sullivan says. Indeed, it's a message not lost on the courts, he adds. "In Cummings, [Superior Court] Justice [Maurice] Cul- lity, a well-known and extremely good and respected estates judge, said the court should not just take into account people in need com- ing to court but has to bear in mind those not coming to court as the statute does take into ac- count other factors." Indeed, in Perilli v. Foley Estate, the Superior Court stepped in to ensure the deceased's estate prop- erly addressed the needs of his common-law wife of 15 years in recognition that she had quit her job to care for him in the latter years of his life while he suff ered from Alzheimer's disease. As a result, O'Sullivan says the case could have important implications for trusts and estates law. "Ontario law governing a deceased parent's moral obliga- tions, as confi rmed in Perilli For a 30-day, no-risk evaluation call: 1.800.565.6967 CA045 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com CA045 NEW (LT 1-2X4).indd 1 10/22/09 9:56:36 AM LT1026 and Cummings, may provide the foundation for a successful claim by an adult child without fi nan- cial need to a share of a parent's estate if they were left out of the will or to a larger share than they received under the will. Th e court may be more sympathetic to the application if the benefi ciaries other than the applicant were strangers or charities to whom the deceased owed no legal or moral obligation." LT Michael G. Cochrane Terry W. H ainsworth Terry W. H ainsworth Terry W. H ainsworth Editor: James H The Honourable Justice Mary Lou Benotto Founding Editors: The Late H erbert Pensions Consultant: Ben Dibben . Douglas S tewart, Q.C., Consulting Editor: Elliot S . Birnboim Cinnie Noble

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