Wills & Estates – C. David Freedman: Estates, Trusts & Guardianship Law

Overview of the Course

This course deals with the law of wills and estates, with some consideration of the law respecting substitute decision-making. It is expected that students will leave the course with the following skills and abilities:

Construct simple estate plans including the operation of Will-substitutes and the intestacy rules.
Advise on the validity of Continuing Powers of Attorney and issues respecting substitute decision-making.
Advise on the validity of Wills, including who can make a Will and in what circumstances a Will, or part of a Will, is inoperative.
Advise on the interpretation of testamentary instruments.
Understand how and when probate is required, the nature of estate litigation, and the intersection of the Rules of Civil Procedure and the principal succession law statutes.
Understand the nature of the role of the Estate Trustee and the solicitor advising the Estate Trustee.
Advise interested parties including the Estate Trustee, potential heirs, creditors, and others on probate and aspects of estate administration.
Advise on dependant’s relief claims and spousal entitlements.
Understand the key professional competencies and responsibilities for practice in this area.

Evaluation: 100% Open-book Final Examination

Materials: Oosterhoff on Wills, 9^th Edition (Thomson Reuters, 2021)

Classes: Tuesdays, 1:00 – 2:30pm (Dunning 12) & Thursdays, 2:30 – 4:00 p.m. (Dunning 12)

TOPICS, LECTURE SCHEDULE, & READING LIST

Page numbers refer to Oosterhoff on Wills, 9^th Edition

Please note that the dates below will be adjusted based on the progress we make through the materials, guest speakers, and classes used for problem questions.

I. Concepts

No reading

Overview & Understanding the Model of Law as a Whole

Professional Practice and Careers

II. Pre-Mortem: Substitute Decision-Making

Useful web resources:

Please review the Substitute Decisions Act, 1992, SO 1992, c 30 (and the MAG Guide to the SDA) and also spend a few minutes browsing the web pages of the Consent and Capacity Board, the Ontario Public Guardian and Trustee with respect to its guardian services, and the provincial government respecting Capacity and Capacity Assessment.

Introduction: 1019-1029

Capacity: 1030-1047

Vanier v. Vanier, 2017 ONCA 561 (Ont. C.A.)

Lectures Notes 1 – Capacity and Substitute Decision-Making

Recording of Class on 11 January 2024

Appointment of Attorneys and Guardians: 1047-1057

Powers of Attorney Q&As – Office of the Public Guardian and Trustee

Powers and Obligations of Attorneys and Guardians: 1058-1082

Palichuk v. Palichuk, 2023 ONCA 116 (Ont. C.A.)

Specimen Guardianship Plan

Specimen Management Plan

Specimen Capacity Assessment

Specimen NOA

Lectures Notes 2 – Capacity and Substitute Decision-Making (II)

CPOAPC and end-of-life decision making (con’d)

Recording

III. Intestate Succession

Introduction and Devolution of Property: 71-72

Distribution on Intestacy: 73-102

Re Crane Estate, 2016 ONSC 291 (Ont. S.C.J.)

Partial Intestacy: 102-103

Lectures Notes 3 – Intestacies

IV. Wills and Will-Substitutes

Nature of a Will: 113-117, 325-327

Gifts: 173-174

McNamee v. McNamee, 2011 ONCA 533 (Ont. C.A.)

Jansen v. Niels Estate, 2017 ONCA 312 (Ont. C.A.)

Morreale v. Romanino, 2017 ONCA 359 (Ont. C.A.)

Lectures Notes 4 – Wills and Will Substitutes (I)

Recording

January 30, 2024

[Gifts cont’d]

Deeds and Inter Vivos Trusts: 174-176

Joint Ownership: 176-179 [you may find it of assistance to read Pecore v Pecore, 2007 SCC 17 (S.C.C.)]

Life Insurance: 180-183

Moore v. Sweet, 2018 SCC 52 (S.C.C.)

Pensions and Beneficiary Designations: 184-198

Lectures Notes 5 – Will Substitutes (II)

Recording

February 1, 2024

Will Substitutes and Probate Fees: 200-204

Estate Administration Tax Act Regulation 310/14 – Information Required

Guide to the New Estate Information Return

V. Contracts, Obligations, Mutual Wills

Promises to Make a Will: 122-128

Promises and Proprietary Estoppel: 132-134

Mutual Wills: 135-145

Nelson v. Trottier, 2019 ONSC 1657 (Ont. S.C.J.)

Lectures Notes 6 – Contracts, Obligations, Mutual Wills

Recording

February 6, 2024

VI. Will-Making

Delegation of Testamentary Power: 155-168

Public Policy: Spence v. BMO Trust Company, 2016 ONCA 196 (Ont. C.A.)

Age Requirement: 206-207

Onus Probandi: 232-235

Suspicious Circumstances: 235-242

Lectures Notes 7 – Will-Making (I)

February 8, 2024

Knowledge and Approval: 208-211

Garwood v. Garwood, 2017 MBCA 67 (Manitoba C.A.)

Mental Capacity: 211-232, 247-251

Undue Influence and Fraud: 251-160

Pascu v. Benke, 2005 CanLII 1086 (Ont. Sup. Ct.)

Lectures Notes 8 – Will-Making (II)

February 13, 2024

Finish materials on Will-making

February 15, 2024

VII. Formal Validity of Wills

Introduction to Formal Validity: 299

Succession Law Reform Act, s.21.1

Groskopf v. Rogers, 2023 ONSC 5312 (Ont. S.C.J.)

Attested Wills: 299-323

Holograph Wills: 324

Judicial Validation: 337-339

Incorporation By Reference: 334-336

Lectures Notes 9 – Formalities : Due Execution

Recording

Reading Week

February 27, 2024

Class was cancelled.

February 29, 2024

VIII. Revocation of Wills

Introduction: 359-360

By Operation of Law: 360-364

By Act of Testator: 382-393

Hayduk v. Gudz, 2022 ONSC 2249 (Ont. S.C.J.)

Conditional Revocation: 397-403

Revival of Revoked Wills: 403-405

Lectures Notes 10 – Revocation

March 5, 2024

IX. Proof of Death and Lost Wills

Proof of Death: 409-420, 422-425

Proof of Lost Wills: 427-430

X. Capacity of Beneficiaries

Illegitimacy: 441-448

Adoption: 451-452

Homicide: 454-463

The Bank of Nova Scotia Trust Company v. Rogers, 2021 ONSC 1747 (Ont. S.C.J.)

Witnesses: 470-476

Lectures Notes 11 – Proof of Death and Lost Wills; Capacity of Beneficiaries

Recording

March 7, 2024

Guest Speaker

Howard Black (Miller Thomson LLP) is an eminent practitioner in this area and an author of articles and a casebook on the law of succession. Howard will speak to us about a subject that is vexing at the best of times, disinheritance and limitations on gifts. He will address the topic from both a practical and doctrinal perspective, and I hope will offer some practical perspectives on resolving such disputes when they arise post mortem.

I would be grateful for full attendance please.

Recording

March 12, 2024

XI. Rectification of Wills

Rectification: 263-269, 270-278, 279-281

McLauglin v. McLaughlin, 2016 ONCA 899 (Ont. C.A.)

Rondel v. Robinson Estate, 2011 ONCA 493 (Ont. C.A.)

Hofman v. Lougheed, 2023 ONSC 3437 (Ont. S.C.J.)

Gorgi v. Ihnatowych, 2023 ONSC 1803 (Ont. S.C.J.)

XII. Interpretation of Wills

Jurisdiction and Judicial Function: 479-482

Jack v. Wildcat, 2024 FC 1 (Fed. Ct.) [non-examinable]