A complete estate plan includes protective measures for when you are still alive, but are not able to manage your own affairs.

A person with mental capacity may appoint one or more attorneys for property to act if, due to accident or illness, the person later comes to lack mental capacity to manage his or her own property.

Choice of the attorney is critical. An attorney can do anything with your property that you can do, except make a Will. You must have complete trust in the attorney and his or her ability to manage your property and financial affairs. The attorney can hire investment, tax or legal advisors. It may be useful to appoint more than one attorney, either to act jointly, or jointly and severally. “Jointly” means all must act together; “jointly and severally” means all may act together or independently. As in the case of estate trustees, it may be useful to provide for an alternate attorney in case one of the appointed attorneys is unable or unwilling to act.

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In a recent Ontario case, a husband was ordered to pay to his wife $65,000 in general and aggravated damages.  Specifically, Justice Blishen ordered the husband to pay his wife $15,000 for aggravated damages and $50,000 for pain and suffering.  This is one of the highest financial awards ordered for spousal abuse in Canada.  Justice Blishen also awarded further damages for competitive damage and future care costs. 

In this case, the husband “violently ejected” the wife from the matrimonial home during an argument.  The husband denied the claims and was acquitted at his 2008 criminal trial.  However, Justice Blishen found that on the balance of probabilities, the assault did occur. Read the rest of this entry »

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The previous blog in this series outlined key issues in Will preparation.  Today’s post discusses the law of “intestacy”, which provides the rules that govern the administration of estates where a decease

If you die intestate and are survived by your spouse and no children, your spouse will be entitled to all of your property.

If you are survived by your spouse and one or more children, your spouse will receive a $200,000 preferential share from your estate. If you are survived by your spouse and one child, your property remaining after payment of the spouse’s preferential share will be distributed equally between your spouse and your child. If you are survived by more than one child, your spouse will be entitled to one-third of your remaining property, and your children will be entitled to equal shares of the remaining two-thirds.

A child will be considered to have survived you for the purpose of distribution on an intestacy if the child is deceased, but has living children. The child’s share will be distributed among his or her children equally.

If you die intestate and have no surviving spouse, children or grandchildren, your property will be distributed equally among your relatives of the nearest degree in which there are relatives surviving you: first your parents, then your siblings, then your nieces and nephews, and so on.

If a minor child is entitled to a share of your estate on an intestacy, the money will be held in court or by a court appointed guardian. When the child turns 18 years of age, the money will be released to the child without any restriction.

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In a landmark decision, the Ontario Court of Appeal has clarified that a cause of action for invasion of privacy exists in Ontario, namely, intrusion upon seclusion. 

Prior to the Court’s decision in Jones v. Tsige (2012), 108 O.R. (3d) 241, it was generally believed that no cause of action existed in Ontario for invasion of one’s privacy.  Instead, litigants typically resorted to related claims such as nuisance, trespass, defamation, misappropriation of personality, among others.  The Court of Appeal noted in Jones that, up until its decision, Ontario had at the very least remained open to the proposition that a tort action will lie for an intrusion upon seclusion.  Now it has been clarified that such a tort does indeed exist.

The Court of Appeal held that by recognizing a cause of action for intrusion upon seclusion, an incremental step was being taken by the Court consistent with its role in developing the common law in a manner consistent with the changing needs of society.

Essentially, the elements of the cause of action are met where a defendant intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, provided the invasion would be highly offensive to a reasonable person. 

The element of intent includes recklessness, and the invasion must be without lawful justification.  In order for the invasion to be highly offensive to a reasonable person, it appears that the conduct must cause distress, humiliation or anguish.

Given the intangible nature of the interest protected by the claim, the Court stated that damages will ordinarily be measured by a modest conventional sum, especially where the plaintiff has suffered no pecuniary loss.

A flood of new cases may be feared by some as a result of the new tort.  However, given the general limit on damages, it is expected that claims for intrusion upon seclusion will typically be pleaded as derivative claims in conjunction with related causes of action for which higher measures of damages are available. 

It will be interesting to see how this tort evolves in the coming years.

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My previous post in this series discussed the first major issue in preparing your Will: the selection of Estate Trustees. Today’s post discusses the second major question: to whom should your assets or property be given?

Gifts, bequests or legacies can be to any number of persons or organizations, including charities. Recipients are referred to as beneficiaries.

The beneficiaries can be anyone you choose. Many couples choose to provide that all of their assets will be given to the surviving spouse and that on the death of the surviving spouse, all the remaining assets be given to family members. Care should be taken to ensure that the bequests reflect family circumstances and the needs of children. For example, if a child is married, you may wish to provide that the bequest is not to form part of the property to which the child’s spouse can get access in the event of separation or divorce. If a child has children, you may wish to provide that the children take the share of the parent should the parent die. Unless your Will provides otherwise, a gift to a child, grandchild or sibling who predeceases you will be distributed among the beneficiary’s surviving spouse and children as though the beneficiary died intestate. Distribution of property on an intestacy will be discussed in the next blog in this series.
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