Estate Law-week 13 Power Point (Aug3)

8/6/2019 Estate Law-week 13 Power Point (Aug3)

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Week 13Estate Administration and Procedures

Materials developed by H. Gilhooly,

modified and presented by A. Vespry



Death and Disappearances Mrs. Green¶s son, James, joined the Army.

In January 1941, he wrote home, said he¶d

be in London, and told his mother not toworry ± ³I¶m good at dodging bombs´.

That was his last letter. No body was found.

Mrs. Green believed he was still alive.

In her will (written in 1972), she left half her property to James.



Death and Disappearances ³Benjamin Order ́: Court states that anyone

desiring to claim under missing person,

must prove that missing person is alive (or died after testatrix).

Court does not declare missing person tobe dead, but Trustees can distribute the

estate as though Missing predeceasedunless Missing¶s date of death can beproven.



Death and Disappearances Various common law jurisdictions also had

precedents stating that Courts could

presume death if a person was absent for 7years or more.



Presum ption of Death The Courts have always been free to

declare someone to be presumed dead if

sufficient evidence is brought. Boarding tickets for the Titanic, or other

maritime or aviation disasters are usually

sufficient proof, but the survivors do needto gather that proof and submit it to the

Court.





Legislative Assembly of Ontar io Tuesday 30 October 2001

Hon David Young (Attorney General):

In times of great tragedy and personal loss,victims' families should not have their government putting obstacles in their wayduring the healing process, during a time

when they are trying to bring closure totheir grief.



Legislative Assembly of Ontar io We plan to remove legal obstacles to

settling estates. I will be introducing

legislation in this session to streamline theprocess for obtaining a declaration of

death. A simplified declaration of death will

make it easier to probate wills, make

insurance claims and conduct other

important legal business.



Declarations of Death Act (2002) Allows ³interested persons´ to apply to the

Court for an Order stating that an individual

has died.



Interested per son: definition any person who is or would be affected by an

order declaring that an individual is dead, including

(a) a person named as executor or estate trustee in the

individual¶s will,

(b) a person who may be entitled to apply to be appointed

administrator of the individual¶s estate on intestacy,

(c) the individual¶s spouse,

(d) the individual¶s next of kin, (e) the individual¶s guardian or attorney for personal care or

property under the Substitute Decisions Act, 1992 ,



Interested per son: definition (f) a person who is in possession of property

owned by the individual,

(g) if there is a contract of life insurance or groupinsurance insuring the individual¶s life,

(i) the insurer, and

(ii) any potential claimant under the contract, and

(h) if the individual has been declared anabsentee under the Absentees Act , the

committee of his or her estate;



Application to Court: pr ocedure 2. (1) An interested person may apply to the

Superior Court of Justice, with notice to any other

interested persons of whom the applicant is

aware, for an order under subsection (3).

2(2) Notice under subsection (1),

(a) if given by or to an insurer, shall be given at least 30

days before the application to court is made;

(b) if not given by or to an insurer, shall be given as

provided by the rules of court



Power s of the Court 2(3) The court may make an order declaring that

an individual has died if the court is satisfied thateither subsection (4) or (5) applies.

2(6) The declaration of death applies for allpurposes unless the court, (a) determines that it should apply only for certain

purposes; and

(b) specifies those purposes in the order.

2(7) The declaration of death is not binding on aninterested person who did not have notice of theapplication.



Conditions: subsection (4) or (5) 2(4)(a) the individual has disappeared in

circumstances of peril;

(b) the applicant has not heard of or from the

individual since the disappearance; (c) to the applicant¶s knowledge, after making

reasonable inquiries, no other person has heard of or from the individual since the disappearance;

(d) the applicant has no reason to believe that theindividual is alive; and

(e) there is sufficient evidence to find that theindividual is dead.



Conditions: subsection (4) or (5) 2(5)(a) the individual has been absent for at least

seven years;

(b) the applicant has not heard of or from the

individual during the seven-year period; (c) to the applicant¶s knowledge, after making

reasonable inquiries, no other person has heard of or from the individual during the seven-year period;

(d) the applicant has no reason to believe that theindividual is alive; and

(e) there is sufficient evidence to find that theindividual is dead.



Date of Death 2(8) The order shall state the date of death,

which shall be, (a) the date upon which the evidence suggests the person

died, if subsection (4) applies; or (b) the date of the application, if subsection (5) applies.

(9) The order may state a date of death other than that required by subsection (8) if the court isof the opinion that it would be just to do so in the

circumstances and that it would not causeinconvenience or hardship to any of the interestedpersons.



Changing an Order 4. (1) An interested person may, with notice to any other

interested persons of whom the person making the motion isaware, move for an order amending, confirming or revoking anorder made under section 2 if the person making the motion

did not have notice of the application to make the order. 4. (2) An interested person may, with leave of the court and

with notice to any other interested persons of whom theperson making the motion is aware, move for an order amending, confirming or revoking an order made under section 2 if new evidence or a change in circumstances justify

reconsidering the matter. 8. Any interested person may appeal an order made under

this Act to the Divisional Court.



If the

Individual is found Alive?

6. (1) « if an order that applies for the purpose of dealingwith an individual¶s estate has been made under section 2and all or part of the estate has been distributed accordingly,the distribution is final even if the individual is afterwards

discovered to be alive, and the individual is not entitled torecover the distributed property.

(3) « the court may, if it is of the opinion that it would be justto do so, make an order requiring a person to whom propertywas distributed to reconvey all or part of it to the individual or to pay a specified amount to the individual.

(4) In deciding whether to make an order « the court shallconsider all the circumstances, including any inconvenienceor hardship to the person subject to the order.



If the

Individual is found Alive?

6. (7) Property that has not been

distributed when the individual is

discovered to be alive, (a) remains the individual¶s property;

(b) is held in trust under the Trustee Act; and

(c) shall be returned as the court directs.



Duties of PR

or ET 5. If an order that applies for the purpose of dealing with an

individual¶s estate has been made under section 2 but theindividual¶s personal representative has reasonable groundsto believe that the individual is not in fact dead, the personalrepresentative shall take no further steps to administer theestate unless the death is confirmed by an order made under section 4.

7. A payment of money or distribution of property madepursuant to an order made under this Act discharges the

person who made the payment or distribution to the extent of the amount paid or the value of the property distributed.



Dead or just Disappeared 3. If, on an application under section 2, the

court is not satisfied that there is sufficient

evidence to justify an order declaring anindividual to be dead, the court may make

an order under the Absentees Act.



Absentees Act

Anyone may apply to the Court to have a

missing individual declared to be an

³absentee´. The Court may then appointpeople to look after the property of the

absentee until he or she returns or is

declared dead.



A bsentee: definition 1. An absentee within the meaning of this

Act means a person who, having had his or

her usual place of residence or domicile inOntario, has disappeared, whose

whereabouts is unknown and as to whom

there is no knowledge as to whether he or

she is alive or dead.



Applicants: definition 2(2) The application for the order may be made by,

(a) the Attorney General;

(b) any one or more of the next of kin of the alleged

absentee;

(c) the person to whom the alleged absentee is married;

(d) the person with whom the alleged absentee was living

in a conjugal relationship outside marriage immediately

before the absentee¶s disappearance; (e) a creditor; or

(f) any other person.



Pr ocedure

No specific provisions regarding notice.

Service on other affected parties would

make appeals less likely.



Power s of the Court

2. (1) The Superior Court of Justice may

by order declare a person to be an

absentee if it is shown that due andsatisfactory inquiry has been made, or may

direct such further inquiry to be made and

proceedings to be taken as the court

considers expedient before making anyorder.



Power s of the Court

8. Where a person who has had his or her usual place of residence or domicile out of Ontario and who has an interestin land in Ontario has been declared to be an absentee by acourt of competent jurisdiction, the Superior Court of Justicemay by order, upon being satisfied that the person hasdisappeared, that his or her whereabouts is unknown andthat there is no knowledge as to whether the person is aliveor dead, appoint a committee with such authority to manage,sell or otherwise deal with the interest in land as in the

opinion of the court is in his or her best interests and those of his or her family.



Power s of Court (& Committee)

4. The court may make an order for the

custody, due care and management of the

property of an absentee, and a committeemay be appointed for that purpose.

5. A trust corporation with or without one or

more persons may be appointed such

committee.



Power s of Court (& Committee)

6. Where a committee of the estate of an absenteehas been appointed, the powers and duties of thecourt and committee are the same, with necessary

modifications, as the powers and duties of the courtand of a guardian of property under the SubstituteDecisions Act, 1992.

7. The committee, subject to the direction of thecourt, has authority to expend moneys out of the

estate of an absentee for the purpose of endeavouring to trace the absentee and inendeavouring to ascertain whether he or she isalive or dead.



Conditions Applicant must bring sufficient evidence to

convince the Court.

Individual must be absent, but there is nominimum time limit before they may be

declared an absentee.



Changing an Order 2. (3) Any person aggrieved or affected by

the order has the right to appeal therefrom.



If the

Individual is Found?

3. Upon application at any time, the court,if satisfied that such person has ceased tobe an absentee, may make an order sodeclaring and superseding, vacating andsetting aside the order declaring the personan absentee for all purposes except as to

acts or things done in respect of the estateof the absentee while such order was inforce.



If the

Individual is not Found

After seven years, may apply under

Declarations of Death Act



Example: Antonation v. Sylvester Interest is normally paid on the proceeds of

a policy of life insurance 30 days after the

insurer receives sufficient evidence of theclaim.

What happens if the insured ³disappears,´

and the beneficiary brings an application for

a declaration of death?

2007 MBCA 110 (CanLII)



Antonation v. Sylvester (cont.) On July 4, 2005, the Court granted an

Order declaring that Mr. Sylvester ³shall bepresumed to have died on May 29, 1998´

Insurer paid within 30 days of July 4, 2005

Beneficiaries claimed interest back to 1998

Court held: prior to 2005, there was

insufficient evidence of death, therefore nointerest was payable

Documents

Estate Law-week 13 Power Point (Aug3)