DUTY TO CORRECT EXAMINATIONS


Written on July 21, 2014 – 9:56 am | by Jasmine Sweatman

As we know, estate litigation can sometimes drag on for many years with the parties conducting multiple examinations for discovery. Over the course of time it can be easy to forget our obligations under Rule 31.09 of the Rules of Civil Procedure.

According to the Rule, after an examination for discovery if the party examined later realizes an answer given on examination was incorrect or incomplete or is no longer correct and complete based on subsequently obtained information, the party must provide the correct or expanded information to the examining party in writing. The written answer then becomes part of the original examination and, according to case law (Capital Distributing Co. v. Blakey) both the original answer and the corrected answer become part of the record but the correction or expansion of an answer does not remove the originally incorrect answer from the record.

If the subsequently obtained information is not disclosed or the answer not corrected the party cannot use the subsequently obtained information at trial without leave of the trial judge. As well, failure to follow the rule can have cost consequences (Capela v. Rush).

The obligation to constantly review the answers given and the burden to correct answers from examinations for discovery can easily be forgotten during the course of the litigation. Compliance with this rule is time consuming and add to the cists – but a necessity given the trial consequences. It is important to review historical transcripts in the files which have multiple examinations over the course of many years to ensure compliance with this rule and avoid adverse cost consequences.

But, as an interesting note, the obligation to disclose subsequently obtained information as part of oral discovery does not arise in the context of cross-examinations on affidavits – only examinations for discovery. The reason? The different obligations between examination for discovery and cross examinations reflect the different purposes of each examination (Galler v. Morganstein).

Jasmine Sweatman/Leigh Sands

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    The size and scope of social media is a challenge for estate planning


    Written on July 18, 2014 – 7:52 am | by Paul Fensom

    Facebook advise that they now have over 1.25 billion account owners. It is estimated that there are over 17 million users in Canada and the over age 65 age group is the fastest growing segment. It is also estimated that 30 million facebook account owners have died and 10% have memorial pages. These are very large numbers for something that is in its infancy. I have been following some of the research on the social impact of the digital afterlife and here is what I have found.

     
    • Michael Massimi Ph.D. and Ronald Baecker Ph.D. performed a study about how bereaved families use technology. On the inheriting/remembering side, they found that 79% of the respondents highly value mementos and reminders of deceased individuals. Furthermore, 54% believe that digital reminders are just as meaningful as physical photos etc. However, the study also asked the respondents about their own digital estate, and found that 79% of the respondents either did not consider or overlooked the distribution of their digital assets. Perhaps even more interesting was that 46% of the respondents indicated they had files on their computer which they would not want to share with their family.

    • A larger group of researchers (William Odom, Richard Banks, Richard Harper, David Kirk, Sian Lindley and Abigail Sellen) assembled from the Carnegie Mellon University, Microsoft Research Cambridge, and Newcastle University, performed a social experiment in which the passing down and inheriting of digital material, was studied. Almost right away they noted the challenge of the sheer size and scale of digital content. Ultimately they concluded that better technology will be required to ”better support the range of experiences that come with inheriting, living with and passing down treasured digital possessions over time and across generations.”.

    • Rhonda McEwen and Kathleen Scheaffer from the University of Toronto, studied the online practices of grieving and mourning. In this study they concluded that there should be more facebook options largely initiated by the account owner at the time of sign –up.

     
    In other words, dealing with social media in an estate planning context is still in a state of change.

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      Trust Created in Holograph Will Fails


      Written on July 17, 2014 – 9:00 am | by Diane Vieira

      A recent Court of Appeal decision from Alberta dealt with the interpretation of a holograph will.  The Court of Appeal upheld a lower court’s decision that the testator intended to create a trust but the trust failed since the objects of the trust were uncertain resulting in an intestacy.  The case serves as a good reminder that you should consult an expert to ensure your testamentary wishes are carried out.

      In his reasons, Justice Wakeling of the Court of Appeal describes the case before him as being about the meaning of two sentences contained in the holograph will.  The elderly testator, who was survived by her four children and a number of grandchildren, hand wrote a will that contained the following paragraph:

      My entire estate – cash, my house … and my quarter section of land … if it is then still in my possession, I leave to my son Paul Johan Lubbert and to my youngest daughter Irene Lubberts Hanson to jointly manage it and use it for their own benefit as salary for instance, or for the benefit of one of their siblings or of one of my grandchildren – as for instance medical expenses. Irene and Paul will make these decisions together and without yielding to any pressure applied by possible recipients.”

      The testator’s family have trouble interpreting this provision leading them to court and before Justice Ross of the Queen’s Bench.  Justice Ross referenced the testator’s previous 2002 will and three holograph codicils she subsequently wrote.  In her 2002 will, the testator’s children shared her estate equally.

      Justice Ross held that testator intended to create a trust for the benefit of all her children and grandchildren.  She did not intend to gift her estate to Paul and Irene alone, but appoint them as trustees of a trust.  Justice Ross rejected Paul and Irene’s argument that the testator had created a power of appointment.  The forceful language of the codicils (in which she disinherits various family members) was a factor in the court’s decision that, given her strong personality, the testator was unlikely to make a power of appointment.  However, the trust failed due to the uncertainty of its objects (i.e. the intended benefit). Since the trust failed, the testator’s estate would be administered in accordance with the rules of intestacy.  Paul and Irene appealed Justice Ross’ decision.

      The Court of Appeal dismissed the appeal and upheld Justice Ross’ decision.  While all three judges concurred in the finding that the holograph will created a failed trust, Justice Wakeling wrote a lengthy decision, including 44 footnotes that reference over sixty cases and texts, providing an in-depth look at how courts interpret a testator’s intentions and the use of extrinsic evidence to do so.  Justice Wakeling quotes extensively from Canadian, English, and American decisions in ascertaining the testator’s intention. It is a decision well worth reading.

      This case exemplifies the risks associated with a holograph will.  The testator, who spent a significant amount of time documenting her changing testamentary wishes, will now have her estate distributed in accordance with an intestacy.  Additionally, costs for both the appellants and respondents were awarded from the estate.

      Thanks for reading.

      Diane

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