Recently, the world learned of the passing of actor Gene Hackman and his wife, Betsy Arakawa in what appeared to very strange circumstances. Initially, there were concerns that their deaths may have been as a result of carbon monoxide poisoning. Autopsy reports have later revealed that this is not the case.

Almost immediately, the media started talking about their Estates, with initial reports suggesting that Gene’s Will did not name his children, Christopher, Elizabeth and Leslie as beneficiaries.

Within the last week or so, the contents of the Wills for both Gene and Betsy have been revealed. Gene’s Will was dated in June 2005 and appointed Betsy to be his personal representative and the trustee of a trust established on September 22, 1995 – the “GeBe Revocable Trust”. According to Gene’s Will, the GeBe Revocable Trust is the beneficiary of his estate. Gene also appointed attorney Michael G. Sutin as the first successor personal representative in the event of Betsy’s death. Mr. Sutin died in 2019. The second successor personal representative named is Julia L. Peters, who is the chief counsel at Avalon Trust Co., which is an investment firm.

In the US, revocable trusts are a very common estate planning tool. A revocable trust is set up during the lifetime of the grantor, in this case, Gene, and typically income earned during the lifetime of the trust is distributed to the grantor. On the death of the grantor, the trust property will then be transferred to the beneficiaries named in the trust.

In the case of Gene’s Will, the direction to transfer the remainder of his estate to a trust is a “pour-over” clause. This means the terms of the trust are not referenced in the Will, rather the Will references the gift being made to the trustee of the trust to administer in accordance with the terms of the trust. Presumably, Gene named Betsy to be the beneficiary of the GeBe Revocable Trust on his death. It is possible, although not known, that Gene’s adult children, Christopher, Elizabeth and Leslie are alternate beneficiaries of the GeBe Revocable Trust.

Betsy’s Will, on the other hand, which is dated the same date as Gene’s, left everything to Gene. However, given Gene’s death, the remainder of her estate is to go to her personal representative to hold in a charitable trust that is to be used for purposes that would benefit the community which would be consistent with the charitable interests that she and Gene had expressed during their lifetimes.

This case is a sad example of spouses passing away within a short period of one another. How would this scenario be treated in Ontario? Let’s use some hypotheticals to look at what would happen in Ontario.

Let’s say, we have Chris and Emma who are spouses of one another. Chris and Emma have two adult children, Robert and Hannah.  Chris’ Will left his Estate solely to Emma and didn’t name an alternate beneficiary in the event of Emma’s death. Emma’s Will left her Estate solely to Chris and didn’t name an alternate beneficiary in the event of Chris’ death.

Hypothetical 1 – Chris and Emma both died together and their deaths were determined to be at or near the same time (i.e. simultaneous).

In Ontario, s.55(1) of the Succession Law Reform Act (“SLRA”) would apply. It provides:

“Where two or more persons die at the same time or in circumstances rendering it uncertain which of them survived the other or others, the property of each person, or any property of which he or she is competent to dispose, shall be disposed of as if he or she had survived the other or others.”

What this means is that Chris’ Estate would be administered on the basis that Emma had predeceased him and Emma’s Estate would be administered on the basis that Chris had predeceased her. As both died not leaving alternate beneficiaries named, then their respective estates would follow the rules of intestacy and their children, Robert and Hannah would in fact be the heirs of each of their Estates.

What happens to jointly held property where there parties have died simultaneously? 

Looking to s.55(2) of the SLRA, each party’s interest in the property will be deemed to have been held as tenants in common.  S.55(2) specifically states:

“Unless a contrary intention appears, where two or more persons hold legal or equitable title to property as joint tenants, or with respect to a joint account, with each other, and all of them die at the same time or in circumstances rendering it uncertain which of them survived the other or others, each person shall be deemed, for the purposes of subsection (1), to have held as tenant in common with the other or with each of the others in that property.”

This would mean, if Chris and Emma owned their home together as joint tenants, joint tenancy would in effect be severed and their estates would each be entitled to a 50% interest in the home.

Hypothetical #2 – Chris’ Will referenced above instead has a giftover to a revocable trust.

Pour-over clauses are generally not recommended for estate planning in Ontario. The case of Vilenski v. Weinrib-Wolfman[1] provided that certain pour-over clauses would be considered invalid resulting in an intestacy. In this case, the trust document for the revocable trust, which is not a testamentary document, can be revoked after the Will has been signed. As the trust could be revoked after the estate “poured-over” into the trust, it is outside of the strict formality requirements that are necessary for testamentary documents.

Takeaways

Like with the passing of Gene and Betsy, one of the most commonly known cases of simultaneous deaths in Ontario is that of Barry and Honey Sherman. Much has been written about their deaths. In this case, Barry had a Will and Honey did not. Honey’s estate resulted in an intestacy. As a result of their simultaneous deaths, Honey’s estate on intestacy went to her children equally. Barry’s Will directed that the residue was to be divided equally among his children upon Honey’s death. The Shermans were very philanthropic during their lifetimes, yet there were no charitable gifts to be made on their deaths. One will never know if Honey’s intentions were for her children to inherit from her estate or whether she would have made charitable gifts with the knowledge that her children would eventually benefit from Barry’s estate.

While simultaneously deaths are not as common, it doesn’t take away from the need to ensure proper estate plans are carefully reviewed to avoid the risk of an unintended distribution. When drafting estate planning documents for clients, it is prudent for the drafter to ensure that the “common disaster” scenario is fully considered.

[1]      https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2116/2022onsc2116.pdf