What I’m Reading: Interesting Estate Litigation Articles for July 2021

The following is a roundup of noteworthy articles published this month on estate litigation and related issues:

  1. Suzana Popovic-Montag at Hull & Hull LLP (in Ontario) discusses the considerations for a beneficiary if they are asked to sign a release before they receive a distribution from the estate: https://hullandhull.com/2021/07/if-you-have-valid-concerns-dont-sign-a-beneficiary-release/
  2. Janis Ko at Onyx Law discusses an important case in which the B.C. Courts recognized a third legal parent in polyamorous relationships: https://onyxlaw.ca/bc-court-recognizes-third-legal-parent-in-polyamorous-relationship/
  3. James Jacuta at Hull & Hull LLP (in Ontario) writes about the British Columbia Unclaimed Property Society, which returns unclaimed funds to individuals in B.C.: https://hullandhull.com/2021/07/thousands-have-unclaimed-funds-waiting-for-them/
  4. Trevor Todd at Disinherited.com discusses the test for a beneficiary to obtain standing to bring a claim on behalf of an estate, in the context of a reason B.C. Supreme Court decision: https://disinherited.com/uncategorized/s-151-wesa-leave-to-bring-action-on-behalf-of-estate/

Happy reading!

B.C. Case Comment: Surviving Business Partner not Entitled to Receive Partnership Property by Right of Survivorship

What happens when your business partner dies, in particular when the assets of the business are held by you and your partner jointly? Do you receive your deceased partner’s “half” of the business, or does it go to their estate?

A fundamental characteristic of joint tenancy (i.e. registering assets in joint names) is the right of survivorship. When one joint tenant dies, their interest is extinguished, and the surviving joint tenant(s) take full ownership. For example, spouses often register title to their property in joint tenancy, so that the surviving spouse will receive the entirety of the property upon the other spouse’s death. This is accepted as a permissible estate planning tool.

However, where the property at issue is partnership property, there is a presumption that there is no right of survivorship as between partners. The death of a partner in a two-person partnership dissolves the partnership, and on dissolution each partner (including the estate of the deceased’s partner) is entitled to a proportionate share of the partnership assets after payment of debts.

This issue was recently considered by the B.C. Supreme Court in Garland v. Newhouse 2021 BCSC 1291. In Garland, the deceased and the spouse of his close friend (“Ms. Newhouse”) purchased an apartment building together in 2003, with the intention of earning a profit from the rental income. They also opened an account to manage the finances associated with the apartment building. The building and the account were both registered in their joint names.

When the deceased died, Ms. Newhouse took the position that the deceased intended for her to receive the apartment building and account through right of survivorship. The deceased’s estate took the position that the deceased intended for the beneficiaries of his estate (his children) to receive his share of the business assets.

The first question for the court was whether a partnership existed between the parties. The court held that there was a partnership. The deceased and Ms. Newhouse were not spouses, they each equally contributed to the purchase of the building and shared in the expenses and the rental income, with a goal to earn profit over time. This was clearly a business partnership.

Next, the court had to determine whether the presumption of right of survivorship was rebutted. As noted above, where the property in issue is partnership property, there is no presumption of right of survivorship between partners. In essence, the right of survivorship is inconsistent with the rules regarding treatment of partnership assets upon dissolution (including the death of a partner). In order for the right of survivorship to apply to partnership assets, “there must be evidence of a contrary agreement between the parties that is sufficiently clear and compelling to overcome the presumption that beneficial interest in partnership property does not transfer through the right of survivorship.”

Ms. Newhouse was unable to provide this evidence. The court was unable to determine why the deceased and Ms. Newhouse chose to register the apartment building in joint tenancy, and there was no credible evidence that they turned their minds to the significance of registering the property in joint tenancy. The court concluded that the parties did not intend and agree that on the death of one partner, the partnership property would transfer to the surviving partner for their personal benefit.

Ms. Newhouse failed to rebut the presumption against the right of survivorship in relation to the partnership property, and as a result she held legal title of the apartment building and the bank account in trust for herself and the deceased’s estate.

It is important to keep in mind business and partnership interests when making your estate plan. Of course this dispute likely could have been avoided if there was a written agreement reflecting the terms of the arrangement between the parties.

What I’m Reading: Interesting Estate Litigation Articles for June 2021

The following is a roundup of noteworthy articles published this month on estate litigation and related issues:

  1. Stan Rule at Sabey Rule comments on a case from the Nova Scotia Court of Appeal which held that allowing independent adult children to apply to vary their parents’ wills (which you can do in British Columbia) does not offend the s. 7 of the Charter of Rights and Freedoms (overturning the lower court’s decision): http://rulelaw.blogspot.com/2021/06/nova-scotia-court-of-appeal-allows.html
  2. Suzana Popovic-Montag at Hull & Hull LLP (in Ontario) identifies the dangers of using an online will kit to write your will: https://hullandhull.com/2021/06/the-simplicity-of-online-will-kits-is-their-biggest-shortcoming/
  3. Janis Ko at Onyx Law discusses when the court may order an interim distribution to a beneficiary from an estate where there is an ongoing wills variation proceeding: https://onyxlaw.ca/can-beneficiaries-receive-interim-distribution-pending-wills-variation-claim/
  4. Kimberley A. Whaley at WEL Partners (Toronto) posts a link to a paper that she co-authored on the role of the medical expert in estate litigation, with a focus on claims of undue influence. A link to the blog post can be found here: https://welpartners.com/blog/2021/06/published-paper-susceptibility-to-undue-influence-the-role-of-the-medical-expert-in-estate-litigation/ The paper can be found here: https://journals.sagepub.com/doi/10.1177/07067437211020616
  5. Joanna Lindenberg at de Vries Litigation LLP (Ontario) considers an Ontario case where beneficiaries acted unreasonably by raising over 300 objections to a trustee’s accounts, and as a result the trustee was awarded $325,000 in costs: https://devrieslitigation.com/cost-consequences-of-conduct/

Happy reading!