Estates & Wills & Trusts

‘Archaic’ estate legislation needs updating

An investigative report highlighting horror stories around estate battles underlines the need for updating Ontario’s “archaic” estate laws, says Toronto trusts and estates litigator Ian Hull.

Hull, who has been practising estate law for 25 years and co-founded Hull & Hull LLP, says a report in the Toronto Star brings a long-standing problem back into the limelight.

“The volume of estate litigation is growing because of the aging population,” Hull tells AdvocateDaily.com. “It's been a problem for 15 years and the government won’t engage in any meaningful legislative review.”

The Star's series of articles dealt with several issues including predatory marriages, something Hull says is an easy fix.

“Both B.C. and Alberta have changed their rules so that a will isn’t negated on marriage,” he says. “The Law Commission of Ontario has prepared three reports on estate issues. All the government has to do is walk down the hall and press 'print' to enact the changes.”

He says the wills and estates dockets are jammed and it can take months to get to the point where anything more than a 10-minute submission can be made.

“I suppose it’s lightning fast compared to what it was like prior to mandatory mediation in Toronto,” he says, noting he’s grown increasingly frustrated by the lack of progress within the system.

The aging population, higher numbers of seniors with dementia and more seniors surviving spouses and living alone have set the stage for predatory marriages, the Star notes. A caregiver or neighbour can isolate a vulnerable person with memory issues and cause them to become dependent, usually with the promise of lifetime care at home, the article states.

It’s one of a series of issues which need addressing, Hull says.

Last fall, the Law Commission of Ontario released the report Simplified Procedures for Small Estates — Hull was a contributor — which recommends a separate, streamlined process for estates worth less than $50,000 along with legal support tailored to that level. It also recommends an education campaign on the importance of wills.

“I’ve been harping on this so long I get tired of stating the obvious,” Hull says, noting the current trend in litigation is moving towards more innovative attacks on an estate.

“We’ve seen promissory estoppel and proprietary estoppel (relating to use or rights over property),” he says. “It’s big in the U.K. and growing here.”

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