Deadbeat - Goodmans

Deadbeat
TRUSTS AND ESTATES SECTION / SECTION DES FIDUCIES ET SUCCESSIONS
Volume 26, No. 1
October/Octobre 2007
In this Issue:
Organ Donation and Power of
Attorney for Personal Care: Does the
Estate Lawyer Have a Role?
Informing Clients about Organ
Donation ... Practice Suggestions
Case Comments:
The Presumptions of Advancement
and Resulting Trust in Canada:
Pecore and Madsen Estate
Mladen Estate v. McGuire: A Class Act?
Miller v. Staples Estate et al,
(2006) 278 D.L.R. (4th) 535
(N.S.C.A.)
Online System for Estates List Scheduling
Proposal regarding Tariff C
Spelling and Grammar Query
Brown Bag Lunches Start Again
Section Award Nominations Are Now Open
Upcoming Programs
Newsletters Now Electronic: Message
from the Chair of Sections
National Pro Bono Mentorship
Program / Le programme national de
mentorat pro bono
Message from the Chair: Welcome to
the First Edition of Deadbeat 2007-2008
Jordan M. Atin*
I am privileged to be the incoming Chair of the Trusts and Estates
Section for 2007-2008. I welcome you all to another great edition
of Deadbeat, one of the substantial benefits to being a member of our
Section.
As in previous years, we have a great, motivated Executive who will be
working hard to fulfill our mandate - making Trust and Estate practice
easier for our members. Whether informing us through Continuing
Legal Education programs and Deadbeat, creating a network of colleagues who can assist
when difficult problems arise by way of the monthly Brown Bag lunches and Section
meetings or liaising with the Courts and the government to make Estates practice more
streamlined, more efficient and less arcane, our goal is to improve the practice of estates
for our members.
Over the past few years, we have tried to make our Section more accessible for our
members who practice outside the GTA through the use of technology. We welcome
suggestions from those members on increasing the benefits of our Section for non-GTA
estates practitioners.
I wish to thank our Past Chair, Corina Weigl, for her hard work and dedication to our
Section and the Executive.
On behalf of the Executive, we welcome your input and look forward to serving you this
year.
Best wishes,
Jordy
* Jordan M. Atin, Hull & Hull LLP, (416) 369-0335, jatin@hullandhull.com.
Section Executive 2007-2008

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Organ Donation and Power of Attorney for Personal
Care: Does the Estate Lawyer Have a Role?
Irit Gertzbein*
The purpose of this article is to examine the extent to which estate lawyers may play a role, if any, in the
implementation of the existing first-person consent regime for post-mortem anatomical gifting, in light of
relevant legislation and current practice in hospitals to not act on a deceased’s written consent to donate organs
in the face of a family member’s objection. 1 The overriding question is, what, if any, is the estate lawyer’s role
vis-à-vis a client’s wish to donate organs after death, given the application of relevant statutes to the practice of
organ donation?
BACKGROUND
In Canada, the “opt in” system of organ donation, also known as the first-person consent regime, is the means
by which patients requiring healthy organs or tissues to sustain or enhance their life receive matched organs or
tissues from voluntary donors. The Trillium Gift of Life Network Act (“TGLNA”) governs the first-person consent
regime in Ontario, while the Trillium Gift of Life Network (“TGLN”) is the facilitating organization.
In response to increase in demand for organs, organizations dealing with organ donations have, often unsuccessfully,
proposed various modifications to the first-person consent regime in an effort to improve organ donations in
Canada. Particularly, organizations such as the TGLN have attempted to enlist the cooperation of estate lawyers.
Specifically, it has been suggested that in order to firstly, increase supply and secondly, to prevent frustration
of donors’ intentions, estate lawyers should encourage clients to utilize a Power of Attorney for Personal Care
(“POAPC”) as a tool to convey their intentions to donate.
LEGISLATIVE CONTEXT
Trillium Gift of Life Network Act (“TGLNA”) 2
First-person consent for inter-vivos organ donation requires consent in writing 3 by a person who is at least sixteen
years of age and mentally competent. Consent for post-mortem organ donation may be given either in writing
or, orally in the presence of two witnesses during the person’s last illness. 4 Written consent is full consent with
statutory authority to be enforced. 5 Section 1 of the TGLNA defines a “writing” for the purposes of Part II to
include a will and any other testamentary instrument whether or not probate has been applied for or granted
and whether or not the will or other testamentary instrument is valid. The effect of this definition is that in
essence, “any writing will do”. The nature of the document per se is irrelevant. 6
Where a deceased did not give consent, the TGLNA limits authority to consent to donate to a spouse, a child at
least 16 years of age, a parent, sibling, more remote next-of-kin, or a person lawfully in possession of the body. 7
This is to be distinguished from authority to consent by a substitute decision maker (“SDM”) under a POAPC,
as discussed below.
Substitute Decisions Act, 1992 (“SDA”) 8 and POAPC
Should organ donations be dealt with in a POAPC? POAPCs are dealt with in the SDA. The SDA provides
authority to a SDM under a POAPC to make decisions on behalf of the grantor concerning personal care, 9 health
care, nutrition, shelter, clothing, hygiene or safety, keeping in mind the best interest of the grantor, 10 while he or
she is incapable. Whatever the nature of the decision, it must be within the rubric of enhancing or sustaining
the health and life of the grantor. Making a post-mortem organ donation in no way fits within this mandate.
Section 66(14) of the SDA, addressing sterilization and transplants, states:
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(14) Nothing in this Act affects the law relating to giving or refusing consent on another person’s behalf to
one of the following procedures:
1. …
2. The removal of regenerative or non-regenerative tissue for implantation in another person’s body.
Clearly, the SDA does not provide authority to a SDM under a POAPC to make decisions regarding the donation
of organs of the grantor.
ANALYSIS
The raison d’être of a POAPC is to authorize substitution of the decision maker, to replace the first-person
decision maker with a third party decision maker. The authority for such delegation of decision-making as
expressed in the instrument itself is rooted in the SDA. Since neither the SDA nor the TGLNA contemplate a
grantor’s delegation of decision making to consent to organ donation, the use of a POAPC under the SDA with
respect to organ donation is an inappropriate use of a POAPC as the SDA does not apply to matters involving
transplantation. However, if part of a POAPC, among other things, states the first-person’s consent to organ
donation after death, it is “a writing” which constitutes written consent to donate. Clearly, in the latter example,
the document is used as a vehicle to record consent and not as a POAPC. That an attorney is named in that
POAPC is irrelevant. Hence, when advocating the use of a POAPC regarding post-mortem organ donation it
is important to clarify that such instructions are enforceable (barring family objection) not because a POAPC
is used as the vehicle, but rather, because the instructions are first person written consent, in compliance with
the TGLNA.
ADVISING CLIENTS
The rationale for providing written instructions to donate organs after death in a POAPC is that this document
is likely to be examined by hospital staff and family prior to death while the same instructions provided for in
a Will may not be read until after burial of the deceased, thus frustrating the donor’s intentions. However, to
achieve the proper timing does not require the use of a POAPC. It is possible to achieve the same results by
advising clients who are executing a POAPC and have expressed a wish to donate organs after death, to provide
written instructions to that effect, perhaps attached as a Memorandum to the POAPC and referred to in the
POAPC. This approach may reduce misunderstanding by the client, his or her family and the public at large,
with respect to the role of the POAPC regarding the intended organ donation. Separating the contents of
the documents demonstrates their independent legal status, while the physical attachment (by a paper clip for
example) achieves the timing goal.
Finally and perhaps most significantly, the estate lawyer may emphasize to the client that notwithstanding the
existence of written consent or oral consent to two witnesses during time of illness, objection from a family
member will prevent a hospital from harvesting the donated organs. Informing close family members of intentions
to donate and requesting that they do not thwart them may be the clients’ best way to ensure that their wishes
are followed.
CONCLUSION
In the context of post-mortem organ donation the provisions of the SDA are inapplicable. The sole statute
governing consent to post-mortem organ donations is the TGLNA, which, while providing for consent by third
party family members in the absence of first party consent, does not contemplate consent by an attorney pursuant
to a POAPC. Furthermore, notwithstanding binding written consent by the potential donor, hospitals do not
carry out those wishes if there is objection from the family.
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Estate lawyers’ role in advising clients on these matters is limited. When clients raise questions regarding the
use of a POAPC for purposes of organ donation after death, the lawyer’s advice should reflect the distinction
between delegation of decision-making authority in a POAPC, and written consent provided in writing under
the TGLNA. In the context of organ donation, the former cannot be done. With respect to the unsettled state
of affairs given the legislative context and public policy considerations, at best, the lawyer may, by encouraging
the client to convey his or her wishes to close family members, increase the likelihood that the client’s wishes
will be honoured after death.
* Irit Gertzbein, Torkin Manes Cohen Arbus LLP.
1
Confirmed by Jennifer Tracy, Director of Public Affairs and Communication, Trillium Gift of Life Network,
in discussions with the author.
2
Trillium Gift of Life Network Act, R.S.O. 1990, CHAPTER H.20
3
TGLNA, s. 3(1)
4
ibid, s. 4(1)(a) and (b)
5
ibid, s. 3(3)
6
See website www.giftoflife.on.ca of the TGLN for its suggested form of writing.
7
TGLNA, s. 5(2)
8
Substitute Decisions Act, 1992, S.O. 1992, CHAPTER 30, as amended.
9
SDA s. 49(1)
10
ibid s. 66(4)
Informing Clients about Organ Donation …
Practice Suggestions
Jan Goddard*
If you want to encourage your clients to sign organ donor consent forms, here are some tips:
• Keep a supply of Trillium Gift for Life brochures in a stand in your firm’s meeting or reception
area (or both) to attract attention from all clients, not just estate planning clients
• Add a question about organ donation to your will questionnaire or interview sheet. For example:
Would you like information about organ donation?
• Offer to make copies of a client’s signed donor card and suggest that copies be attached to or
stored with other estate planning documents such as the client’s power of attorney for personal care
or will
• Encourage clients to discuss their wishes regarding organ donation with family members, and offer
extra copies of the brochure for them to distribute to other family members
* Jan Goddard, Jan Goddard & Associates, (416) 928-6685, jgoddard@jangoddardlaw.com.
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The Presumptions of Advancement and Resulting
Trust in Canada: Pecore and Madsen Estate 1
Susan J. Heakes*
A potential client comes to your office for advice. Her father has just passed away. She has been managing his
affairs for a number of years under a power of attorney. She and her father had established a joint bank account
which consisted of her father’s money. The account included notice of a right of survivorship. She wants to know
what will happen to the money in the account.
Many would probably respond by explaining that absent evidence to the contrary, the money belongs to the
survivor, and until recently, that advice would have been basically correct. In two recent cases, Pecore 2 and Madsen
Estate, 3 the Supreme Court of Canada abolished the presumption of advancement to an adult child in favour of
the presumption of resulting trust. In practical terms, the new starting point where an adult child holds the joint
account with the parent is that the funds are now held for the benefit of the deceased co-owner, i.e. the estate.
This change to trust and estate jurisprudence will have a direct impact on the lives of many Canadian families
and their long-term estate planning.
Pecore v. Pecore
In the mid 1990’s, Mr. Hughes, a retired miner from Timmins, Ontario began to transfer his assets to new
accounts jointly owned by him and his daughter Paula Pecore. Mr. Hughes continued to manage and control
the joint accounts on a day-to-day basis.
Mr. Hughes’ investment advisors had told him that by placing his assets in joint ownership with a right to
survivorship, he could avoid the payment of probate fees and taxes. This process was thought to make after-death
disposition both less difficult and costly. Despite this advice, Mr. Hughes became concerned that such transfers
to Paula might be considered deemed dispositions by Revenue Canada (as it was then called) thereby triggering
the immediate payment of capital gains taxes. As a result, he sent letters to the various institutions where he
had joint accounts, advising that the change in ownership had been done for probate purposes only and that
there was no intention of a gift to his daughter. Mr. Hughes’ will left the residue of his estate to several people,
including Paula’s husband, Michael Pecore. Michael Pecore took the position that based upon the equitable
presumption of resulting trust, the assets from the joint accounts should revert to the estate and be distributed
through the terms of the will.
At trial, Karam J. found that the presumption of advancement applied and that Michael Pecore had failed to rebut
the presumption of advancement. On appeal, the trial judgment was upheld. 4 The Court of Appeal reviewed the
law respecting presumptions of resulting trust and advancement and concluded that these presumptions were
only relevant when evidence of actual intention was not present or sufficient. Where joint ownership of assets is
at issue, resorting to the presumption will rarely, if ever, be necessary. 5
Madsen Estate v. Saylor
Mr. Madsen held joint bank accounts with one of his three children, Patricia Brooks. The question at trial was
whether the value of these accounts should be included in his estate, or whether the monies belonged to Ms.
Brooks upon his death.
According to his will, Mr. Madsen’s estate was to be divided into two equal shares: one to be equally distributed to
his three children; and the other to be equally distributed to his eight grandchildren. Ms. Brooks was the only child
named as an executor of the will and was also previously appointed as Mr. Madsen’s power of attorney. Prior to
his death Mr. Madsen made Ms. Brooks the joint signatory on his bank accounts with a right of survivorship.
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At trial, the court found that Ms. Brooks was evasive and gave conflicting evidence. 6 The judge found no
evidence to support the position that her father intended to gift the contents of the joint account to her. 7 After
reviewing the presumption of resulting trust and the presumption of advancement, the court concluded that the
presumption of advancement from parent to child should be abandoned in favour of resulting trust in all but the
most limited cases. 8 The historical justification for the presumption of advancement was financial dependence;
thus, where the parent is elderly and the child is an adult, dependence does not exist and the presumption should
not apply. 9
On appeal, Laforme J.A. concluded that the presumption of advancement can apply to transfers of property
from a parent to a child, including an independent adult child. 10 The trial judge was therefore incorrect when
she applied the law of resulting trust. The trial judge’s error was moot, however, as the majority found ample
evidence to suggest that the contents of the joint accounts were not intended to be a gift to Ms. Brooks, thereby
not requiring an application of the presumption of advancement. 11
In her dissent, Feldman J.A. thoughtfully examined the social and practical implications of judicial interference
with the presumption of advancement. She suggested that to the extent that the existing law is flawed, it was
the legislature that must address such issues, as it did with the presumptions in the context of spouses. In the
meanwhile, she suggested, that the presumptions of resulting trust and advancement provide certainty and
predictability to the increasingly common dilemma of the beneficial ownership of joint accounts.
New Direction for Presumptions from the Supreme Court of Canada
The Supreme Court of Canada released their decisions in Pecore and Madsen on May 3, 2007. The reasons for
the majority are found in Pecore, where Rothstein J. writes for the majority.
At the outset, Rothstein J. notes that joint accounts between parents and their children have become common
estate planning tools. Each joint tenant may be able to withdraw any or all of the funds and each may have a
right of survivorship. Given their widespread use for estate purposes, many commentators have referred to joint
accounts as ‘the poor man’s will’.
Regardless of how the general public understands joint accounts, the courts of equity distinguish between legal
and beneficial ownership. This distinction is drawn by the intention of the transferor at the time of transfer.
Unfortunately, intention is often difficult to ascertain, especially when the transferor is deceased. 12
Rothstein J. explored the origins of the presumption of advancement and found it to be a tool whereby a parent
could transfer assets to a child. But what happens when the children are adults and financially independent of
their parents? Rothstein J. examined a number of recent cases, including McLear v. McLear Estate where the
court held that it is dangerous to presume that an elderly parent is making a gift. 13 One of the concerns expressed
in McLear was that in modern times, the joint account may have a purpose other than succession planning:
the management of the elder’s finances in later years. Rothstein J. adopted the rationale behind these cases and
held that where there is no parental obligation to support their children, it is wrong to assume that the parent
intended to advance the child through a gift.
The Dissent
In a strongly worded dissent, Abella J. tried to preserve the presumption of advancement. She noted the
longevity of the presumption of advancement in English and Canadian jurisprudence and concluded that there
was no reason to limit the presumption of advancement to non-adult children or to remove the presumption of
advancement from the “judicial toolbox” in assessing intention. 14
Abella J. challenged Rothstein J.’s rejection of parental affection as a basis of the presumption of advancement. In
cases from Grey (Lord) in 1677 to the modern extended family drama in Yao, the presumption of advancement had
been based upon “natural consideration of blood and affection” not solely on financial dependence. 15 Historically,
this “affection” applied to adult children as well as minor children.
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From a policy perspective, Abella J. considered that people today are living longer and they are using joint
ownership as a mechanism to manage their daily financial affairs. She stated that there was a “flawed syllogism” 16
in the argument that using joint accounts as a means of financial management was inconsistent with survivorship
and a gift.
Practical Advice to Litigators Resulting from these Decisions
Litigators can now use Pecore and Madsen for guidance on the types of evidence the courts will consider and
value when determining intention. The following is a brief checklist to consider when asked what will happen
to the monies in the joint account upon the death of an owner:
1. Obtain records from the financial institution where the joint account is held, particularly the account
agreement and account statements that record the activity in the account.
2. Find out which employees of the financial institution may have interacted with the deceased and interview
these employees as soon as possible.
3. Look to the deceased’s other bank accounts, as they may be instructive in the estate and financial planning
objectives of the deceased.
4. Review the issues of use and control of the account.
5. Obtain a copy of the deceased’s will and previous wills.
6. Obtain a copy of any of the deceased’s powers of attorney.
7. Obtain copies of the deceased’s and survivor’s tax returns, notices of assessment, and reassessment after
the joint account was established (to determine how the joint account was treated for tax purposes).
8. Interview witnesses at the outset – especially any accountants or financial advisors. The concern is
twofold: first, as the issue of resulting trust is fact-driven, one cannot advise the client properly without
an understanding of all of the evidence. Second, many of the witnesses may be elderly and in poor health.
Judges in these cases generally prefer the evidence of non-parties or non-family members.
9. Relationships in the family are relevant; however, try not to become distracted by the intra-family
squabbles. This is only a small part of the puzzle.
10. Your client’s claim arises in equity and the defence of laches may apply. 17 If acting for the survivor, if
there has been a delay prior to your retainer, consider how much time you have before further delay may
prejudice your client.
The Supreme Court of Canada has given the courts extensive discretion in these cases. While credibility is always
an important consideration for the courts, it is magnified in these cases. This is especially true now that the court
can consider evidence of intention after the joint account was established.
Advice to Banks and Other Financial Institutions
Rothstein J. and several other judges were very critical of the language used in account agreements respecting
survivorship, commenting that they were confusing and ambiguous. Banks and other financial institutions
should retain a lawyer familiar with this area of law to review their account forms. These institutions must also
consider how to clearly communicate the implications of entering a joint account to their customers. Finally,
as the employees of these institutions may be required to provide testimony, the financial institutions should
consider how to record and retain information they have received from the account holder. 18
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Conclusion
The shift to the presumption of resulting trust from the presumption of advancement, combined with the
expanded evidentiary scope of the inquiry into transfers to joint accounts, will result in less certainty for the users
of joint accounts. This may have a disproportionate impact on some members of society as joint accounts were
often used as inexpensive estate planning tools (‘the poor man’s will’). It may be that “transactional certainty” will
have to be legislated, as it was for real property. Until then, professionals such as lawyers, bankers and financial
advisors will have to take this new legal regime into account when dealing with intergenerational transfers of
wealth to ensure the transferors’ true intentions are respected upon their death.
* Susan J. Heakes, Discipline Counsel, Law Society of Upper Canada.
1
This article represents the opinion of the author and does not represent or embody the official position of the
Law Society of Upper Canada.
2
2007 SCC 17 No. 31202; [2005] O.J. No. 3712 Docket: C41774 (C.A.); (2004), 48 R.F.L. (5th) 89 (Ont.
S.C.J.) [Pecore]
3
2007 SCC 18 No. 31262; (2005), 261 D.L.R. (4th) 597 (Ont. C.A.); (2004), 13 E.T.R. (3d) 44 (Ont. S.C.J.).
[Madsen]
4
Pecore v. Pecore, [2005] O.J. No. 3712 Docket: C41774 (C.A.), Weiler K.M., Rosenberg M., and Lang S.E., JJ.A.)
5
Ibid. at para. 9.
6
Saylor v. Madsen Estate (2004), 13 E.T.R. (3d) 44 (Ont. S.C.J.) at para. 51.
7
Ibid. at para. 58.
8
Ibid. at para. 24.
9
Ibid. at paras. 24 and 36. To add salt to the wound, the trial judge held that by retaining the monies from the
joint account, Paula Pecore was in breach of her fiduciary obligations as an executor of her father’s estate. This
seems harsh, when the state of the law was in flux. The Court of Appeal reversed this finding.
10
Madsen Estate (2005), 261 D.L.R. (4th) 597 at para. 19 (Ont. C.A.) at para. 21.
11
Ibid. at para. 23.
12
Pecore, supra note 3 at para. 5.
13
McLear v. McLear Estate, [2000] O.J. No. 2570 (S.C.J.) at para. 34.
14
Pecore, supra note 3 at para 82.
15
Grey (Lord) v. Lady Grey (1677) at 743; Cho Ki Yao (Trustee of) v. Yao Estate [1999] O.J. No. 3813 (S.C.J.)(QL)
[Cho cited to QL]
16
Pecore, supra note 3 at para. 100.
17
Fonesca v. Jones, (1910), 14WLR148, 21 Man. R. 168 (K.B.), aff’d (1911), 18 WLR 259, 21 Man. R. 168 at
193 (C.A.).
18
Added to this problem is the reality that the employee who may have originally dealt with the account holder
may no longer be with the institution. It all comes back, to the financial institution having clearly worded
account agreements and forms.
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Mladen Estate v. McGuire: A Class Act?
Barry S. Corbin*
The recent case of Mladen Estate v. McGuire, 2007CarswellOnt 1976 (S.C.J.) is a compelling example – as if we
did not have more than enough already – of the problems that can result from poor will drafting. At a minimum,
it can give rise to additional costs to the estate. At worst, it may result in a distribution of the estate that is not
in accordance with what the client intended. The only uncertainty is whether the burden of the resulting loss
suffered by the “disappointed beneficiary” will, by means of a successful negligence claim, be transferred to the
shoulders of the solicitor who drafted the will.
In Mladen, Belobaba, J. was faced with the task of interpreting Shirley Mladen’s will (drawn by her solicitor) that
directed the residue of her estate to go to her mother and, if her mother predeceased her, further directed that
it be “divided among my Aunt Bea Peterson as to a 50% share, my cousin Bonnie McGuire as to a 25% share
and my cousin Roger Bird as to the remaining 25% share.” Shirley’s mother did predecease her. The difficulty
arose because Bea Peterson also predeceased Shirley. As a result, it became necessary to answer the question
as to whether Bea Peterson’s share of the residue should (i) pass as on an intestacy; or (ii) pass to the other two
named beneficiaries.
According to the evidence, Shirley’s solicitor recognized the prospect of a partial intestacy resulting from Bea
Peterson’s predecease. He urged Shirley to revise her will to avoid that result. The evidence further indicates that
Shirley was considering making certain revisions to her will, but never did so prior to her death. (The reasons
for judgment are unclear as to whether the revisions Shirley contemplated included the change suggested by her
solicitor.)
As the sole surviving appointed estate trustee was in fact Shirley’s solicitor, he searched for Shirley’s next-of-kin.
He discovered there were five, all being Shirley’s first cousins. Two of those cousins were Bonnie McGuire and
Roger Bird, the other named residuary beneficiaries. On an application by the estate trustee to determine the
proper intestate heirs of the estate, the five cousins were declared to be Shirley’s nearest next-of-kin, but an
order was made delaying the distribution, pending a further application as to whether there was in fact a partial
intestacy. It was that application that was before Belobaba, J.
According to Bonnie’s affidavit evidence, Shirley had no connection with the other three cousins and considered
that Bonnie and Roger and their children were her “only family left” after Aunt Bea died. In the words of
Belobaba, J., the other three cousins were “virtual strangers.” Counsel for Bonnie and Roger submitted that
Shirley would never have intended that any part of her estate would go to three people she didn’t know. As
further proof of this contention, counsel pointed out that both Bonnie and Roger were also legatees of cash
bequests made elsewhere in Shirley’s will.
Belobaba, J. started his analysis with an assertion regarding what happens to a lapsed gift of residue. Unless
there is a contrary intention in the will, a lapsed residuary bequest passes as on an intestacy. (The Ontario cases
that assert this principle usually advert to section 23 of Ontario’s Succession Law Reform Act 1 and then declare
that it has no application to a gift of residue.) The next step in Belobaba, J.’s analysis was to consider where this
contrary intention may be found. He frames the issue thusly:
The more specific issue, then, is how this court should proceed to determine if there is “a contrary intention
in the will.” Am I entitled to sit in “the testator’s armchair” and consider the surrounding circumstances,
including the affidavit evidence about Shirley’s family and feelings, in order to determine her intention in
this regard, or am I limited to examining only the language in the Will? If the Will says nothing about what
should happen if Shirley is predeceased by Aunt Bea, am I entitled, in effect, to add new language to the
Will to reflect her unstated intention and fill in what Shirley herself may have omitted? Or, is this the very
case where the lapsed residuary gift should logically and properly go to the next of kin?
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The balance of the judgment goes on to sample a number of cases in which the “armchair rule” is considered.
Ultimately, Belobaba concludes that he is entitled to consider the surrounding circumstances and, in particular,
the close relationship Shirley had with Bonnie and Roger, on the one hand, and her essentially non-existent
relationship with the other three cousins. With the benefit of the affidavit evidence, he concludes that Shirley
intended that her Aunt Bea’s portion would go only to Bonnie and Roger.
At first blush, the manner in which Belobaba J. analyzed the problem before him appears to be flawed. The issue
confronting him was clearly stated: should the failed residuary bequest lapse? But the purpose of the “armchair
rule” is to find meaning where the language of the will is unclear or ambiguous, either as to the subject matter
of a bequest or as to the person(s) intended to receive it. It is not available, as Belobaba, J. put it, “in effect, to
add new language to the Will to reflect [the testator’s] unstated intention and fill in what [the testator] may have
omitted.” This would be re-writing the testator’s will – something that courts are not permitted to do as part
of the process of will construction.
That is not to say that Belobaba, J. was wrong to look at the surrounding circumstances. However, he appears to
have overlooked what the writer submits was the proper line of inquiry; namely, whether the residuary bequest
was (i) a class gift; or (ii) gifts personae designatae. Indeed, nowhere in his reasons for judgment does the phrase
“class gift” appear. Where a testator makes a class gift and one (or more) of the members of the class predeceases
the testator, there is no lapse. Rather, the gift is distributed among the surviving member(s) of the class. Thus,
all that was needed in Mladen to avoid a partial intestacy was a determination that the residue clause constituted
a class gift.
There is a substantial body of jurisprudence on class gifts made by will. It is not easy – but arguably not
necessary – to reconcile the decisions with one another. What it comes down to in every case is whether the
testator intended to make a class gift. And, to ascertain that intention the courts will look at the surrounding
circumstances. According to Feeney’s Canadian Law of Wills (4 th ed.), the traditional leading case on the nature
of a class gift is Kingsbury v. Walter. 2 Lord Macnaghten had this to say:
In my opinion, the principle is clear enough. When there is a gift to a number of persons who are united or
connected by some common tie, and you can see that the testator was looking to the body as a whole rather
than to the members constituting the body as individuals, and so you can see that he intended that if one
or more of that body died in his lifetime the survivors should take the gift between them, there is nothing
to prevent your giving effect to the wishes of the testator.
Where a testator names the persons in the group or mentions their number, it is prima facie not a class gift.
However, there are many cases where the naming or numbering of the group has not prevented the court from
finding a class gift. As Feeney puts it, “[t]he problem is to determine whether the testator was group-minded or
individual-minded.” (While the writer has not conducted a review of the jurisprudence to confirm his hypothesis,
it is reasonable to assume that where the dispute involves a bequest of residue, the bias against intestacy would
militate in favour of a finding of a class gift.)
What is more problematic, as here, is the case where specific – and, especially, unequal -- proportions or percentages
are allocated to the named members of the group. It is tempting to suggest that in such cases, the balance should
be tipped in favour of a determination that the testator was “individual-minded”, rather than group-minded.
Before the Mladen decision, there were two decisions -- both from Alberta -- that involved such a scenario. In
only one of those cases was there a finding of a class gift.
In Re Allan Estate, 3 the testator’s will directed the residue to be split into two equal shares. The will directed the
first of these shares to be further subdivided and distributed among seven named individuals (each bequest being
contingent on the individual’s surviving the testator) in fractions that, taken together, would have disposed of the
entire share. When two of the named individuals predeceased the testator, the question arose as to whether the
fractions that would have gone to those two individuals should be distributed among the other named individuals.
The court determined that the fractions in question were instead to be added to the other share of the residue.
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While this might seem to support the view that an uneven allocation among named individuals would never
be a class gift, the testator’s language used to direct disposition of the other share evidently bore on the court’s
decision. The testator directed her executor “[t]o pay or transfer the remaining residue of my estate to the
Pentecostal Tabernacle of Calgary”. (emphasis added). The court found the fact that the testator did not refer
to “the other share” of the residue suggested that she intended that the fraction allocated to any predeceasing
individual would be added to the charitable bequest. 4
Lindblom Estate v. Worthington 5 dealt with a holograph will that contained only a list of names of individuals,
with percentages set opposite each name. 6 Because two of the named individuals predeceased the testator, it
became necessary to determine whether the testator intended a class gift (in which case the percentages intended
for the deceased individuals would be reallocated among the other named individuals) or gifts personae designatae
(with the result that those percentages would pass as on an intestacy). Based on affidavit evidence, the court
found there was “sufficient commonality amongst [the named] individuals in that they were all extended family
members who played a significant role in [the testator’s] life.” Terming it “an extremely close case”, the court
found that the testator intended a class gift to the named individuals and ordered that the percentages intended
for the predeceasing beneficiaries be distributed among the remaining named beneficiaries in proportion to their
respective shares.
Obviously, the problem in Mladen would have been avoided entirely if the will had expressly addressed the
contingencies that one or more of the named residuary beneficiaries might predecease Shirley. This issue was
especially acute in this case because of the variation in the fractions that the residuary beneficiaries were respectively
entitled to receive. Even if one were to dismiss the possibility of an intestacy, how could one possibly know
Shirley’s intention for re-allocating the share of a predeceasing residuary beneficiary?
In this case, it was easy because Roger and Bonnie were treated equally in the residue clause. But suppose Bonnie,
rather than Aunt Bea, had predeceased Shirley. Assuming Shirley had wished to avoid a partial intestacy, what
re-allocation would she have wished for the 25% of the residue that was to go to Bonnie? Perhaps the fractional
allocation in the residue clause reflected Shirley’s intention that Aunt Bea, if she survived, would always have
one-half of the residue, but no more. If so, the 25% would have been added to Roger’s share. Or perhaps the
fractional allocation reflected Shirley’s intention that Aunt Bea, if she survived, would always have twice what
either Bonnie or Roger would have. If so, the 25% would have been split so that 2/3 of it would go to Aunt
Bea and 1/3 of it would go to Roger. No amount of logic will yield the correct answer. It’s a matter of “by guess
and by golly”.
One can readily see how the lay person who opts for a self-made will, whether in holograph form or by using a
will kit, might create the type of difficulty that occurred in Mladen. But for a solicitor – at least one who chooses
to make wills a part of his or her practice -- the drafting of a residue clause in this manner is indefensible.
* Barry S. Corbin, Corbin Estates Law Professional Corporation.
1
Section 23 of the Succession Law Reform Act states:
Except when a contrary intention appears by the will, property or an interest therein that is comprised or
intended to be comprised in a devise or bequest that fails or becomes void by reason of,
(a) the death of the devisee or donee in the lifetime of the testator; or
(b) the devise or bequest being disclaimed or being contrary to law or otherwise incapable of taking effect,
is included in the residuary devise or bequest, if any, contained in the will.
2
[1901] A.C. 187 (H.L.).
3
[1994] A.J. No. 795 (Surr.Ct.).
4
The court was also aided in its conclusion by the absence of any gift over provision in the disposition of the
first share (except for one fraction that was bequeathed to a couple, or the survivor of them).
5
30 E.T.R. (2d) 106 (Alta. Surr.Ct.).
6
As the allocations totalled only 80%, the court held that 20% of the estate passed as on an intestacy.
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Miller v. Staples Estate et al, (2006), 278 D.L.R.
(4 th ) 535 (N.S.C.A.)
Sean Lawler*
Where a person dies intestate, and without a spouse, the Succession Law Reform Act requires that the deceased’s estate
be distributed equally among his or her ‘issue’. 1 DNA evidence can determine whether a claimant purporting to be
a ‘long-lost’ son or daughter is, in fact, a child of the deceased, and therefore entitled to a share of the estate. 2
There is little case law in Ontario to guide the Court on when to compel someone in these circumstances to
submit to a DNA test. 3 However, the recent decision from the Nova Scotia Court of Appeal in Miller v. Staples
Estate 4 may be of help. In that case, the Court held that a DNA test should be ordered whenever there is “plausible
evidence” that the claimant’s parentage is in question.
The Law in Ontario
Sections from two Ontario statutes are relevant to the issue of Court-ordered DNA testing. The first is section
105(2) of the Courts of Justice Act, 5 which reads:
Where a physical or mental condition of a party to a proceeding is in question, the Court, on Motion, may order
the party to undergo a physical or mental examination by one or more health practitioners.
Section 10 of the Children’s Law Reform Act 6 specifically governs DNA tests. It says:
On the application of a party in a civil proceeding in which the Court is called on to determine a child’s parentage,
the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in the order
granting leave and to submit the results in evidence.
DNA tests to determine parentage are most commonly sought in child support applications. In that context, a
court will order a blood/DNA test unless:
(1) it can be shown that the actual process of conducting a blood test might prejudicially affect the health of the
child; or
(2) the actual request for leave to obtain the blood test is made in bad faith 7
Section 10 applies to any “civil proceeding in which the Court is called on to determine a child’s parentage” and not
just to child-support applications. 8 However, this test may not be as suited for claims against estates as it is for
child-support applications. For instance, in many cases, the claimants to the estate of someone who died intestate
are adults, and so the Court has less reason to be sensitive about the “health of the child” than in cases where the
child is a minor. Moreover, child-support applications are only one type of relief sought in family-law litigation.
There is a greater scope for ulterior motives - ‘bad faith’ - in this context than in an estates application where the
only issue is whether someone is entitled to share in the estate of someone who died intestate.
Staples Estate
In Staples Estate, the Nova Scotia Court of Appeal said that a claimant to the estate of someone who died intestate
may be compelled to submit to a DNA test so long as there is some corroborating evidence that the claimant is
not the biological child of the deceased.
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Between the 1950’s and the 1980’s, Daniel Staples was married to Marilyn Allen (the “Mother”). In 1960, they
had a daughter, Rhoda Miller. Staples and the Mother separated in 1965, reconciled in 1966, and eventually
divorced in the 1980’s. Sheri Hanes was born to the Mother in 1966, i.e., during the period of reconciliation.
Staples did not marry again after his divorce from the Mother, and died without a Will in 2003. Both Miller
and Hanes claimed entitlement to a portion of Staples’ estate pursuant to Nova Scotia’s Intestate Succession
Act. 9 However, Miller claimed that she was entitled to all of Staples’ estate, and denied that Hanes was Staples’
biological daughter.
There was evidence that Mother had had sex with another man and with Staples during her separation from Staples.
There was conflicting evidence about whether Staples treated Hanes as his daughter when she was young, though
it was undisputed that he did treat her as his daughter when she was grown. The Mother did not participate in
the litigation, and did not file an Affidavit in the Motion. There was conflicting hearsay evidence about whether
the Mother believed that Hanes was Staples’ biological daughter. Miller brought a Motion to compel Hanes to
give a blood sample, which would be subjected to a DNA test. Significantly, Staples’ body was not needed for
the DNA test. Staples’ brother was willing to provide blood and, apparently, this was sufficient. 10
Nova Scotia does not have an equivalent to s. 10 of the CLRA. Rather, Rule 22 of Nova Scotia’s Civil Procedure
Rules says “where the physical or mental condition of a party is an issue, the Court may, at any time on the application
of an opposing party or on its own Motion, order the party to submit to a physical or mental examination by a qualified
medical practitioner”. This is similar to s.105(2) of the CJA, although, unlike s.105(2), Nova Scotia’s Rule 22
gives the Court jurisdiction to order a medical practitioner to “have analysis made of samples of blood and bodily
fluids....” 11
The Motions judge denied Miller’s motion. Aside from the legal considerations, His Honour accepted that
Hanes believed that she was Staples’ daughter, and was uneasy at the prospect of upsetting such an important
part of her identity.
The Court of Appeal overturned the Motions Judge’s decision, and ordered the DNA test. The Court of Appeal
rejected the Motions judge’s conclusion that the composition of a person’s blood is not a “physical...condition
of a party...in issue”. It preferred case law in other provinces that accepted that blood composition is a ‘physical
condition’, and may be the basis for a court-ordered medical examination. 12
The Court of Appeal also rejected the Motion judge’s conclusion that DNA tests must be used only rarely, or
else “the proverbial flood gates [would open] leading to the ‘automatic’ request for blood tests in every probate matter”.
The Court held that:
“It is not suggested that ‘any’ heir could be challenged, that there will be ‘automatic’ requisitions for all siblings to
‘line-up’ for blood tests, that orders will be granted ‘upon request’ in every case, or that ‘complete strangers’ could
ask for testing to see if they might be an heir of an intestate”
Underlying the Court of Appeal’s decision is the view that DNA profiling is a highly reliable method to determine
parentage. Refusing a DNA test in this case would mean that “the ultimate decision will be based on 40 year old
hearsay, evidence of declarations against interest and the ancient presumption of legitimacy...” The Court simply could
not ignore the ‘silver bullet’ of DNA testing when faced with the uncertainty of more traditional evidence.
In respect of the Motion Judge’s moral qualms, the Court of Appeal was comforted by the likelihood that such
orders would rarely be sought, because disputes about parentage generally arise, and are resolved, in the course
of child-support applications when the child is young.
To minimize the risk of ‘floodgates’ opening, the Court of Appeal held that “before using Rule 22 to order DNA
testing in a contested estate, the Court should be satisfied that there is a clear factual foundation or some plausible
evidence supporting the proposition that the person is.... a lawful lineal descendent”. In this case, there was ample,
though contested, evidence that Hanes was not Staples’ biological daughter.
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Conclusion
Ontario’s statutory regime governing court-ordered DNA tests differs from the one in Nova Scotia. However,
both regimes give the Court the discretion to make such an order in appropriate circumstances. The test that
Ontario courts use to determine whether to make an order compelling someone to submit to a DNA test was
developed in the context of child-support applications, and may not be suitable to cases where there is a dispute
over how many ‘issue’ of an intestate deceased there are to share in the estate. Ontario lawyers may find Nova
Scotia Court of Appeal’s decision in Staples Estate useful when arguing whether the Court should make such an
order.
* Sean Lawler, Shibley Righton LLP.
1
R.S.O. 1990, c. S-26. Section 47.
2
Unless the claimant is adopted. See s.1 of the CLRA and ss. 158 and 159 of the Child and Family Services Act.
3
Kimberly A. Whaley, “The Use of DNA Testing in Contested Estate Matters” (2004) 23 E.T.P.J. 140 at page 152
[hereinafter “Whaley’s Article”]
4
[hereinafter “Staples Estate”]
5
R.S.O. 1990, c. C.43, as amended [hereinafter “CJA”]
6
R.S.O. 1990, c. C.12, as amended [hereinafter “CLRA”]
7
F.(M.) v. S.(R.) (1991), 83 D.L.R. (4 th ) 717 (Ont.Prov.Ct) at pg. 721; quoted with approval in M. v. H., [1999]
O.J. No. 4360 (S.C.J.) [hereinafter M v. H.]
8
M. v. H. at paragraph 6.
9
RSNS 1989 c.236, as amended. S.4(7) says “If an intestate dies leaving issue, the intestate’s estate shall be distributed,
subject to the right of the surviving spouse, if any, per stirpes among the issue”.
10
In Ontario there is some case law that suggests that the Court has no jurisdiction to order that a DNA test be
made on the deceased. Roussel v. Hill Estate, [1996] O.J. No. 2247 (Gen. Div.). See Whaley’s Article at page 152.
11
Section 105 of the Courts of Justice Act does not have comparable provision.
12
See Bauman v. Kovacs, [1986] B.C.J. No 2188 (B.C.C.A.); M. v. H. at paragraph 7
Online System for Estates List Scheduling
Sender B. Tator*
Starting Monday, October 15, 2007, a seven month pilot project will begin, which will allow for the searching
and booking of available Court time on the Estates List (Toronto).
OSCAR is the name of this exciting project developed by Court Canada in conjunction with the Superior Court
of Justice, Estates Office. OSCAR will offer online access to Estates List schedules and information regarding
upcoming Court hearings. Most notably, authorized OSCAR users will also be able to make Court hearing
reservations online. In order to make a reservation, authorized users will simply have to log in using the e-mail
address provided to Court Canada and OSCAR password, and search for available Court time.
Commencing Monday, October 1, 2007, interested legal professionals can register for OSCAR access by contacting
Court Canada by e-mail at oscar@courtcanada.com or by telephone at 1-800-201-3554. Training will also be
available from Court Canada, and all new Oscar users will be entitled to two Court reservations at no charge,
with each subsequent reservation being subject to a fee of $15.00 (plus taxes).
* Sender B. Tator, Schnurr Kirsh Stephens, Barristers & Solicitors, (416) 860-1057, s.tator@estatelitigation.net.
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Proposal regarding Tariff C
The Estates Subcommittee of the Civil Rules Committee is looking at making a submission to the Civil Rules
Committee to increase the amounts in Tariff C, Solicitor’s Costs Allowed on Passing of Accounts without a
Hearing.
The OBA Executive members are interested in this proposal and agree that the Tariff rates are too low to reflect
the actual amount of work done on passing of accounts. The Executive would like to receive input from members
of the Bar, throughout the Province, to see what other lawyers think about this issue.
The Subcommittee is considering recommending a cost of 25% increase, based upon the rise in the CPI since
Tariff C was created.
Please would you send comments to Susan Stamm at susan.stamm@ontario.ca or Jordan Atin at jatin@hullandhull.com.
Spelling and Grammar Query
Susan J. Stamm*
In our busy practices, it is hard to remember everything we learned in high school. At Deadbeat, we strive to
have perfect spelling and grammar; however, we occasionally do err. In this column, we will include a spelling or
grammar issue that is common in Estates practice. If you would like us to address common errors, please send
an email to susan.stamm@ontario.ca.
When do you use “dependant” and “dependent”? Are they interchangeable?
From the Columbia Guide to Standard American English, 1993, Kenneth Wilson offers this:
The adjective is always spelled dependent and means “hanging from, contingent on, relying on or supported
by, or addicted to”: The necklace has a large diamond with several smaller ones dependent from its setting. I am
wholly dependent on my father’s monthly check. He is said to be drug-dependent. In American English the noun
is nearly always spelled dependent too, as in He declared three dependents on his tax form, although occasionally
you will see the noun spelled the British way, dependant.
Therefore, in the US, the spelling “dependent” is used for both a noun and an adjective.
However, in the UK (and in Canada), the noun is “dependant” not “dependent”. It is this word that appears
in Part V of the SLRA, such as:
s. 58(1) Where a deceased … has not made adequate provision for the proper support of his dependants …
However, like the US usage, the adjective in the UK (and in Canada) is “dependent”, as in “the child is dependent
on the support of her mother”.
To depend is also a verb as in “he depends on his mother’s support”. The usage is, of course, the same in the US.
* Susan. J. Stamm, Counsel, Office of the Children’s Lawyer, (416) 314-8037, susan.stamm@ontario.ca.
Deadbeat • October 2007 15

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Brown Bag Lunches Start Again
Suzana Popovic-Montag and Diane Vieira*
We returned from our Summer break and had our first Brown Bag Lunch of the Fall season on September 18, 2007.
We began the meeting by discussing whether surviving spouses, who elected in favour of equalization, could later
change their minds. Previous case law indicated that a Court could not undo a surviving spouse’s poor choice,
but a recent decision suggests that a Court may have some residual discretion to relieve a spouse of his or her
mistake in making an election. In this recent 2007 decision (Iasenza v. Iasenza Estate, [2007] O.J. No. 2475
(Ont. S.C.J.), the surviving spouse was allowed to revisit her decision when it turned out her net family property
was higher than her husband’s and the Estate Trustees were not forthcoming with all information.
We also looked at how solicitors should advise spouses who come to them requesting mirror wills. A number of
participants offered insightful suggestions on how to advise spouses on the contractual implications of mirror wills.
Practice tips shared included the creation of a side agreement between the spouses and suggesting independent
legal advice for both parties.
We discussed whether the use of standard clauses in wills was sufficient, or if a more personalized approach was
required when drafting a will. Participants agreed that a more contextualized approach to drafting would be
beneficial, especially if it was likely that the will would be challenged. With respect to will challenges, we also
considered the effectiveness of “no contest clauses” and encouraging clients to disclose the contents of their wills
to family members prior to their death.
The growing demand for incorporating the care of pets into estate planning was discussed as well. The need for
pet trusts continues to grow, and participants exchanged ideas on how to approach the creation of trusts. They
also mentioned different resources that are available to help with planning for the care of a pet once its owner
has died.
We ended our Lunch meeting with an important conversation with respect to a solicitor’s responsibilities,
including the duties of maintaining privilege and confidentiality, when he or she believes an Estate Trustee may
be incapable of managing property. Before signing off, we mentioned a recent decision (Szabo Estate v. Adelson,
2007 CanLII 4588 (ON S.C.)), which allowed a solicitor to have a lien over a client’s file, including the original
will. It will be interesting to see the implications of this decision.
Please join us for our next Brown Bag Lunch, which will be held on October 16, 2007. Hope to see you there!
* Suzana Popovic-Montag, Hull & Hull LLP, (416) 369-1416, spopovic@hullandhull.com.
Diane Vieira, Hull & Hull LLP, (416) 640-4609, dvieira@hullandhull.com.
16 Deadbeat • Volume 26, No. 1

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Section Award Nominations Are Now Open
The Trusts and Estates Section would like to announce that the nominations are now open for the 2008 Award
of Excellence in Trusts and Estates and the 2008 Hoffstein Book Prize. Nominations for both these awards
will close on Friday, January 25, 2007 at 4:00 p.m. Award criteria information and nomination forms are
available on the Trusts and Estates webpage of the OBA website. Click here to get the latest news.
Upcoming Programs
Constructive Trusts and Resulting Trusts 2007: Bringing Order to Chaos
October 19, 2007
Focus: To provide strategic analysis and to obtain excellent constructive trust and resulting trust claims for
married spouses, law spouses, same sex spouses, estate claimants and business
Highlights will include:
• Claims against family homes, businesses, pensions, farms, recreational properties, and estates
• Recovering property transferred to a spouse or child
• The use of expert and demonstrative evidence and the systematic organization of claims and defences in
a discretionary area
• Tips and views from the bench in this changing and emerging area of law
Superior Court of Justice-Estates Office Online System for Court Attendance
Reservations System (OSCAR) - DEMONSTRATION
October 23, 2007
The Superior Court of Justice, Estates Office is conducting a pilot project of OSCAR. Representatives
from the Estate’s Office and CourtCanada will be on hand to demonstrate the OSCAR system and provide
information on: cost, how to register to use the system and how to make a reservation. The demonstration
session is offered at NO Charge to OBA members and/or their support staff.
Topical Issues in Will Interpretation
October 23, 2007
The lawyer practising in trusts and estates dreads the day when a will s/he drafted becomes the subject of a
will interpretation application. Our speakers will discuss how the courts have dealt with selected issues in
will interpretations and help you avoid pitfalls in drafting.
Passing of Accounts: Getting Cost Effective Results
November 29, 2007
Focus: A practical, intermediate level program that takes you through every stage of a passing of accounts
from preparing the accounts to trial
Highlights will include:
• How to prepare accounts and objections to passings of accounts
• Responding to Notices of Objection on behalf of the fiduciary
• What the Public Guardian and Trustee and the Office of the Children’s Lawyer look for when they review accounts
• Update on compensation
• Tips for litigating passing of accounts: pretrial and trial
• How to avoiding contested passings of accounts
Deadbeat • October 2007 17

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Newsletters Now Electronic: Message from the
Chair of Sections
OBA Section Newsletters will now all be produced in
electronic format and sent to you by e-mail. This is a
transition that provides many enhancements in service
and delivery:
• instant hyperlinks to cases, legislation,
papers, and other sources cited;
• inclusion in Thomson Carswell’s legal e-index
for enhanced legal research;
• recognition of authors through the Index to
Canadian Legal Literature;
• members will receive time-sensitive material
expeditiously;
• extensive universal access to timely materials
regardless of geographic location.
For those Sections in which newsletters have remained
in print format, this message is primarily addressed. We
appreciate the challenges inherent in this change.
Remember, one click on the print button when it
arrives in your (or your assistant’s) inbox, will give
you the newsletter in the familiar printed form faster
than snail mail. You can still read it on transit or
while languishing in the hallowed halls of justice. We
believe you will appreciate the electronic format and
the convenience of instant hyperlinks to the source
materials when you start using it.
Inundation by e-mails is a major increasing challenge.
This challenge will not go away. The need to organize
and instantly differentiate types of e-mails is critical
to maintaining sanity! What better time to take a
few moments to organize your e-mail filing system
than now! We offer the following basic observations
for starters:
• Most e-mail programs have a ‘Rules’ feature. Rules
can help you manage your inbox by automatically
re-routing e-mails to a particular folder.
• You can have a folder for each Section to which
you belong.
• To a limited extent, you can colour code
incoming mail: so OBA materials could appear
in a different colour. This differentiates them
from client work. It could trigger you to make a
print version or re-route to a file for later viewing
or printing.
• You could have e-newsletters e-mailed to your
assistant, to print for you, if you prefer them in
that format – but watch – we believe you will
prefer the benefits of the electronic version, once
you start using them in that format! Once you
have read the printed version you can return to
OBA.org to access the footnoted materials, for
more in-depth consideration.
• Indeed you will be able to access the e-
newsletters from anywhere, any time you have
Internet access.
Useful Sources for systems to organize e-mails:
• Top Ten Technology Tips (And How to Use
them) – Dan Pinnington and David J. Bilinsky
http://www.practicepro.ca/TopTenTechTools.pdf
• Organizing e-mails - Indiana University -
University Information Technology Services
http://uits.iu.edu/scripts/ose.cgi?amar.ose.help
• 10 Tips for Organizing your E-mails - Web
Worker Daily - http://webworkerdaily.
com/2007/02/15/10-tips-for-organizing-your-email/
In Sections, we are committed to providing the
best quality support for your practice, and the most
affordable (our cost) basis. We believe that there is no
better investment for your professional development
dollar than OBA Sections, and we are constantly, and
with your input, striving to do better. We like to hear
your comments – good or bad. Please let us know how
we can help you better.
If you do not have an e-mail address or if you practise in
an area that does not have broad band Internet access,
please call us at 1-800-668-8900 and ask to speak to a
Sections staff member.
Yours sincerely,
Erica L. James
Chair of Sections
18 Deadbeat • Volume 26, No. 1

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National Pro Bono
Mentorship Program
The National Pro Bono Committee of the CBA
is looking for mentors for its new Pro Bono
Mentorship Program. Mentors will provide their
mentees with insights and ideas to support their pro
bono work. This may mean describing how to set up
files for a pro bono client, how to find sources to pay
disbursements on a case, how to manage clients with
multiple needs, or giving guidance on a particular
area of law in which the mentee is providing pro
bono legal services.
Mentors are practicing or retired members of a
provincial or territorial law society, or the Chambre
des notaires and members of the CBA. You do not
need to have experience doing pro bono to be a
mentor. Mentors help by sharing their knowledge
and experience so that mentees can take on pro
bono legal work.
The Mentorship Program will be officially launched
once a roster of potential mentors is established. To
become a mentor, or if you have any questions,
please contact Kerri Froc at kerrif@cba.org or
1-800-267-8860.
Le programme
national de mentorat
pro bono
Le Comité sur les services juridiques bénévoles
de l’ABC est à la recherche de mentors pour son
nouveau programme de mentorat pro bono. Les
mentors partageront leurs points de vue et leurs
idées avec leurs mentorés dans le but d’appuyer le
travail bénévole de ces derniers. Ainsi, les mentors
pourraient être appelés à décrire comment gérer un
dossier pro bono pour un client, comment trouver
les ressources pour payer les débours d’une affaire,
comment gérer les clients aux besoins multiples ou
à donner des conseils relatifs à un domaine de droit
spécifique dans le cadre duquel le mentoré fournit
des services juridiques bénévoles.
Les mentors sont membres, pratiquants ou à la
retraite, d’un barreau provincial ou territorial ou de
la Chambre des notaires et sont également membres
de l’ABC. Il n’est pas nécessaire d’avoir l’expérience
du travail pro bono pour devenir mentor. En effet,
les mentors aident en partageant leurs connaissances
et leur expérience pour que les mentorés soient en
mesure d’accomplir leur travail juridique bénévole.
Le programme de mentorat sera officiellement lancé,
une fois la liste des mentors potentiels établie. Si vous
désirez devenir mentor ou si vous avez des questions,
veuillez communiquer avec Kerri Froc à kerrif@cba.
org ou au 1-800-267-8860.
Deadbeat • October 2007 19

Section Executive 2007-2008
Chair: Jordan M. Atin
c/o Hull & Hull LLP (416) 369-0335
jatin@hullandhull.com
Past Chair: Corina Weigl
Fasken Martineau DuMoulin LLP
(416) 865-4549
cweigl@tor.fasken.com
Vice-Chair: Kimberly Ann Whaley
Whaley Estate Litigation
(416) 927-0891 x150
kim@whaleyestatelitigation.com
Secretary (Sections):
Suzana Popovic-Montag
Hull & Hull LLP (416) 369-1416
spopovic@hullandhull.com
Newsletter Editor: Susan J. Stamm
Office of The Children’s Lawyer
(416) 314-8000
susan.stamm@ontario.ca
Member-At-Large: Sean Lawler
Shibley Righton LLP (416) 214-5283
sean.lawler@shibleyrighton.com
Member-At-Large: Mitchell Leitman
Merovitz, Potechin LLP (613) 563-7544
mitch@mpottawa.com
Member-At-Large: Sender B. Tator
Schnurr Kirsh Stephens (416) 860-1057
s.tator@estatelitigation.net
Member-At-Large: Craig R. Vander Zee
Hull & Hull LLP (416) 369-0316
cvanderzee@hullandhull.com
Member-At-Large: Mary Wahbi
Basman Smith LLP (416) 860-1948
mwahbi@basmansmith.com
Member-At-Large: Melanie A. Yach
Aird & Berlis LLP (416) 863-1500
myach@airdberlis.com
Editor:
Susan J. Stamm
OBA News Editor:
Vickie Rose
Graphic Designer:
Simon Bluestein
Proofreader:
Lynn Wilson
Program Coordinator: Joanna J. Ringrose
ringroselaw@cogeco.ca
Member-At-Large: Ann Elise Alexander
Torkin Manes Cohen Arbus LLP
(416) 777-5455
aalexander@torkinmanes.com
Member-At-Large: Robert Gordon Coates
(416) 925-6490
robert@rgcoates.com
Member-At-Large: Ed Esposto
RBC Private Counsel Inc. (416) 956-9365
ed.esposto@rbc.com
Staff Liaison-AGR&CC: Catherine Brennan
Ontario Bar Association (416) 869-1047
cbrennan@oba.org
Staff Liaison: Peter Guennel
Ontario Bar Association
(416) 869-1047 x340
pguennel@oba.org
Staff Liaison: Geraldine Hyland
Ontario Bar Association
(416) 869-1047 x320
ghyland@oba.org
Member-At-Large: Jan Goddard
Jan Goddard & Associates (416) 928-6685
jgoddard@jangoddardlaw.com
Member-At-Large: Susan J. Heakes
Heenan Blaikie LLP (416) 643-6833
sheakes@lsuc.on.ca
Member-At-Large: Danielle R. Joel
Borden Ladner Gervais LLP
(416) 367-6000
djoel@blgcanada.com