eLaw - Property & Succession Update

September 2014 - No. 71

ISSN 1916-3916

In This Issue

FMA Provisions Substantive and Do Not Apply in Estate Paternity Dispute: MBCA

Lawyer Not in Conflict: MBQB

Beneficiaries Sanctioned for Unfounded Motion: MBQB

Court Offers Direction on Gift Clauses Involving Corporate Assets: MBQB

Legislative Update

Rent Increase Guideline 2015

Recommended Reading

Pitblado Lectures

Fall CPD: LSM

Upcoming STEP Programs

FMA Provisions Substantive and Do Not Apply in Estate Paternity Dispute: MBCA

In Henry v. Henry Estate et al., 2014 MBCA 84, the Court of Appeal upheld the lower court ruling that ss. 20(6), 20(7) and 23 of The Family Maintenance Act are substantive, not procedural, and therefore do not apply in a Manitoba proceeding to establish paternity which the parties had agreed would be governed by the substantive laws of England and the procedural law of Manitoba.

Lawyer Not in Conflict: MBQB

In Estate of Eva Hanks, 2014 MBQB 169, the court declined a request by the estranged husband of the deceased to remove the estate solicitor due to a conflict of interest. The husband alleged that at an unscheduled meeting many years earlier the solicitor had given him legal advice concerning the financial affairs of the couple. That lawyer later acted for the wife in protracted and unfinalised separation negotiations, during which time the husband never raised the conflict issue. The court characterized the case as "another situation where the complexity and sophistication of property and civil rights as embodied in 'family' law intersects with 'civil' or probate law thus putting in question the sometimes rigid divisions within our court," and found that, even if such a meeting did take place, in effect the husband's actions over the ensuing years implied his acceptance or consent and precluded him from the relief he sought.

Beneficiaries Sanctioned for Unfounded Motion: MBQB

In Wing v Wojtowicz et al, 2014 MBQB 164, the court considered whether and what costs to order against two disgruntled beneficiaries who agreed with the requested passing of accounts on their father's estate, but brought a notice of motion asking the court to inquire into the deceased's property and order the executrix to provide them with bank statements going back several years. The affidavit in support of their motion contained "only the deponents' suspicions or bare allegations of past irrelevant conduct of the executrix," said the court, and was arguably "an attempt to establish a discovery beachhead for anticipated litigation against the executrix." The court ordered $1500 costs against each of them with respect to the unsuccessful motion, but declined to order solicitor-client costs regarding the passing of accounts because their behaviour in insisting on the formal passing, while "perhaps... improperly motivated," was not so egregious as to justify such an order.

Court Offers Direction on Gift Clauses Involving Corporate Assets: MBQB

The court rejected the executor/beneficiary's argument in Zindler v. The Salvation Army et al., 2014 MBQB 117, that the testatrix could not gift land or assets owned by her corporation. The court found there were clear instructions directing the executors to do what was necessary to transfer the corporate assets from the corporation to the estate in order to complete the testatrix's wishes. In addition, statutory authority in Manitoba (s. 47(2) of The Corporations Act) provides that a corporation may treat an executor of the estate of a deceased shareholder as a registered shareholder entitled to exercise all of the rights of the deceased shareholder. Section 47(7) also entitles a personal representative who provides the correct documentation to become a registered shareholder.

Legislative Update

The Condominium Act and Amendments Respecting Condominium Conversions (Various Acts Amended) has been proclaimed in force effective February 1, 2015. The new act and regulations make major changes to the development, buying and selling, ownership, and operation of condominiums in Manitoba. Details of the new regime can be found in the Manitoba government's Guide to the Condominium Act (especially the highlights section), in the explanatory note to Bill 40, and in this article by Albina Moran from the February 2013 CBA National Real Property section newsletter.
The Residential Tenancies Amendment Act was proclaimed in force August 1, 2014, making key changes to the rent regulation system as described in the explanatory note to Bill 40. The changes affect pet damage deposits, landlord obligations when renovating, the appeal period for an order for possession, tenancy terminations, leave to appeal, and the regulation-making authority with respect to the annual rent increase guidelines. See also Manitoba Regulation 191/2014, which came into force on the same day as the Act.
The Planning and Land Dedication for School Sites Act (Various Acts Amended) was proclaimed in force July 1, 2014, requiring planning authorities including the City of Winnipeg to consult with school boards on the need for school sites as part of the planning and development process. See the explanatory note to Bill 48 for further details.

Rent Increase Guideline 2015

The Manitoba rent guideline for 2015 has been set at 2.4 per cent, based on a new formula linked to the consumer price index. Details of the new guideline and exceptions to it can be found in this notice and in Manitoba Regulation 190/2014.

Recommended Reading

The Last Word - the latest issue of the CBA section newsletter contains articles on passing accounts, testamentary trusts and tax changes, and the doctrine of fraudulent concealment.
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Are banks eating estates lawyers' lunch? - this Law Times article addresses concerns lawyers are being marginalized in the estate planning business as financial institutions develop wealth management packages to capture boomer wealth.
Digital life after death: Practice tips for estate planning and administration - this Fillmore Riley blog post discusses how to deal with clients' digital assets both before and after death.
Challenging the predatory marriage - this Lawyers Weekly article highlights two New York cases which suggest new ways to challenge predatory marriages given the failure of the common law doctrine of capacity to keep pace with the rapid development of property rights now attached to marriage.
Small estates need better access to probate: law commission - this Legal Feeds blog post references the recently released Ontario Law Reform Commission consultation paper on Simplified Procedures for the Administration of Small Estates and possible options for reform of the probate process.

Pitblado Lectures

The 2014 Isaac Pitblado Lectures, Accessing Justice: Beyond Barriers, will take place November 28-29, 2014 at the Fort Garry Hotel. Presenters will examine how access to justice demands may affect legal education, professional practice, regulation, and ethics; and make the business case for law firms to participate in access initiatives. Register by October 17 for the early bird registration rate.

Fall CPD: LSM

There are many programming options to choose from this fall at the Law Society: Property and

Property and Estates Programs

Anatomy of an Estate - Presenters from Tradition Law LLP will address some of the complex and less well-known rules of estates practice at this afternoon program to be held October 16, 2014, from 1:00 to 4:00 pm at the Law Society classroom.

New Legislation: The Municipal By-Law Enforcement Act - Courts will no longer enforce municipal by-law infractions once this new legislation is proclaimed and municipalities need to prepare now for this major change. Learn what you need to know to help your municipal clients set up new systems at this November 7, 2014 lunch program.

Can't We all Just Get Along: Using Estate Planning Agreements to Address Family Issues - With remarriages on the rise, estate planning for second families is becoming increasingly more important. Register now to attend this lunch hour program in person or by tele-presentation on December 8, 2014.

Practice Management and Ethics Programs

Everyday Ethics Series - Register for multiple sessions in this 6 month series of lectures on ethics issues featuring Allan Fineblit, Q.C. and save money as you learn what you need to know to practise responsibly.

Limited Scope Retainers: Tips and Traps (Webinar) - Law Society staff will tell you what you need to know to ensure you are acting safely and ethically when using limited scope retainers in your practice in this lunch hour webinar on September 30, 2014. Discounts apply for group registrations.

Perfecting the Twenty-First Century Law Practice - join practice management guru Jim Calloway as he provides guidance on such topical issues as the future of law practice, techno-ethics, and alternatives to the billable hour. The all-day program on October 3, 2014 will conclude with the popular 60 hot tips in 60 minutes, a fast-paced review of tips and ideas you will put to immediate use in the office.

The Approximately 11th Annual Accommodation in the Workplace - don't miss the 11th installment of this popular program co-presented by the MBA and the LSM on October 24, 2014. Presenters will review such recent developments in accommodation law as accommodating family status and choosing the right forum for complaints.

Upcoming STEP Programs

The Winnipeg branch of the Society of Trust and Estate Practitioners (STEP) is offering a full slate of educational sessions this year, including programs on predatory marriages, the doctrine of righteousness, RESPs, US issues, and estate administration and digital assets, among others. To register, or for information on how to become a member of STEP, check their website.

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