Today’s blog is written by Latoya Brown, Articling Student at Fasken LLP.

The tragic death of soap opera actress of “Another World” Anne Heche, was an unexpected loss for her fans and family. She succumbed to her injuries on August 11, 2022, a week following a car accident that left her in critical condition. Heche died, leaving behind her two sons, 20 year old Homer Laffoon, 13 year old Atlas Heche Tupper, and no will. The absence of a will expressly directing one’s choices, usually leads to conflict between interested parties. This was no different with the Heche estate. Not only was there a dispute over who should be appointed executor over her estate, but also a dispute over the appointment of a guardian over Heche’s minor son Atlas’s assets. In today’s blog post, we will consider the Heche estate and the implications such a scenario would have on Ontario families with minor children.

The dispute over the appointment of executor began shortly after Heche’s death. In California where Heche resided, intestacy laws provide that in the absence of a spouse or domestic partner, children are next in line for the executor appointment.[1] As Heche died without a spouse and no legal domestic partner, her son Homer was named executor of her estate. Similarly, in Ontario, if one dies intestate, a family member resident in Ontario, may apply to be the estate trustee. However, if there is a dispute as to who should be appointed, the matter is referred to a judge to decide.

The role of executor is one not to be taken lightly. It is a significant responsibility, which can lead to personal liabilities for the executor.  This is a task that a parent may not desire their children, let alone a young adult child like Homer, to acquire such responsibility during a time of mourning, even though they may be eligible for the role. A will appointing an executor give’s parents, who understand the strengths and limitations of their children, the choice of who to appoint. Furthermore, a will appointing an executor gives parent’s of minor children the opportunity to choose someone who may already have a bond with the children and have their best interests in mind.

Another important estate planning consideration for parents is leaving assets to minor children. Although there may be a surviving parent, said parent is not presumptively entitled to be the guardian over their child’s property. In the case of the Heche estate, James Tupper, the father of Heche’s son Altas, was embroiled in a dispute with Homer over who would be guardian ad litem. Meaning, who will have control over Atlas’s portion of the estate until he reaches the age of majority. Atlas’ father was eventually denied such guardianship, the judge citing that Homer and Atlas both have the same interest in the estate and that Homer is an appropriate guardian. Since Atlas lives with his father, this illustrates the fact that a surviving parent, although they have custody, may not be appointed guardian over their child’s assets.

In Ontario, the process to become guardian of a child’s assets can be time-consuming and costly. It involves creating a detailed financial plan of how the assets will be managed until the child reaches 18. This financial plan must be approved by the Children’s Lawyer and the court, of which the associated cost with this accounting may reduce the child’s inheritance. A will appointing a guardian of property may avoid the courts. In addition, a parent may also want to consider the implications of their child receiving a windfall at the age of 18. Parents should consider whether the child will be prepared and financially responsible with such assets at 18. Should there be any doubts, a trust can be used to extend payment of the inheritance to a later date past the child’s 18^th birthday, or to have installment payments staggered at various ages, or direct that funds are used in specific ways. The trust can be customized to meet the needs of the child and parents’ discretion.

Another notable consideration is decision making responsibility (formerly custody) of minor children. In Ontario, unless entitlement has been lost, parents of a minor child are equally entitled to decision making responsibility. A parent may also pass on this decision making responsibility by will, but only if (1) the person making the appointment is the sole person with decision making responsibility or (2) if both parents died at the same time or circumstances make it unclear who survived the other.[2] In any case, testamentary appointments of decision making responsibility are temporary, they expire 90 days after the appointment takes effect. The appointed person must then apply within the 90 days to the court for a more permanent appointment, where the best interests of the child is taken into consideration.[3] Although initially temporary, testamentary appointment of decision-making responsibility are still important as the court takes into account the effect of past appointments, the established relationship, as well as the child’s established routines.

While we have discussed estate planning considerations, in case of death, a power of attorney is an important estate planning tool that is utilized while still alive. A power of attorney for health and property permits a person to make medical or financial decisions respectively, on your behalf should you become incapacitated. For example, the appointment of a power of attorney for property allows the household to continue to run, and one’s children provided for should you become unable to make financial decisions.

Every family is different with various needs that may change as life unfolds. However, an estate plan can be customized to such needs and should be amended as the family grows and changes and one’s assets change. The important factor is to start. The Heche estate is an example of the unnecessary delays, costs and disputes that may ensue if estate plans are not developed, especially when minor children are involved.

[1] Probate Code s. 8461

[2] Children’s Law Reform Act, R.S.O. 1990, c. C.12 s. 61(4)

[3] Children’s Law Reform Act, R.S.O. 1990, c. C.12 s. 61(7)