April 4 2022 rbbm.
“Is my Will really public knowledge?” Lessons from Sherman Estate and your options when it comes to privacy
By Alexandra Manthorpe
Wills and Estates Newsletter - Cunningham Swan Lawyers (cswan.com)
''In
Sherman Estate, the application judge who first heard the matter agreed with the Shermans’ Estate Trustees’ unusual request to have the Certificate of Appointment files sealed. Sealing orders for estate administration matters are rare. However, the Estate Trustees stated that they “hoped to see to the orderly transfer of the couple’s property, at arm’s length from…the public’s morbid interest in the unexplained deaths and the curiosity around apparently great sums of money involved.” As such, they persuaded the application judge that any harmful effects of sealing the files (which effectively served as a publication ban) were outweighed by the privacy and physical safety interests of the beneficiaries.
Reporter Kevin Donovan, who covered the Sherman murders extensively, and his employer, the Toronto Star newspaper, disagreed with the sealing order and appealed. They argued that “the orders violated [their] constitutional rights of freedom of expression and freedom of the press, as well as the attending principle that the workings of the courts should be open to the public as a means of guaranteeing the fair and transparent administration of justice.” The Ontario Court of Appeal sided with Donovan
et al, so not surprisingly, the matter was appealed once more.
The Supreme Court agreed with the Ontario Court of Appeal. In a unanimous decision, Justice Kasirer held that, “Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy…Reporting on court proceedings by a free press is often said to be inseparable from the principle of open justice…Limits on openness in service of other public interests have been recognized, but sparingly and always with an eye to preserving a strong presumption that justice should proceed in public view…The test for discretionary limits on court openness is directed at maintaining this presumption while offering sufficient flexibility for courts to protect these other public interests where they arise.”
He continued: “The right of privacy is not absolute; the open court principle is not without exceptions…I disagree with the [Estate] Trustees that the ostensibly unbounded privacy interest they invoke qualifies as an important public interest…Their broad claim fails to focus on the elements of privacy that are deserving of public protection in the open court context…[However] a court can make an exception to the open court principle, notwithstanding the strong presumption in its favour, if the interest in protecting core aspects of individuals’ personal lives that bear on their dignity is at serious risk by reason of the dissemination of sufficiently sensitive information. The question is not whether the information is ‘personal’ to the individual concerned, but whether, because of its highly sensitive character, its dissemination would occasion an affront to their dignity that society as a whole has a stake in protecting.”
So what “affront to dignity” is required? Justice Kasirer explained: “This public interest in privacy appropriately focuses the analysis on the impact of the dissemination of sensitive personal information, rather than the mere fact of this dissemination, which is frequently risked in court proceedings and is necessary in a system that privileges court openness. It is a high bar — higher and more precise than the sweeping privacy interest relied upon here by the [Estate] Trustees.
This public interest will only be seriously at risk where the information in question strikes at what is sometimes said to be the core identity of the individual concerned: information so sensitive that its dissemination could be an affront to dignity that the public would not tolerate, even in service of open proceedings.” For example, this could include revealing someone’s sexual orientation or gender identity without their consent.
Analyzing the situation before him, he held that, “In the present case, the information in the court files was not of this highly sensitive character that it could be said to strike at the core identity of the affected persons [i.e. the beneficiaries]; the [Estate] Trustees have failed to show how the lifting of the sealing orders engages the dignity of the affected individuals. I am therefore not convinced that the intrusion on their privacy raises a serious risk to an important public interest. Moreover…there was no serious risk of physical harm to the affected individuals by lifting the sealing orders. Accordingly, this is not an appropriate case in which to make sealing orders, or any order limiting access to these court files.”
To those of us practising in Wills & Estates, the
Sherman Estate decision was not really a surprise. Yes, matters involving Certificates of Appointment, including the contents of deceased persons’ Wills, can become public knowledge under the “open courts” principle, and courts will rarely grant exceptions. But the reality is most Wills do essentially remain “private” within family and friends: Why would anyone who is not a beneficiary or expecting to be named as a beneficiary want to see a Will? Most people – even “nosy neighbours” – do not make the effort to go down to the local courthouse to view a deceased person’s Will unless there’s a compelling reason for them to do so, as perhaps Kevin Donovan felt there was, given his extensive writings into Sherman family affairs.
Interestingly, Barry Sherman’s Will which did end up becoming “public” was likely not even his most revealing one! Since the mid-1990s, many business owners – especially those with incredibly valuable holdings like Barry – have created two Wills for themselves: One Will for their “probate” assets (and which risks becoming public knowledge), and a separate Will which generally remains private for their “non-probate” assets, including interests in privately-held business corporations. While multiple Will planning is usually done to minimize estate administration tax (probate tax) on death, it does have privacy advantages as well. It was well-established before his death that Barry was one of Canada’s richest men, a billionaire, with a large business empire. However,
his secondary / “non-probate” / business Will is likely to remain beyond the reach of reporters and the public’s prying eyes.
Honey Sherman appears to have died “intestate” (without a Will), which in my view is perhaps the biggest surprise in this whole matter! Given her high net worth (even if lower than Barry’s), I would have expected her to have even just a simple Will. If you die without a Will, no one has an automatic right to administer your estate (unlike with a Will, in which an Estate Trustee is usually appointed), so intestacies often result in someone having to obtain a Certificate of Appointment.
Certain estate planning techniques, including the multiple Will strategy outlined above, can help people who are concerned about privacy and confidentiality''