Toronto Estate Law Blog

Toronto Estate Law Blog

1-866-497-0903Call now for a consultation

OBA’s Make a Power of Attorney Month

Posted in Uncategorized

At a recent press conference  held at Queen’s Park for the Ontario Bar Association (“OBA”), the OBA announced a new initiative in their partnership with the Trillium Gift of Life Network (“Trillium”). In tandem with Be a Donor Month, the OBA launched Make a Power of Attorney Month on April 1st.

The OBA and Trillium have been working together in recent months to create a tool kit to be used by lawyers in discussing of life and end of life planning. Make a Power of Attorney Month is a further extension of this partnership.

Through Make a Power of Attorney Month, the OBA is encouraging people in Ontario to:

a)    Register your consent to organ and tissue donation at www.beadonor.ca to help save lives at the end of yours;

b)    Make a Power of Attorney so that someone you trust will ensure your donation wishes are carried out when you are no longer able to decide for yourself; and,

c)    Inform your family of your decision.

For further information, please click see a recent OBA press release and the OBA’s Make a Power of Attorney website.

Thank you for reading.

Andrea Buncic

Di Michele v. Di Michele: A recent Ontario Court of Appeal decision and the ensuing concerns

Posted in Uncategorized

The scope of an estate trustee’s power has been highlighted in the recent April 3rd Ontario Court of Appeal decision, Di Michele v. Di Michele, and is causing concern among some practitioners in the field.

In Di Michele v. Di Michele, the deceased directed her house to be equally divided between her three children when she passed away in 1996. However, when her son, Antonio, the estate trustee, was involved in a personal litigation proceeding years later in 2002, he put the property up as security. Antonio subsequently lost the litigation in 2010, and his opponents brought an application for the sale of the house.

The trial judge held that the opponents only had a claim to Antonio’s 1/3 of the house, as the litigation was against Antonio personally, and not in his capacity as estate trustee.

On appeal, however, the ONCA held that Antonio’s opponents had a claim to the entire house. In coming to this decision, the ONCA cited section 63 of the Land Titles Act to come to the conclusion that Antonio was in the same position as if he had become the registered owner of the house under a transfer for valuable consideration, and that as such, he had the right to grant a mortgage over the entire house just as any registered owner could do.

Granting the estate trustee such a broad scope of power as being the true owner of estate property has led to some criticism of the ONCA’s decision. For an interesting discussion of the potential impact that this decision could have on the rights of and protections afforded to beneficiaries, please see the recent Law Times article entitled “Door opened to abuse as beneficiaries left in the cold”.

One thing this case does certainly highlight is the need for any testator’s careful consideration when deciding who (and how many) should be given the broad scope of estate trustee powers over their estate.

Thank you for reading.

Andrea Buncic

Hull on Estates #374 – Removing estate trustees

Posted in Hull on Estates, Hull on Estates, PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Show Notes

Listen to Hull on Estates #374 – Removing estate trustees

Today on Hull on Estates, Jonathon Kappy and Stuart Clark discuss removing estate trustees, and reference the recent 2013 case, Hawkins v. Hawkins Estate. If you have any questions, please email us at hull.lawyers@gmail.com, or leave a comment on our blog page.

Click here for more information on Jonathon Kappy.

Click here for more information on Stuart Clark.

Mickey Rooney’s Legacy

Posted in Elder Law, In the News, Litigation

Most readers will already be aware that Mickey Rooney died on April 6, 2014, at the age of 93.  Last week, the late Mickey Rooney’s family appeared in court to dispute the ultimate disposition of Mr. Rooney’s remains.

Mr. Rooney’s ex-wife, Jan Chamberlain, claims that Rooney would have wanted to be buried in a cemetery plot beside her.  Chamberlain has been estranged from Mr. Rooney since 2011, when allegations surfaced with respect to elder abuse by her son, Mickey’s step-son and conservator at the time.  Michael Augustine, who had since been Mr. Rooney’s conservator, comparable to what is known in Canada as a court-appointed guardian, insists that Rooney be buried in a veteran’s cemetery or an exclusive cemetery available only to late Hollywood actors.

In Ontario, an estate trustee has control over the final resting place of the deceased’s body.  Few safeguards are in place to ensure that remains are disposed of in a way that is consistent with the wishes of the testator, so long as the arrangements made are dignified.

A judge has ordered that Mr. Rooney’s body will not be removed until both parties are able to agree upon a final resting place.  Once a mutually satisfactory decision is reached, it seems likely that further litigation with respect to the Estate of Mickey Rooney will follow.  In 2011, Rooney altered his will to disinherit all but one of his previous beneficiaries.

Several years ago, Mr. Rooney extended his legacy beyond a lifelong career in the entertainment industry by speaking out about his experience as a victim of elder abuse.

Rooney’s assets were significantly depleted by the misconduct of his conservator, to the extent that his Estate may now be worth as little as $18,000.00.  Mickey Rooney commenced an action against his step-son and publically encouraged other victims of elder abuse to seek help and report the crimes being committed against them.

Thank you for reading.

Suzana Popovic-Montag

Anderson Cooper: Interesting Views on Inheritances

Posted in Uncategorized

During a recent interview on Howard Stern’s radio show, described in a Wall Street Journal: Market Watch article entitled “Cooper: No Gloria Vanderbilt Money for me”, Anderson Cooper discussed both his views on receiving large inheritances, and the fact that he will not be receiving any inheritance upon the death of his mother- fashion designer, Gloria Vanderbilt.

More specifically, in the interview, Mr. Cooper explained that his mother has told him from a young age that he would not be receiving any trust fund or other inheritance from her upon her death. In response to Mr. Stern’s shock, Mr. Cooper stated “I don’t believe in inheriting money… I think it’s an initiative sucker… I think it’s a curse…”. Mr. Cooper then explained that he considers large inheritances to inhibit good work ethic. When Mr. Stern pointed out that Mr. Cooper’s mother had inherited quite a fortune from the death of her father, Mr. Cooper described her as an anomaly and asserted that she has earned more money in her lifetime than she ever inherited.

When asked, hypothetically speaking, whether Mr. Cooper would leave his children any money, however, Mr. Cooper’s answer was not so black and white.

Mr. Cooper’s opinions on the impact of large inheritances is interesting food for thought. His interview certainly leads one to think about what they would do in Ms. Vanderbilt’s fashionable shoes.

Thank you for reading.

Andrea Buncic

How to Give the Gift of Life

Posted in Ethical Issues, Health / Medical, In the News

Two weeks previously, I outlined the complications raised in determining time of death for the purposes of organ donation. A further complication is determining, with certainty, whether a potential donor has expressed their desire to donate in a manner sufficient to allow for donor family members to accede to, and for donor agencies to accept, an organ donation.

The Trillium Gift of Life Network (TGLN), a not-for-profit agency of the Government of Ontario which promotes and supports organ donation across the province, found that while over 85% of Ontarians support organ donation, only 25% register their consent to donate.

April is Be a Donor Month, and agencies such as the TGLN are ramping up campaigns to inform potential organ donors of this critical step in ensuring that their donations are realized.

Ronnie Gavsie, CEO of the TGLN, has expressed that simply signing a driver’s license is not enough. Those wishing to guarantee that their wish to donate is known need to register at beadonor.ca or at a ServiceOntario centre. Simply signing a donor card is no longer sufficient.

Even if the face of a registered donor, families are always required to consent. It is for this very reason that the TGLN advises that in addition to registering, donor’s should get a Power of Attorney and also ensure that family members are made aware of their intentions. Such sentiment was echoed by Pascale Daigneault, President of the Ontario Bar Association.

ServicesOntario advertises the requirements for registration, and notes that donors may one day save up to 8 lives with their donation. Donations also provide for other major life improvements such as allowing those who have lost their vision to see once again.

Campaigns across Ontario are currently actively encouraging those who wish to partake in organ donation to register their intentions. Such positive steps encourage family members to give permission to donate and relieves some of the emotional burden of doing so by ensuring that family members are certain of their loved one’s intentions. The benefits of registration are clear. Some say that registration increases a family’s likelihood of giving permission to donate from 50 to 85%, thus both relieving the emotional strain on families, while also ensuring a larger supply of vital tissues are available for transplant.

Thank you for reading.

Ian Hull

Extreme Burials

Posted in Executors and Trustees, Funerals, Wills

The Last Will of Napoleon Bonaparte states, “…It is my wish that my ashes may repose on the banks of the Seine, in the midst of the French people, whom I have loved so well”.  It is interesting to note that Napoleon wishes, and not instructs, this type of burial.  In Ontario, there is no legal requirement for the estate trustee to follow the wishes expressed by the testator.  Even if a Will includes burial instructions, these are merely precatory and are not binding on the estate trustee.

As such, the estate trustee has the paramount legal authority to determine the place and manner of burial.  Below, I highlight some interesting, and alternative, burial options an estate trustee may want to consider.

Space Burial – For the price of $1,990 Elysium Space will send cremated remains into space.  The remains will launch into low orbit, and circle the earth for a few months before re-entering the atmosphere.  A mobile app is even included which shows, in real time, the spacecraft location and how the world looks from the deceased’s perspective.  This app professes to be the personal gateway to your loved one, resting in peace while the Milky Way is magnificently rising over the celestial horizon.

Natural Earth Burials – A natural earth burial is the burying of a body in a biodegradable coffin or a shroud in a shallow grave without the use of chemicals.  This enables a more natural decomposition.  The body is marked with a tree, not a tombstone, and the exact location is registered using a global positioning system.  Benefits include the fact that the body decomposes faster, there is no pollution of the soil from a coffin, and less land is used.

Personalized Coffins – In order to ensure that funerals are more personal and special, a company based out of Australia offers to make personal, emotional, and environmentally friendly coffins.  This includes an option to decorate the coffin yourself.  Apparently, this is very popular in Ghana, where customized coffins include a Mercedes Benz, fish, and wrench.

Noah Weisberg

Hull on Estates #373 – Retainer agreements

Posted in Hull on Estates, Hull on Estates, PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Show Notes

Listen to Hull on Estates #373 – Retainer agreements

Today on Hull on Estates, Noah Weisberg and special guest, Jordan Atin, discuss retainer agreements. If you have any questions, please email us at hull.lawyers@gmail.com, or leave a comment on our blog page.

Click here for more information on Noah Weisberg.

Click here for more information on Jordan Atin.

 

 

The Publicity of Wills

Posted in Uncategorized

I recently came across a very interesting piece of history which got me thinking about what should and should not be included in a Will.  While a Will should make clear the testator’s wishes regarding their distribution of property, less clear is whether any controversial comments, for example reasons for disinheritance, should be included.

According to secret documents released by MI5, the Last Will and Testament of Baron Paul von Hindenburg (Germany’s President until his death in 1934) made clear that Hindenburg rejected Hitler’s claim to the Reichstag and urged the nation to embrace democracy.  Specifically, Hindenburg’s last wishes included a desire that the army should be independent from parliament, and that a constitutional monarchy should be established.

As Hitler was concerned about the effect that this Will may have on the German people, he apparently demanded the original be sent to him.  It is believed that the Will was never seen again.  According to one article, the effect of this Will may have been so colossal, it is possible that World War II may have been avoided.

An article found here, provides a list factors to consider in the event that a testator decides to disinherit.  It suggests that instead of failing to mention someone, the testator’s intention to disinherit should be specifically stated.  However, alongside this, it should be noted that in Ontario, it is possible that a Will may enter the public domain.  If a Will does enter the public domain, the government provides instructions as to how the general public can find a Will in Court records.

As such, when preparing a Will, it is important to consider that anything written, whether positive or negative, may be accessible by the general public, should the Will eventually enter the public domain.  Testators should be cognizant of this when preparing their Wills, and always seek advice of a solicitor.

Noah Weisberg

Estate Law and the Potential Unification of Korea

Posted in Uncategorized

With discussions about the potential reunification of North and South Korea, it may be time to consider its implications with respect to estate and succession law.  While many of the witnesses of the Korean War are no longer living, their families on the opposite side of the border may be able to bring claims against the estates of their separated loved ones, despite the delayed commencement of claims.

While Korean law does recognize a ten-year limitation period with respect to estate claims, recent court decisions have found exceptions to this rule.  One of such cases involved three generations and a South Korea-born man who was captured by North Korea during the War.  A claim was permitted, despite the fact that the deceased was believed to have died in 1977.  Justice Seo Young-Hyo stated that the application of the statute of limitations under the circumstances “would amount to depriving North Koreans of their inheritance rights.”

Another recent decision of South Korea’s Supreme Court allowed the enforcement of the inheritance rights of North Korean children with respect to a South Korean parent, despite the fact that the children remained in North Korea.  All information from the children located in North Korea was relayed to the Court via a missionary, who even transported into South Korea samples from the children for the purposes of DNA testing.  In this case, the deceased had also been dead for more than two and a half decades, when he had left behind an estate worth nine million dollars and a second family in South Korea.  Nevertheless, the children were recognized as beneficiaries of their father’s estate, with inheritance rights equal to those children from the deceased’s second marriage in South Korea.

In 1990, following the German reunification, greater than two million claims with respect to family property were filed.  In Korea, most wealth is held in real property, with the potential of complicating estate disputes that may involve deceased individuals who had family from which they had been separated in addition to a younger family, as well as disputed ownership resulting from the existence of both original title-holders and post-War occupants of land.

Should North and South Korea ever reunify, it is expected that the estate law issues that result could remain unresolved for, according to some experts, longer than the division of Korea lasted to begin with.

Thank you for reading.

Suzana Popovic-Montag

Lexblog