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Late actor’s whiskey brand the subject of litigation

Posted in Litigation

John Wayne was known by many of his fans as “the Duke”.  Now, thirty-five years after the late actor’s death, his estate is involved in litigation with respect to the use of Wayne’s iconic nickname and image.

The Duke brand of bourbon was inspired by recently discovered bottles belonging to Wayne’s personal collection of whiskeys which have been preserved since the actor’s lifetime.  John Wayne Enterprises (“JWE”), a company owned and operated by the Duke’s heirs and established to preserve John Wayne’s legacy, produces and sells the Duke brand whiskey.

Duke University and the Wayne Estate have been in dispute with respect to the use of the name “Duke” for nearly a decade.  Earlier this month, JWE filed a complaint with the United States District Court for the Central District of California, seeking a Declaration that the company’s use of the Duke brand for whiskey and other products does not constitute trademark infringement with respect to Duke University.

The University alleges that JWE’s use of the name “Duke” for the new bourbon line, along with the portrait of John Wayne used on labels, constitute trademark infringement.  Apparently, the image of Wayne dressed as a cowboy is too similar to the logos used, and the rights of which are owned, by Duke University.

JWE argues that the University does not own the rights to the word Duke for all purposes and applications and that it is not in the business of alcohol production, distribution, marketing, or sale.

Early in his life, John Wayne owned a dog named Duke.  Locals soon began to call Wayne by the same name.  Since Wayne preferred Duke to his actual first name, Marion, the nickname stuck.  Regardless of the outcome of the current litigation involving the actor’s estate, to his fans, it is unlikely that John Wayne will ever cease to be “the Duke.”

Have a great weekend!

Nick Esterbauer

Choosing the Wrong Attorney for Property

Posted in Capacity, Power of Attorney

Several recent matters before British courts highlight the damage that can be done when one appoints the wrong person as a continuing attorney for property.

One article tells the story of a World War II veteran and successful entrepreneur who executed a continuing power of attorney for property in favour of his trusted financial advisor.  The abuse of the power of attorney by the advisor resulted in a ninety thousand pound depletion of the veteran’s assets, which had been inappropriately invested by the attorney in a high-risk venture after the grantor had lost the mental capacity to manage his own affairs.  The veteran’s daughters applied to the court to replace the appointed attorney to manage their father’s finances, but were appointed only days before his death and too late to correct the financial mismanagement that had earlier taken place and resulted in the insolvency of the man’s estate.

In another case, heard earlier this month by the England and Wales Court of Protection, an attorney for property used seventy-two thousand pounds of his incapable mother’s money to fund the expansion of his partner’s house.  After the attorney separated from his partner, the grantor’s great nephew raised his concerns with the Office of the Public Guardian.  As the grantor lacked the mental capacity required to revoke the power of attorney herself, the Court did so on her behalf.  The Court noted that, absent its intervention, the grantor would have been deprived of funds that she may later require to pay for personal care as she ages, because of her attorney’s actions.

In Ontario, the court may similarly intervene to appoint a guardian for property and/or personal care in the place of an attorney earlier appointed, who has abused the authority granted by the power of attorney in his or her favour.  This can, however, be a slow and costly process.

When a power of attorney is being prepared, it is important that attorneys are chosen carefully.  The assistance of a lawyer who is experienced with incapacity planning can assist in preventing the depletion of assets by a poorly-chosen attorney and the costs of related litigation.  When drafted and used correctly, a power of attorney can be a powerful tool with the potential to allow a person to live with continued dignity into old age, regardless of diminished mental capacity.

Thank you for reading.

Nick Esterbauer

Parents are not having Financial Planning Discussions with their Children Early Enough

Posted in Estate Planning, General Interest, In the News

A recent study from an American investment firm notes some surprising revelations about the conversations parents are having with their adult children about financial planning.

Approximately 40% of parents have not discussed issues such as estate planning with their children, nor have they discussed how they may fund possible health needs in old age.  The study notes that children generally would prefer to have such discussions with their parents well before they retire, while parents would rather wait until after retirement.

The study sides with the children,  recommending that family finance discussions “take place well before retirement”:

Although it’s understandable that parents may have sensitivities and want to delay discussing personal financial matters, the best strategy is to set these concerns aside and have frank discussions sooner rather than later . . . it’s very possible your children will have to make some financial healthcare decisions for you later in life.

Talking about financial planning does not just help parents.  It also helps their children, who may be planning around receiving an expected inheritance.  Adult children apparently often underestimate the value of their parents’ estate by about $300,000.  While this is probably a pleasant surprise when children receive their inheritance, it also means that they did not have the benefit of planning their finances around the appropriate figure.

Talking about estate planning early increases a family’s sense of financial preparedness.  Close to 93% of parents who opted to discuss their estate planning with their children claimed to have greater peace of mind.

The study concludes by reminding parents that they can revisit the topic of financial planning multiple times; it need not be a one-time event.  As financial circumstances change or unexpected expenses occur, it is important to make sure children remain knowledgeable about their parents’ estate planning.

I would simply add that having these kinds of conversations also helps to avoid costly estate litigation.

Thank you for reading,

Suzana Popovic-Montag

Seniors Remain Optimistic About Golden Years

Posted in Elder Law, In the News

The average Canadian will struggle to fund retirement.  However, despite increasing longevity, resulting in greater costs associated with personal care later in life, a recent study suggests that a significant majority of the aging population is optimistic that they will continue to benefit from a high quality of life in old age.  Survey results indicate that 84% of younger adults and 89% of middle-aged or older adults believe that their quality of life will not diminish as they age.

However, approximately one half of the participants in the study, conducted by a team of organizations including the U.S. Council on Aging and Boston University, are still concerned that their post-retirement savings will be insufficient to fund personal care.  The number one factor fueling the optimism, despite concerns with respect to the adequacy of retirement savings, appears to be the support of family and friends.  In some situations, reliance on family and friends may be an appropriate way to obtain personal care that may otherwise be inaccessible for financial reasons.

A private care agreement normally involves an older person arranging to transfer a certain asset, either when entering into the agreement or as a bequest within his or her will, to a family member or friend, who, in turn, will agree to provide care as the person ages.  77% of survey respondents wish to remain at their current home instead of relocating to a retirement home or other long term care facility.  For that reason, a senior may, for example wish to gift real property to a family member, in exchange for the promise of support into senior years, preserving the property within the family and allowing the older person to continue living at home rather than selling the property to fund caregiving through another source.

However, absent adequate safeguards, arrangements with family members or friends to provide care to seniors can be risky.  Early, unexpected termination of the arrangement should be considered so that the senior is not deprived of both the personal care itself and the assets intended to be transferred in order to secure it.

It is important that private care agreements are formalized in writing and that both parties to a contract for private care obtain independent legal advice to ensure that the interests of the senior and the caregiver are protected.

Thank you for reading!

Nick Esterbauer

Revoking a Notarial Will: Destruction of a Certified Copy is not Enough

Posted in Uncategorized

Unique among Canadian provinces, Quebec recognizes a third type of Will in addition to Formal and Holograph Wills: Notarial Wills.  We have previously blogged about Notarial Wills here.  A Notarial Will is drawn up by a notary, and signed by the testator, the notary and a witness, all in each other’s presence.  The advantage of executing a Notarial Will is that it is stored in a central registry, so there is no risk of it being lost, and, more importantly, there is no need to probate the Will in Quebec.

Canadian provinces generally recognize the validity of Notarial Wills and will accept properly certified copies of the original for probate.

Recently, the issue of how a Notarial Will may be revoked was considered by the British Columbia Supreme Court in Morton v Christian.

In British Columbia, as in most provinces, a Will may be revoked by (1) marriage; (2) executing a new Will; (3) executing a document declaring one’s intent to revoke a Will; or, (4) by the testator burning, tearing or otherwise destroying the Will.  It is the last method that was contentious in Morton v Christian.

In that case, the testator had executed a valid Notarial Will in Quebec naming his spouse, the plaintiff, as his sole beneficiary before moving to British Columbia.  The couple separated in 2009.

The testator then tore up his certified copy of the Notarial Will, but not the original which was stored with the central registry in Quebec.  If a certified copy of a Notarial Will sufficed for the purposes of probate, did the act of destroying a certified copy have the effect of revoking the Notarial Will?

Justice Johnson ruled that it did not.  While a certified copy of the Notarial Will could be received as evidence in place of the original for purposes of probate, it did not have the same status as an original, and therefore its destruction had no legal effect.

British Columbia’s statutes on Notarial Wills and revocation of Wills are very similar to Ontario’s and it is likely that a similar ruling would have been reached by an Ontario court as well.

Quebec ex-patriots take heed: destroying your copy of your Notarial Will will not prevent La belle province’s original from governing the administration and distribution of your estate.

Thank you for reading,

Ian Hull

When It Comes To Costs, Location Matters

Posted in Litigation

In recent costs ruling, a Kingston court considered a claim for costs by out-of-town counsel.  The court concluded that the losing party should only pay costs based on what local counsel would charge.

The issue on the motion was the removal of plaintiffs’ counsel due to an alleged conflict.  As the matter could not be resolved, the defendant brought a motion seeking counsel’s removal.  At the “eleventh hour”, counsel for the plaintiffs agreed to step aside.  The defendant sought her costs of the motion.

The court agreed that costs of the motion should be awarded to the defendant. With respect to the scale, the court held that partial indemnity costs were appropriate, with an award of substantial indemnity costs being reserved for special and rare circumstances. 

With respect to quantum, the court noted that the deceased lived in Picton, Ontario, and that the action was commenced in Kingston, Ontario.  The defendant retained Toronto counsel, with an hourly rate of $385, and $560 per hour for senior counsel.  (It is not clear from the decision what the hourly rate of local counsel was.)  The court stated that while the issue was not a simple one, out of town counsel were not required.  “While I am sure that her counsel are worth every penny to [the defendant], a costs award here must consider what the plaintiffs ought to have expected to pay in conducting themselves as they did. In my view, it would have been reasonable for them to assume that her costs were roughly the same as theirs – that it, at the general Kingston rate for civil and estate litigation.  As an access to justice issue, people should expect to pay legal costs contextualized by the communities in which they live and work.”

It should be noted that one of the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, which sets out factors that the court may consider in exercising its discretion to fix costs, is “the amount of costs that an unsuccessful party could reasonably expect to pay in relation to a step in the proceeding for which costs are being fixed”.

In another case commenting on “out of town” counsel, the court disallowed travel time.  “Although the Applicant is fully entitled to retain out of town counsel, the cost of the time for counsel to travel to Kitchener to argue the motions should not be visited upon the Respondent.”  (However, there are many cases on this issue: some allowing travel costs and some disallowing them.)

Have a great weekend, wherever you are.

 

Paul Trudelle

 

Canadian Alzheimer’s Study Finds Gene That Delays Onset of Alzheimer’s

Posted in Capacity, In the News

An exciting recent Canadian study has found a genetic variation that delays the onset of Alzheimer’s by as much as four years.

The study, undertaken by Judes Poirier and his team at the Douglas Mental Health University Institute and McGill University in Montreal, found a variant of a cholesterol-regulating gene which can delay the onset of Alzheimer’s.  Previous studies have found a link between cholesterol and Alzheimer’s. This study found a variant to the normal gene, and found that those with the variant, about 25% of the population, develop Alzheimer’s about four or five years later than those without it.  According to the press release,  “Over the past two decades, research efforts around the globe have focused on identifying genetic and environmental factors responsible for causing or accelerating the progression of the common form of Alzheimer’s disease. However, little was known about possible protective genetic factors that can delay or even prevent the disease onset in humans.”

The next step would be to build on this research by developing a drug which would mimic the effect of the genetic variation for non-carriers.  In particular, scientists are looking to develop a brain-specific cholesterol-regulating statin.

According to the report, the Alzheimer Society of Canada is interested in the research.

There is currently no preventive treatment for Alzheimer’s.

Thanks for reading.

 

Paul Trudelle

 

Hull on Estates #384 – Primary and secondary wills

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

Listen to Hull on Estates #384 – Primary and secondary wills

Today on Hull on Estates, Josh Eisen and Jonathon Kappy discuss drafting errors as they relate to primary and secondary wills in the recent court case, McLaughlin v. McLaughlin, 2014 ONSC 3162 (CanLII) . 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 Josh Eisen.

Click here for more information on Jonathon Kappy.

Choice of Law: Contractual versus Testamentary Instruments

Posted in Uncategorized

Documents executed in the final years of a person’s life can sometimes take on a testamentary character, making it unclear whether the law of contracts or estates applies.  A recent case before the Ontario Superior Court of Justice highlights the importance of this distinction.

At issue in Christos Donis v. Dimitra Georgopoulous and Eleni Donis was the validity of two documents executed by the deceased, the mother of the parties to the proceeding.

The first document was a “memorandum of agreement” which was prepared by the mother’s solicitor.  In the memorandum of agreement, the mother agreed to transfer her home to her daughter in return for $100,000, provided she was allowed to live in the home for the duration of her lifetime.  The memorandum of agreement was signed by the mother and her daughter.

The second document, executed subsequent to the first and only two weeks before the mother’s death, directed the mother’s solicitor to transfer her property to her daughter, making no mention of the $100,000 payment.

The Applicant argued the documents were void regardless of whether testamentary or contract law applied.

If the documents were testamentary in nature, then they were “signed under suspicious circumstances and/or are the result of undue influence.”  The Applicant also challenged his mother’s capacity, and her knowledge of the contents of the documents, given her limited understanding of English.  If the documents were contractual in nature, then they were void “for uncertainty and/or undue influence.”

Firestone J ultimately found that the first document was an enforceable, sufficiently certain and simple contract, and that the second document merely evinced a confirmation of the mother’s intention to transfer her house to her daughter.  As Firestone J noted, to qualify as a testamentary instrument, a document must demonstrate animus testandi, “an intention that the directions it contains for the disposal of property are to take effect upon the death of the testator.”  Here, the document envisioned a transfer of the house during the mother’s lifetime, and therefore did not have the requisite animus testandi.

Even had the documents been testamentary in nature, Firestone J would not have found them to be unduly influenced, or executed without capacity.  Nevertheless, the case demonstrates the advantage of using formal instruments to give effect to transfers of property, whether inter vivos or post-death.  One of the advantages of a will or codicil is that it clearly evinces animus testandi; there is no ambiguity on whether contract law or estate law applies.  A formal contract to transfer property during one’s lifetime similarly lessens confusion as to which law applies.

Thank you for reading,

Suzana Popovic-Montag

Will Rectified Where Residue Clause Inadvertently Left Out

Posted in Uncategorized

Recently, the Ontario Superior Court rectified a Will that contained no residue clause.

In McLaughlin v. McLaughlin, 2014 ONSC 3162 (CanLII), The deceased died leaving a primary and secondary Will.  The primary Will disposed of the deceased’s assets other than her house, and the secondary Will disposed of her house.  However, through inadvertence, the secondary Will did not contain a residue clause.  If uncorrected, the residue under the secondary Will would pass on an intestacy to the deceased’s five children, rather than only three children as set out in the residue clause under the primary Will.

To make matters worse, the revocation clauses of both Wills provided that the testator revoked “all wills made before this will, but not the Will made [on the same date] to dispose of [the deceased's house].”  The effect of this would be to revoke the primary Will, and, again, the assets under the primary Will would pass on an intestacy to all five children, rather than the three children intended by the deceased.

To make things even worse, each of the Wills contained a clause making specific bequests to grandchildren and daughters-in-law.  The effect of this was that these beneficiaries could claim entitlement to two separate bequests: one under the primary Will and one under the secondary Will.

The estate trustee sought rectification.  The two children not named in the Wills opposed.

The Court noted that “the equitable power of rectification is aimed mainly at preventing the defeat of testamentary intentions due to errors or omissions by the drafter of the will: Robinson Estate v. Robinson, 2010 ONSC 3483, at para. 25 [sic: cite in the case is to the Robinson decision on costs].

The Court endeavoured to avoid an intestacy.  There was evidence before the Court that in a prior Will, the deceased had prepared wills that benefitted only three of her five children.  The deceased’s clear instructions were to benefit only three of her five children.

The Court stated that if the deceased meant what was in the secondary Will, then “I must find that she meant to create the intestacy even though the document that created the intestacy also duplicated the bequests to the grandchildren and daughters-in-law. I would have to find that in one document, [the deceased] wanted to duplicate the bequests, revoke a second document being signed at the same time and create an intestacy the effectively shared the entire estate with all of her children rather than do that directly. That would make no sense.”

The Court concluded that the deceased’s instructions were not carried out as a result of the “clerical errors”.  The errors in the secondary Will were rectified.

Thanks for reading,

Paul Trudelle 

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