Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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The division of personal property left by a loved one on his or her death can be a thorny issue. Often, the deceased gives directions to the Estate Trustee with respect to his or her intentions. These can be in the form of a memorandum incorporated into a Will. In some cases, the wishes of the deceased are just that: wishes that are not binding on the Estate Trustee. Still in other cases, the deceased gives all of the personal property to the Estate Trusee with discretion on the part of the Estate Trustee to decide how the property is to be distributed.

In Borisenko Estate, 2013 ABQB 245 (CanLII), the court was faced with the question of whether one of the deceased’s sons was entitled to a Russian icon owned by the deceased.   The icon was said to have a value of $1,600. The deceased died leaving four children. One of the children, Vera, was appointed as Estate Trustee. The deceased’s Will provided that the Estate Trustee had full, uncontrolled discretion in selling, converting into money any property, postponing conversion, retaining property in the form it was in at the time of death and fixing the value of the estate or any part. The decision of the Trustee was final and binding. Further, failing agreement on the disposition of an asset, the Estate Trustee was to have absolute discrection to determine which beneficiary shall receive the asset in dispute.

Despite these provisions, one of the deceased’s children brought an application for a declaration that he was entitled to the Russian icon. The application was dismissed. The court noted the absolute discretion of the Estate Trustee to deal with the icon. “It is not for the court to become involved in dividing up personal assets of an estate when the power and discretion to do so has been left with the Trustee”.

The court rejected the argument that because the Estate Trustee may want to keep the icon herself, she was in a conflict. The court stated that this neither takes away from the Estate Trustee’s discretion, nor puts her in a conflict.

The court also noted (again, without taking away from the discretion of the Trustee) that, normally in the Russian culture, the icon would go to the oldest son. The fact that the Applicant was not the oldest son was not lost on the court.

Thank you for reading.

Paul Trudelle

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In a recent article in the Globe & Mail, Thane Stenner dissects some helpful and balanced advice on issues related to estate planning by American businessman, investor and philanthropist, Warren Buffett.

His advice is not of the sort one might expect from a successful business magnate.  It relates less to investment choices and tax avoidance than it does to family, charity and communication. 

One notable piece of advice is in regard to how much a testator should leave to children.  While (tragically) few of us will be faced with the problem of having too much to give away, the lesson can apply to individuals with more modest estates as well.  Buffett, responding to a concern about spoiling children with an overabundant inheritance, began his reply by saying, "I think that more of our kids are ruined by the behaviour of their parents than by the amount of the inheritance."  The message Buffett is communicating is that it is not how much money is left to children that will determine whether they are spoiled by it or not, but the values, knowledge and experiences that are transmitted from testator to beneficiary that will dictate how wisely they will manage their inheritance, regardless of its size.  This applies equally to estate plans great and small.

Another comment that Mr. Stenner has wisely plucked from Mr. Buffett's speech is that an estate plan should be updated every few years.  Many testators prepare a will and assume that their estate planning is done.  Meanwhile, years and decades pass without giving the will a second thought.  When it comes time for the will to take effect, it may no longer be relevant, and may not accurately or appropriately reflect what the testator may have wanted.  Assets described in a will can come and go, leading to ademption issues.  Named beneficiaries and estate trustees can come into and fade out of a testator's life.  Your will, and indeed your whole estate plan, should get a "checkup" at least every five years.  It should also be carefully reviewed on a significant change in life circumstances, such as a marriage, a divorce, the birth of a child or grandchild, the death of a family member, or a significant change in the form or value of the assets it governs.  Ensuring that an estate plan stays current is an important way to protect your testamentary autonomy and to prevent litigation and heartache for beneficiaries down the road.

Mr. Buffett also suggested that the would-be beneficiaries should, in many circumstances, be participants in the estate planning process.  Ideally, there should be no surprises when a testator passes away.  This will help to prevent shock, disappointment and litigation.  If a beneficiary is inheriting less than his or her siblings, he or she should know why ahead of time, so that decision will not be challenged later on.  Of course, this may lead to anger or resentment, but the likelihood of dispelling this anger is much greater when the testator is alive and present to explain the rationale.  An unequal distribution may be seen as unfair, but it may simply be the case that the testator intended to or did advance a gift to the slighted beneficiary during his or her lifetime, or had greater confidence in the ability of that beneficiary to provide for himself or herself. 

Finally, Warren Buffett reminds us of our responsibilities to society.  As a philanthropist, he has made considerable contributions to causes such as the Bill and Melinda Gates Foundation.  While most of us don’t have billions to give away, it is worth remembering that even a small contribution can make a big difference. 

Have a wonderful day,

Suzana Popovic-Montag

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When practicing in the area of estates, we often only think of death in its legal context. We consider the Deceased’s assets, beneficiaries and claims made against the estate. What is often glossed over, however, is the actual end-of-life of the person who left behind what is being fought over. I believe that it is important not to reduce death solely to its legal ramifications. Considering the emotional, personal and even spiritual aspects of death can help add context to your files and can even make you a more understanding lawyer. That is why this recent article in the Huffington Post really struck a chord with me.

The article details the Washington, D.C., Threshold Choir, which performs to the gravely ill or dying. The choir visits (by invitation only) hospices, hospitals and private homes to sing mostly original songs designed to be therapeutic to their listeners. Two or three choir members will visit a bedside and perform songs based on the patient or patient’s family’s requests. The singers typically sing two or three songs to gauge a person’s response. Many times, the patient is too ill to speak and will signal their pleasure with the movement of a finger or a blink of the eyes. The songs are typically not religious and are meant for persons who are spiritual but don’t subscribe to any one faith. Singers typically do not witness their audience’s last breath as they note that people mostly prefer to pass on alone or in the presence of family.

While this concept may seem to be unique, there are apparently dozens of these groups in existence across the United States. This concept is also not unique to North American society; in some Buddhist and Hindu cultures, hymns are sung to the dying while mantras are chanted to them as the moment of death approaches. The article also states that during the Middle Ages, Benedictine monks were well-known for their infirmaries for the terminally ill that incorporated Gregorian chants to soothe the dying. There is even an emerging science, known as thanatology, which is studying the effects that sound’s frequency and tone can have on a dying person, such as changes in breath, heart rate, soundness of sleep and stress-reduction.

The director of the Threshold Choir not only trains her singers’ voices, she urges them to consider bigger questions about the end of life: “What role does this song play in transitions? What do they want to hear in their last week alive?” She states her goal as being “to steer their minds toward thinking about the death that will soon surround them, and to weed out the uncomfortable.”

Bringing it back to the practice of law, estates practitioners mostly gloss over the uncomfortable instead of weeding it out when it comes to death. I believe that thinking about death in its human terms in addition to its legal consequences will inevitably serve to improve your relationships with clients and help you to become a more compassionate person and lawyer.

Thanks for reading and have a good week.

Ian M. Hull

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I recently attended the production of ‘Rent’ at the Lower Ossington Theatre.  The musical has been a favourite of mine for years.  I know the words to almost all of the songs, albeit if I have to sing them, it is fairly off key.  One of the songs in the musical (which gained some popularity at the time the musical was originally on Broadway in 1996) is called Seasons of Love.  It contemplates how you measure someone’s life and posits, "is it…

in daylights, in sunsets, in midnights,
in cups of coffee? 
In inches, in miles, in laughter, in strife?

In five hundred twenty-five thousand
six hundred minutes
How do you measure
A year in the life?

How about Love?..."

This song has always made me think, and since delving into the world of estate litigation, even more so.  As part of our jobs, we routinely focus on specific facts.  When was he born? When did he marry? When were his children born?  When did he make a Will?  How long did he spend in hospital?  When did he die?  These can all be placed neatly into a chart, that gets turned into a report, that gets turned into an affidavit, that gets turned into a factum, that gets turned into oral argument.  All based on pure facts.  Yet, I saw this photo yesterday and I was reminded again of the lyrics recited above. 

We are so often focused on the tidbits of information that make up a legal argument, that we can forget that the facts are parts of someone’s life.  If you knew your life was going to be measured, how would you want that story told?  Would it change how you spend the next 525,600 minutes?

Something to think about,

Nadia M. Harasymowycz 

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Have you ever had something that was special, that you wanted to put in a special place to make sure nothing bad happened to it? You find the perfect spot for it and put it away. Only to have to go looking for it days, months or years later and fail to remember where that ‘perfect spot’ was. It seems our legislators have as well, which have resulted in the original provisions that allow for a ‘lost will’ application. 

Wills are special documents. Sure, they are usually only a handful of pages, written in legible writing, with a few signatures on the last page. They appear to be just another stapled together package.  Yet, they really are special, with a whole bunch of rules as to how to deal with pretty much everything possible means of damage/changes/loss to the document. The special nature of a Will was discussed in a recent decision from British Columbia, Thierman Estate V. Thurman 2013 BCSC 503 . 

Upon the death of George Thierman only a copy of his Will was found. The issue was whether or not the Will was intentionally destroyed or whether Mr. Thierman lost it.  As party of this issue, there was the possibility of a Wills Variation Act claim, if the Will were determined to be valid. The court reviewed and considered the rebuttable presumption that a will, last in the custody of the testator, is presumed revoked if it is not found at death. Various case law was considered, and many factors were reviewed. Among these factors, the court considered the evidence of the parties which suggested that the Deceased was meticulous and was unlikely to have lost or misplaced his will. 

It was found that on a balance of probabilities, the Deceased destroyed his will, with the intention of revoking it. Further, the court made a declaration that the Deceased died intestate, and special costs of the application were to be paid. 

As with many matters that revolve around the actions of a Deceased, the Court in this matter was compelled to weigh evidence from several parties and to have that evaluation result in a decision that would have impact on a whole family. The specific details are interesting and ultimately assisted the court, I would direct you to this case in the event that this matter sparks your personal interest. What can be gleaned from this case, is that like each matter that deals with whether an item ever made it to the ‘perfect spot’ for safe keeping and what happened after that, the evidence before the court, and the credibility of that evidence is what the decision will ultimately stand on. 

Until Tomorrow,

Nadia M. Harasymowycz

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The American Psychiatric Association is set to publish the fifth and latest edition of the Diagnostic & Statistical Manual of Mental Disorders, the DSM-5, this month.  The DSM-5 will change the way mental disorders are defined and identified by researchers and practitioners in the field. 

Since 1952, when the first DSM was published, the manual has been used to promote worldwide consistency in the diagnosis, recognition and treatment of mental health issues.  Since its initial publication and with each successive revision, professional and public awareness and understanding about the diversity of mental health issues has grown significantly.

As a lawyer practicing in the field of estates, mental health issues arise frequently in practice.  At the core of most will challenges is the mental health of the testator at the time that his or her will was prepared.  In the seminal case of Banks v. Goodfellow, Lord Blackburn described the requisite capacity to make a will as follows:

"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."

This is not strictly a legal test, and is not strictly a medical test.  It is a hybrid that requires certain functional abilities from a testator at the time of making a will.  The case also recognizes the transience of some forms of incapacity, recognizing that those affected by some conditions may have good days and bad days, or may have impairments that do not inhibit their ability to make a valid will.

It is remarkable that the basic principles have survived nearly a century and a half, in light of the tremendous medical and scientific advancement in the area of mental health.  It remains to be seen whether the changes in the DSM-5 will lead to a more nuanced understanding of mental health with respect to testamentary capacity, the capacities to make a power of attorney for property or personal care, respectively, or the other levels of mental capacity recognized at law.  It may affect the way Ontario capacity assessors approach their task of gauging how an individual's medical and mental status interfaces with various legal tests, including the one originating in Banks v. Goodfellow. 

Another interesting aspect of the DSM-5 that arises in connection with estate law is the change it will make in how grief is perceived.  Under previous versions, the definitions of some types of mental disorders, including depression, excluded those suffering from the death of a loved one in the previous 2 months.  A Vancouver Sun article reports that this bereavement exclusion will be removed, recognizing that individuals dealing with a loss may sometimes benefit from professional help of a different kind than the type that an estates lawyer can provide.

Thank you for reading. 

Suzana Popovic-Montag

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Listen to: Hull on Estates Episode #331 – Passing of Accounts 

Today on Hull on Estates, David Smith and Jonathon Kappy discuss procedural nuances on a passing of accounts application. If you have any questions, please e-mail us at hull.lawyers@gmail.com or leave a comment on our blog page.

Click here for more information on David Smith.

Click here for more information on Jonathon Kappy. 

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No one wants to be embroiled in a family fight. No one wants their parents to disinherit them. No one want to fight with their siblings. Yet, as Estate litigators, we know that even those with the best expectations and planning are not immune to estate litigation. Unfortunately, rapper Nate Dogg’s Estate recently discovered this reality, AGAIN.

Nate Dogg passed away in March 2011. Having died intestate at the age of 41, litigation has surrounded the Estate in California Courts since shortly after his death, including who was going to act as Estate administrator. Although the litigation relating to the administration of the Estate appears to have been resolved, a quick google search of his name will return many hits related to his potentially modest estate being the subject of various claims.

In addition to those claims that were commenced shortly after the rapper’s death, it has been recently reported (as can be found here) that a woman has made a claim against his Estate for unpaid child support in the amount of just under $340,000.  The allegations are that Nathaniel Dwayne Hale (aka Nate Dogg) was supposed to pay Ms. Shereda Williams child support in the amount of $4,358 per month for a child reported to have been born in 2006. It is alleged that the Estate owes Ms. Williams the balance of unpaid child support obligations as well as any payments which would have accumulated since Nate Dogg’s death. 

Many details of Ms. Williams’ particular claim remain unclear.  Yet, there appear to be several very easy lessons to learn from Nate Dogg’s untimely death, notably, engage in some estate planning and be aware of your financial obligations before and after death. Wherever situate your Estate, I think these two principles are universally applicable as good practice.

Thanks for reading,

Nadia M. Harasymowycz

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I recently came across an article in the American Bar Association’s ABA Journal that contains some surprising results from a Reader’s Digest poll. The magazine polled over a thousand Americans to determine the top one hundred most trusted people in the United States. As a lawyer, the most startling results for me were those for judges. According to the poll, the most trusted judge in America is Judith Sheindlin, the eponymous host of television’s Judge Judy. Several places below her on the list was Justice Ruth Bader Ginsburg, followed by Chief Justice John G. Roberts and Justice Anthony M. Kennedy.

After reading this, I decided to do a little more research (on Wikipedia) on television’s most recognizable judge. Before being on TV, Judge Judy worked as a lawyer in the New York family courts before being appointed to the bench. After being featured on an episode of 60 Minutes, she was contacted about starring in her own reality courtroom series. The show, which began in 1996, has been an incredible success and has made Sheindlin an extremely wealthy woman. It has been reported that she is the highest paid personality on television, making approximately $45 million annually for 52 days of taping per year.

As I suspected, in her televised role, Judge Judy is not really a judge at all – she is actually acting as a private arbitrator, adjudicating small-claims disputes within a simulated courtroom setting. All parties appearing on the show sign contracts agreeing to have their matter arbitrated by Sheindlin. Although not done on a courtroom set, I occasionally arbitrate estate and trust disputes as part of our Hull Estate Mediation practice.

Anyone who knows me in a professional capacity knows that I am a big proponent of alternative dispute resolution mechanisms such as mediation, arbitration and the emerging practice of “med-arb” whereby an unsuccessful mediation automatically transitions into arbitration. Alternative dispute resolution can allow for settlements to be reached more expediently, more efficiently and more privately than through the traditional court process. When faced with the reality of litigation, methods of alternative dispute resolution can serve to ease the pain of what can be an extremely expensive and emotional process for clients.

While I do appear in a “television” series, it is unfortunately nothing like Judge Judy. Despite this, I am happy to now know that Sheindlin and I both promote alternative dispute resolution in our own very different ways.

Thanks for reading and have a good week.

Ian M. Hull