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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A “festival” running at London’s Southbank Centre in January explores death from all angles. The festival will explore attitudes towards death, using music, workshops, literature and art installations. Festival events range from the whimsical to the serious.

Highlights include an art installation entitled “the ‘Boxed’ coffin exhibition”, which features a number of unusual coffins, including coffins in the shape of a dumpster, a lion, a Mercedes, a car, and a skateboard.

Less light-hearted events include a debate on assisted dying; a music concert featuring composers obsessed with death; an art installation that commemorates the 250,000 people that will be born or die in 12 hours around the world; a poetry workshop on writing poetry when dealing with the grief associated with the death of a loved one, and a pseudo-funeral procession borrowing from a New Orleans funeral parade.

Other events include a chalkboard where attendees can record an item from their “bucket-list” of the one thing that they want to do before they die, and a children’s play chronicling the last days of a pet guinea pig.

Together, the festival’s numerous events shed light on and led to healthy discussion of a topic many are reluctant to talk about. 

Thank you for reading.

Paul E. Trudelle - Click here for more information on Paul Trudelle. 

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A ‘controlled substance’ is any type of drug whose manufacture, possession or use is tightly regulated by a government because of the higher-than-average potential for abuse or addiction. In Canada, controlled substances fall under the parameters of the Controlled Drugs and Substances Act (S.C. 1996, c.19).  How is it, then, that hundreds of thousands of doses of OxyContin, morphine and other prescription narcotics are ‘robbed, pilfered or otherwise lost’ from the supply chain each year in this country?

On January 23, the National Post’s Tom Blackwell published some startling statistics about the not-so-slow leak of prescription narcotics from the supply chain. According to the Post’s research (based on Health Canada statistics), only 64% of the loss and theft of oxycodone (the active ingredient in OxyContin) is attributable to theft from, or robbery of pharmacies. Suppliers higher up the chain (e.g. manufacturers and importers) are also losing significant volumes of product, accounting for the other 36% of total loss. What scale of loss are we talking about here? If we just look at oxycodone, the combined black-market value of losses from pharmacies and ‘licensed dealers’ (producers, distributors, wholesalers) in 2010 was just over $18 million. That’s roughly a half million tablets.  Professor Benedikt Fischer, an addictions expert at Simon Fraser University summed it thusly: “This isn’t some trivial problem. We’re now looking at a problem that is a major source of disease and death. These drugs are killing a lot of people.”

The volume of drugs taken from wholesalers and distributors has also increased substantially in the past five years.  It is difficult to put a finger on any single cause.  Blackwell's article presented some prime suspects for consideration, including cutbacks in the number of controlled substance inspectors and the bare fact that a trend of increasing prescription rates for opioids translates into more opioids being in the proverbial pipeline.

It is critical that Health Canada gets to the root of the supply chain leaks.  Fischer's "these drugs are killing a lot of people" was no overstatement.  Indeed, as discussed in an earlier blog, accidental deaths in Ontario due to opioid use exceed deaths from HIV.  And from the Globe and Mail (January 6, 2012): the same number of people die from opioid-related deaths in Ontario each year as they do from motor vehicle accidents.  

Jennifer Hartman, guest blogger

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This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag give an overview of the book "With the Stroke of a Pen, Claim Your Life" by Jane Blaufus. This book is based on Jane's personal experience with the loss of her husband. In this episode, Ian and Suzana examine the "Courageous Questions" asked by Jane, questions they feel are associated with the day to day issues of estate planning.
If you have any questions or comments, please send us an email at hull.lawyers at gmail.com

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Renowned blues singer Etta James died last week at the age of 73. She succumbed to chronic leukemia, complicated by dementia and kidney problems.

Etta James had a particular significance to me. After buying my first CD player, Etta James’ CD was the first CD that I purchased. That CD got a lot of play.

Etta James lived a turbulent life. She was born to a mother whom Etta described as a scam artist, a substance abuser and a fleeting presence during her younger years. She did not know her father. During her lifetime, she would battle addictions.

However, as a musician, she soared. She was inducted into the Rock and Roll Hall of Fame, and won numerous Grammys, including a special lifetime achievement Grammy in 2003.

Near the end of her life, her health declined, and here family was involved in a dispute over her care. Her two sons had challenged decisions being made by Etta’s husband, who was the conservator of Etta’s $1m estate.  The dispute was reported as settled, with the husband staying on as conservator, and the amount available for her expenses and care being fixed at $350,000. The sons were also to receive a full financial accounting of Etta’s music catalogue.

Thank you for reading.

Paul Trudelle - Click here for more information on Paul Trudelle. 

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Rule 75.1 of the Rules of Civil Procedure provides for the mandatory mediation of estates, trusts, and substitute decisions matters which are commenced in Toronto, Ottawa, or the County of Essex.
Rule 75.1 provides that, except in a contested Passing of Accounts, the Applicant shall make a motion, in the same way as under R. 75.06 (Application or Motion for Directions), seeking directions for the conduct of the mediation. Rule 75.1.05(2) provides that the Notice of Motion for mediation directions is to be served within 30 days after the last day for serving a Notice of Appearance.
 

In terms of who actually conducts the mandatory mediation session, R. 75.1.06 provides that the mediator can be a person chosen from the list for the county by agreement of the designated parties, a person assigned from the list by the mediation co-ordinator for the county (at the request of a designated party), or a person who is not named on the list, if the designated parties consent.
 

Most clients are vaguely familiar with the court process and think they know what to expect - they know it involves a judge, their lawyer, a trial, and a courtroom. Not many clients however know what to expect at mediation. As a result, it is important for counsel to take time to describe the process, answer any questions, and prepare their client for what they can expect to happen at mediation. By doing so, counsel can help reduce their client's anxiety about the attendance.
 

Estate mediations can be a very emotionally draining experience. Apart from any legal foundation to the dispute, many intangible factors tend to also be present in estate matters. Jealously, anger, and greed are difficult emotions to overcome and can be sever stumbling blocks in settlement. Sometimes, steering clients away from the emotional aspects and towards the financial implications of continued litigation assists them in moving past those types of difficulties.
 

Clients need to be assured that the mediation process is completely confidential and that anything that is said or admitted cannot be used against them at a later date. The fact that there will be no public record of the proceeding may provide some clients with the comfort to say things that might otherwise not be said. In addition, clients can be advised that any information they provide to the mediator to try to help him or her understand their position better can remain confidential, and that the mediator will not disclose any information unless expressly authorized by the client. Having the opportunity to participate in open and frank discussions may be the key to resolving outstanding issues, issues which might not otherwise be addressed in the litigation process.
 

In jurisdictions not governed by mandatory estate mediation, r. 75.06(2)(f.1) allows a judge hearing an Application or Motion for directions to direct that a mediation session be conducted nonetheless. Counsel may want to keep this provision in mind when otherwise seeking directions in respect of a matter which may, in whole or in part, benefit from a mediation session.
 

Ian Hull - Click here for more information on Ian Hull. 

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Thank you to all who attended our Breakfast Series yesterday, and congratulations on getting a head start on your CPD! 

For those of you who didn’t attend, you missed three wonderful presentations which covered a wide array of issues faced estate practitioners, both litigants and solicitors alike. Paul Trudelle provided a reminder to all of us that the Rules of Professional Conduct deserve a routine review, and drew our attention to specific examples of how estate practitioners are impacted by Rule 2, and how we should turn our minds to this rule during the course of every retainer. Natalia Angelini provided a detailed review of the Pecore decision and the issues of joint ownership in estate planning. While Ian Hull wrapped up the morning with discussion about the pitfalls and traps of disinheritance, and what planners and litigators should look to when strategizing.  

Please check out our website and see our previous presentations and papers, the papers presented at yesterday’s seminar will be posted shortly.  Also stay tuned to our website for information regarding our next breakfast series, I hope to see you there.

Have a great weekend,

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz. 

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A friend recently drew my attention to a new Facebook app (ifidie) that allows you to leave a message that will only be published after you die. A video about the app can be viewed here, and the press kit on their website identifies that this could “even [be] a will”.    In brief, the app allows you to upload videos and messages, and authorize trustees (it looks like they must be Facebook friends of yours) which can notify Facebook upon your death. Once Facebook has been notified of your death, the messages you have identified will be posted to your profile[1].

You may remember the Sunscreen Song, a smash hit in the late 1990s that gave ‘advice’, most notably to wear sunscreen.   Some of the things that we have to tell people are really important; some are not. I can certainly see this app being used to reveal secrets, leave us with whatever ‘sage’ wisdom or venom is felt necessary, and possibly to simply say goodbye, much in the same vein as the Sunscreen Song. What happens if it doesn’t stop at that? 

In Ontario, under the Succession Law Reform Act, Part I, section 3, “A will is valid only when it is in writing.”  What happens if the video posted includes a testamentary disposition? Certainly, it wouldn’t be a valid will in Ontario, having not met even the minimum writing requirement, but perhaps in other jurisdictions such a statement could be considered a valid testamentary document. In Ontario, would it be, and could it be used as, evidence of testamentary intention?  What if the ifidie post is a written message stamped with electronic signatures? Could the argument be made that it’s a Will?

Leaving aside the various other issues that relate to post-mortem social media presence, the potential for the app to be used for testamentary purposes may have serious ramifications for Estate litigation, both in Ontario and beyond. 

In our constantly changing world… can you keep up?

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz. 

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With the extreme advancements in technology, we are all struggling to keep up. Whether its asking your kids about this thing called Facebook or remembering to keep a record of your online banking information, we have reached a stage where we can’t avoid the realities of living in a world where a great deal of our life is conducted in ‘cyber-space’.  

The Will Registry, Inc. is a web site that has recently been launched in New York State. The site is a centralized database for storage of wills, trusts, powers of attorney, heath care directives and other vital legal documents. Further, it includes a directory to locate originals.   The website also makes it possible for the member to access their information from anywhere in the world. Some of the services are discussed in this blog. 

Notably, the website also allows for professional accounts. Allowing lawyers, trust officers, physicians, hospitals and health care providers to create their own accounts to store information relating to their records. Hypothetically, this would allow lawyers to keep a record of the wills they’ve drawn and what was done with the original. The record being preserved, and searchable, with the information being disseminated limited to that allowed by the member.  

We’ve all encountered the situation where we believe that a client or the Deceased in an estate battle made a Will, and yet no one can find it, or only a copy can be found. This could lead to a variety of possible court Applications, all costly, lengthy and ultimately with no guarantee of success. The search capabilities included in this site, as well as with the Ontario counterpart (although it is limited to Wills), could assist in general conundrums of this fashion, assuming the member has made that information available.  

The extent to which this website is used and whether there are any ethical issues for its use from a professional perspective is yet to be seen. I suppose that only time will tell how such websites impact estate planning, administration and litigation, but its certainly something to think about the next time you’re looking for a will.  

Until Tomorrow,  

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz. 

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In 2007, the British Columbia legislature passed the “Adult Guardianship and Planning Statutes Amendment Act”, parts of which came into force in September of 2011. One of the key points to this legislation, finding interest in the estate world recently, is the new mandatory mediation requirement for guardianship applications.  Several of the other considerations addressed in this new legislation are considered here.

The Canadian Centre for Elder Law Studies, a division of the British Columbia Law institute, has recently prepared a report on this very issue, titled “Elder and Guardianship Mediation”.   At the risk of stating the obvious, our demographic is quickly aging, and issues surrounding anything dealing with the elder population are appropriately en vogue.   The substantial report deals with a variety of important issues in respect of the type of training a mediator might require in this particular field, ethical principles for consideration for all involved, as well as attending to an explanation of key concepts and definitions related to this field.

Although this report was prepared for British Columbia, with a detailed analysis of their legislation, certainly the parallels to Ontario are evident and likely to be found very persuasive by the Ontario Courts. Under Rule 75.01 of the Ontario Rules of Civil Procedure, mandatory mediation applies to the Substitute Decisions Act. As guardianship in Ontario is governed by the Substitute Decisions Act, it may be that the information and considerations addressed in the Report will be helpful both in practice to Ontario counsel, as well as to the judiciary when considering such matters.

Get an early start on your CPD Hours and join us for our Breakfast Series this Thursday, January 19, 2012 at 8:30 am at the Ontario Bar Association Conference Centre located at 200-20 Toronto Street, Toronto Ontario. Please see here for a link to our registration form. I hope to see you there!

Thanks for Reading,

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.