READ THE TRANSCRIBED PODCAST HERE
During this podcast, Suzana discussed the type of taxes that arise on death and suggested ways to defer or reduce each of them:
(i) capital gains tax;
(ii) tax on RRSP and RRIF assets; and
(iii) probate fees Suzana then discussed other tax reduction strategies as well. --------
READ THE TRANSCRIBED PODCAST HERE
During this podcast, Ian finished speaking about knowledge and approval, and talked about mistakes in that context as well as reviewing the concept of undue influence.
In previous Blogs, we have discussed, in part, recent legal developments surrounding the elderly. At the May 25, 2006 Elder Law program that Ian attended, the initial speakers addressed some of the important remedies available to individuals in the context of both the criminal and civil courts.
One interesting reference identified by the speakers was that of section 331 of the Criminal Code, which provides for a criminal remedy against someone who victimizes an elderly person.
Section 331 provides, in part, that anyone who commits theft or who, being entrusted, whether solely or jointly with another person through a Power of Attorney, fraudulently converts the proceeds of an elderly person, may be charged with a criminal offence.
Rita Zaied, the manager of Legal Services for the York Regional Police, noted that in situations where criminal charges are pursued in the context of Power of Attorney matters, the police and the Crown's office acknowledge that there may be circumstances where the victim may not be able to give evidence. Therefore, they look to other sources, such as the record that was created in the civil law proceedings.
For example, any Affidavits prepared by the victim in the civil law proceedings will often detail some of the history of what happened. In the criminal court, this Affidavit may be helpful. Rita Zaied went on to say that where a lawyer can come to court and confirm that his client was clearly capable when he or she prepared the Affidavit, this evidence can be compelling in the context of the criminal proceedings.
All the best, Suzana and Ian. --------
As we talked about yesterday, there are 2 important decisions of the Ontario Court of Appeal that have recently been granted leave to appeal to the Supreme Court of Canada. On November 1, 2005, the Court of Appeal again considered the question in Saylor v. Madsen Estate. In this case, the Court of Appeal held that, while the deceased's intention was clear from the evidence, the presumption of resulting trust did not need to be considered. The Court confirmed the approach set out in Pecore v. Pecore and held that:
Reliance on the presumptions has diminished because the Courts are now first examining all of the evidence to determine the transferor's intent. That is to say, Courts are tending to examine the evidence in its entirely and base findings regarding intention on all the facts. It will only be where the evidence itself is unclear that reliance on the presumptions becomes necessary.
This approach will reflect what I believe to be a sensible and modern approach to an analysis of the presumptions. ...there is no reason to resort to the presumptions where evidence of intention is clear. This approach is both contemporary and reasonable since the overall purpose is, after all, to ascertain the transferor's intention."
Continue Reading...Last week, we commented on our Blog about the whole question of joint accounts. At the end of the week, Eugene Meehan's email newsletter announced that 2 important decisions from the Ontario Court of Appeal had been granted leave.
In Pecore v. Pecore, the deceased transferred assets held in his name jointly with his daughter. The jointly-held assets amounted to approximately 80% of the value of the Estate. The deceased was concerned that the transfer of the assets to his daughter's name could trigger a deemed disposition and result in tax consequences. As a result, he wrote the financial institutions and told them not to adjust the cost bases for the investments, as he retained 100% ownership and that the transfer to joint names was for probate purposes only. For the trial decision, click here.
Subsequent to the transfer of the investment accounts, the deceased also amended his Will to name his daughter and his daughter's husband as residual beneficiaries. The daughter was married to a man who was a quadriplegic as a result of a motor vehicle accident, and the daughter was her husband's primary caregiver.
Approximately two years after the deceased's death, the daughter and her husband's marriage ended and the daughter's husband, in the course of the divorce proceedings, learned that she had received a substantial inheritance by way of a joint ownership account following her father's death. The husband brought a claim against the daughter claiming an interest in the jointly-held assets and claiming that he was entitled to 50% of those assets.
Of interest, in this case the transfer of the joint account was not challenged by the siblings of the transferee, it was challenged by the deceased's son-in-law. At trial, the Judge reviewed the evidence and concluded that the deceased intended the gift of the assets held on joint account with the daughter. The Court again, as is customary in these matters, reviewed the specific factual circumstances relating to this matter.
Continue Reading...As Madam Justice Greer said, a gift is not a kiss in the dark. Unlike the memory of a kiss, which fades in time, the giving of a gift has lasting consequences: Feeney's Canadian Law of Wills, 4th Edition (Lexis Nexis), p. 1.1, per Justice Greer in Schilthuis v. Ainold, [1991] O.J. No. 2212 (Gen. Div.) at p. 2 of 25.
There are two fundamental ways in which a person may make a gift. The first is, of course, by testamentary disposition and the second is by inter vivos gift. The question of validity is naturally paramount in the context of estate litigation matters. Consequently, once the intended gift has been challenged, unless there has been compliance with the appropriate legal requirements to perfect that type of gift, the transaction will be invalidated, no matter how clear the intention of the donor might otherwise be.
Generally speaking, the governing statement of law with respect to the ownership of money deposited in a joint account, when the money is deposited by one of the account holders only, is as set out by the Supreme Court of Canada in Niles v. Lake, [1947] 2 D.L.R. 248 at 254 (per Taschereau J.).
As such, the onus is on the recipient of the inter vivos gift to rebut the presumption of a resulting trust and, where the person is deceased, the presumption can only be met by providing the same convincing and unimpeachable corroborative evidence.
The decision of Mr. Justice Cullity in Cho Ki Yau Trust v. Yau Estate (1999), 29 E.T.R. (2d) 204 (Ont.Sup.Ct.J.), is an excellent illustration of how the Courts have dealt with the whole question of ownership of inter vivos gifts and joint accounts. The Court considered issues such as the ownership of the joint account in light of the lack of an express right of survivorship in the language of the bank's joint account agreement. Justice Cullity made it clear that, in circumstances such as this, the question of whether the son obtains a beneficial right to the funds on deposit depends upon the intention of his mother and that, for this purpose, the terms of the document provided by the bank for their signatures are of secondary importance. The Court made it clear that those documents really just determine the rights and obligations in respect of the bank.
In essence, the Court made it clear that where there is evidence that the original deposit of the funds was made by one of the individual joint account holders, in the absence of any evidence to the contrary, it must be presumed that the sole depositor was the beneficial owner of the funds. This circumstance, where the one individual deposits most, if not all, of the funds into the account and the other joint holder is there solely for the convenience and benefit of the depositor, is of course common in many family situations.
Continue Reading...Ian just returned from an excellent seminar put on by the Law Society of Upper Canada. It was called "Elder Law - Your Growing Clientele". Like most of this group's continuing legal education, it was supported by a high calibre cast of speakers and a good range of topics.
The seminar started off with a dynamic roundtable discussion concerning criminal and civil remedies when dealing with Powers of Attorneys. There were 2 members of the Greater Toronto police force present and Susan Woodley, of Woodley Law, represented the civil bar.
Dr. Ken Shulman and Ian spoke about inter vivos gifting and the presence of undue influence in such circumstances. Ian prepared a paper on the subject and, in part, reviewed the current circumstances relating to inter vivos gifts, or gifts during one's lifetime, from the perspective of the ever-present cases regarding joint accounts. Ian pointed out that the onus or burden of proof lies on the recipient of an inter vivos gift. Furthermore, he noted that the Courts will look at all of the surrounding circumstances when trying to determine if a gift is indeed truly received by someone, or whether they are merely holding the account in trust for the estate. One of the most intriguing speakers was Dr. Ken Shulman from Sunnybrook Hospital. He provided the medical/psychiatric analysis underlying the whole issue of undue influence.
Once Ian has had a chance to review the papers that were presented more carefully he will be reporting further on the conference.
Continue Reading...Recently I listened to a 3-part series of interviews of F. Lee Bailey on "Coast to Coast". Not only were the interviews interesting, they were what we think are a true sign of the Podcast times. These were informal discussions with one of the great American lawyers. They were done at his home and F. Lee Bailey provided us with some wonderful war stories as well as some guidance to the profession as a whole for the future.
It seems to us that the fact that someone can go online and listen for free to a legal icon is truly the spirit of what Podcasting is today.
We hope to present some Canadian legal heroes in future "Hull on Estates" Podcasts and we will keep you posted.
READ THE TRANSCRIBED PODCAST HERE
During this podcast, we discussed the following:
(i) the accounting obligations of an Executor;
(ii) the concepts of informal and formal accounts;
(iii) investment of Estate assets;
(iv) the recreational property "conundrum"; and
(v) planning for capital gains taxes. --------
READ THE TRANSCRIBED PODCAST HERE
During this podcast on knowledge and approval and mistake, we discussed the following:
(i) the general concept of "knowledge and approval" and what amounts to such;
(ii) the case of Hastilow v. Stobie;
(iii) how to ordinarily establish "knowledge and approval", and what might be needed in special circumstances;
(iv) the cases of Crerar v. Crerar, Re Phelan and Fulton v. Andrew; and
(v) words appearing in a will by inadvertance. --------
As we thought about our Blog this weekend, it struck us that perhaps we haven't been entirely clear on how we hope to send out our own unique form of social media. Presently, our plan is to produce our 2 Podcasts weekly and we are going to try to Blog on a daily basis.
Unlike many current Blogs, there are 2 of us who are primarily going to be Podcasting and Blogging. Ian and I intend to jointly Blog, recognizing that it is "outside of the box" a bit because, right now, most Blog on their own. However, given the fact that we are working so closely on the Podcasts together, we thought a joint Blog format would make sense in the circumstances.
As to the format of the Blog itself, we are going to try each day to provide a quick comment relating to the social media world, together with a note on a legal issue that catches our attention.
As to the social media comment, Ian has now signed up for an upcoming conference called "Podcasters Across Borders", a Podcaster conference being help in Kingston on June 23 and 24. It looks like a fantastic event and we are sure it will enhance our own Podcasting.
As for the legal note, we are currently working on an intensive review of the whole concept of testamentary capacity. Our "Hull on Estates" Podcast for April 25, 2006 (Episode 5) addressed the following legal issues:
· constructive trusts;
· specific devises and bequests;
· life insurance;
· the description of beneficiaries;
· trusts/life interests;
· the selection and powers of trustees, including the power to encroach; and
· ademption.
Continue Reading...I was reminded by the Globe and Mail May 18, 2006 article on the VoIP software "Skype" that this is a technology boom that not everyone has become aware of.
The first question to ask is what is VoIP? It is essentially using the Internet to conduct phone calls. It is known as "Voice over Internet Protocol" (VoIP). It is a technology that allows you to make telephone calls using a broadband Internet connection instead of a regular (or analog) phone line. Some services using VoIP may only allow you to call other people using the same service, but others may allow you to call anyone who has a telephone number - including local, long distance, mobile and international numbers. Also, while some services only work over your computer or a special VoIP phone, other services allow you to use a traditional phone through an adaptor.
Skype is a leader in this technology. Just how big is Skype? It has over 100 million registrants. It is clearly a part of the technology boom that is on a very fast track. We use the Skype software everyday and, generally speaking, it is very affordable and effective. The Skype technology has advanced to the stage that you can call from a Skype line to a regular phone line.
Those who are not keeping up with the technology are bound to be left behind!
In our ongoing effort to keep you up-to-date on our Podcasts, we have the following summaries: Hull on Estates Podcast - Summary Episode No. 4 During our 4th podcast on "Hull on Estates" - for April 18, 2006 - we discussed the following legal issues:
The lead article on the Law page in the Globe and Mail yesterday was all about the various uses and success stories in the world of Podcasting. The article highlighted the efforts on the part of Torys LLP to use Podcasts and video Podcasts as an important client service and marketing tool.
As an aside, there is also an interesting debate going on in Podcast circles about the use of video Podcasting. The Globe article helps highlight the difference between the two mediums. There is an excellent Podcast on the difference between video and non-video Podcasts on Ultimate Podcasting . The discussion centres around the fact that non-video Podcasts are arguably going to be the central Podcasting medium because they allow the listener to multi-task, while the video Podcasts require more direct attention. During the Podcast the interviewer points us to an excellent article in the March 27, 2006 edition of Time Magazine entitled The Multitasking Generation .In the Time Magazine Article they point out the growing trend of the ability of kids and adults to multi-task.
The battle between video and non-video Podcasting will no doubt rage on; however, our vote stays with non-video Podcasting for now. We want our listeners to be able to fold the laundry while listening. Both tasks need to be done and both can be properly done at the same time. The perfect multi-task!
Continue Reading...With over 50% of Canadians and 70% of Americans who do not have wills, the cost of preparing a will (and a Power of Attorney) needs to be considered. I must confess I have never personally understood the pricing arrangement with will drafting in Canada.
In short, it is a service provided by lawyers that is often substantially undercharged for and why it is so many people do not take advantage of this in the marketplace is still a mystery to me.
Certainly in Toronto, a husband and wife can still get Powers of Attorney and wills done for under $1,000 together.
Historically, it has been the case that a lawyer will charge less for the preparation of the will knowing (and hoping) that he or she will receive the estate administration work on the death of the client.
However, in our more complicated and fast-moving world, there is simply no guarantee that a lawyer will be part of the process at the end of the day. Even if a lawyer does get lucky and does get the file for the estate administration, with the advent of jointly held property, multiple wills and more sophisticated estate planning, the necessity for a lawyer after that, while important, is not nearly as substantial.
Continue Reading...READ THE TRANSCRIBED PODCAST HERE
During this podcast on suspicious circumstances, we discussed the following:
(i) the general concept of "suspicious circumstances" and what amounts to such circumstances;
(ii) the onus of proof on a propounder of a will and an alleger of undue influence;
(iii) the meaning of the phrases "the true will of the deceased", and the "righteousness of the transaction";
(iv) the rule in Barry v. Butlin; and
(v) the Supreme Court of Canada's decision in Vout v. Hay. --------
READ THE TRANSCRIBED PODCAST HERE
During this podcast on the role of the Executor, we discussed the following:
(i) Executor's fees;
(ii) the use of professionals by the Executor;
(iii) removing Executors; and
(iv) income tax filings. --------
I was thinking about this whole social media scene in the area of Estate podcasting and I have to admit that I was dragged into the second stage of blogging, kicking and screaming.
My law partner and co-host of our two Podcasts, Suzana Popovic-Montag, suggested to me a couple of months ago that while she liked the idea of Podcasts she thought we should do 2 per week. One focused on the lawyers who we work with in the estates area and one for lawyers and people generally interested in estate planning issues.
Out of her idea sprang our Podcasts and we just launched our 8th of the series. While our 16th Podcast is certainly better than the first one, we are both working on our skills as interviewers and as information delivery people.
I am struck by the ever-growing and almost always useful legal Podcasts that are available on line and I commend them to you. A key word search in itunes or any of the podcast resources brings up many choices. "Coast to Coast" is one of the leading US Legal Podcasts and if you are interested in learning about podcasting generally, I suggest "Podcast 411" .
Episode 8 of our "Hull on Estates" Podcast was released this morning and we continued with our current intensive legal analysis of the important concept of Testamentary Capacity. We are going to spend a considerable amount of time on this legal issue and we are confident that it will prove to be a useful summary of the topic. While this area of the law is ever-changing, we think our Podcast series will be a helpful resource for lawyers and we encourage our listeners to go back over these Podcasts to assist them in understanding the various aspects of the topic.
Suzana and I are certainly learning a great deal about this area of the law in the course of reviewing it for our Podcasts. In this Podcast, we tackled the concept of suspicious circumstances. We broke down testamentary capacity a bit further, beyond insane delusions. We also looked at capacity as opposed to the idea of knowledge and approval. Suzana talked about the test and reminded us that the onus is on those who propound the will to prove it is a valid will.
However, where you have suspicious circumstances, the propounder of the will needs to lead evidence to deal with this allegation. The Supreme Court of Canada Case in Vout v. Hay is the leading case on this topic. While we touched on the concept of undue influence we just talked about the overlap with suspicious circumstances. We intend to really work through undue influence in future Podcasts.
Continue Reading...This is day 3 of the blog and I still have the early blog excitement in my blood. I know the dog days of summer will be tough and the Christmas rush will make me crazy; however, I am determined.
How did I start this blog gig ? Well the idea came from my brother-in-law, Tim Fallis http://www.blackrockmarketing.com,who also happens to be one of Canada's greatest marketing guys, he is President of Blackrock Marketing, and Tim's idea was supported by his equally talented identical twin brother Terry Fallis. Tim is the idea man in social media and Terry is the get it done man. Terry is President of ThornelyFallis, a PR communications firm and Terry is one of the leaders in the Podcast world with his and David Jones' Podcast, Inside PR. I have always been one to trust the judgment of good people around me and needless to say I really trust the judgment of Tim and Terry.
Next I bought and actually read the new book on blogging, Naked Conversations by Robert Scoble and Shel Israel (http://www.amazon.com/). It was an easy read and an important confidence booster. With our Hull Estates Podcasts going, the move to a Hull Estates blog was a natural extension. My thought on blogging is that you should get informed and then jump right in to this vital aspect of communications. I am also encouraged by the recent article in the Canadian Bar Association National Magazine where Jordan Furlong and Melanie Raymond provided an A-Z list of trends for the legal profession. The authors listed blogs as the second important legal trend.
We certainly hope to provide both general and specific comments on estates and we look forward to the inevitable exchange with our participants in the blogging world.
This is always a big day in our house as with most families. It is truly a day to celebrate the wonderful things that many of our mother's ( and wives) do for our family, everyday !
So what happens when they go ? Is your mother the one person holding together the whole family chemistry ? Is she the glue that keeps the family emotions from blowing over ?
Again, what happens when she is gone ? Do you think it would be a good idea to talk about life after mom ? While today is NOT the day to bring up the topic, it may be something we should be talking about with our family and something that needs to be considered in the whole family estate planning fabric.
On to business, I mentioned yesterday that we are podcasting. My partner Suzana Popovic-Montag and I host 2 weekly podcasts. They are great fun to do and I think they cover a good cross-section of the legal and non-legal aspects of estate law. If you want to listen in, right now it is probably easiest to get to them in itunes and use the key word Hull in your search. It can also be found on The Podlounge.
As I try to follow the Canadian social media scene I intend to look at and report on other legal and non-legal sources. I note that my colleague Robert Coates has his own blog. Robert has been blogging since November 2004 and he offers comments on recent developments in the law. Robert is a Toronto Lawyer Specializing in Estate & Family Law. --------
READ THE TRANSCRIBED PODCAST HERE
During this podcast on the role of the Executor, we discussed the following:
(i) applying for probate;
(ii) timing of distributions;
(iii) making funeral arrangements;
(iv) locating the will;
(v) filing the final tax return; and
(vi) providing information to beneficiaries. --------
READ THE TRANSCRIBED PODCAST HERE
During this podcast on testamentary capacity, we discussed the following:
(i) the requirement of a "disposing memory";
(ii) age-related "incapacities";
(iii) the Re Bohrmann and Fulton v. Andrew decisions; and
(iv) the practicalities of determining testamentary capacity. --------
READ THE TRANSCRIBED PODCAST HERE
During this podcast, we discussed the following:
(i) the general role of the Executor;
(ii) collecting and distributing assets; and
(iii) applying for probate. --------
During this podcast, we discussed the following:
(i) age restrictions to keep in mind when drafting a will;
(ii) requisite mental capacity; and
(iii) the issue of insane delusions. --------
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