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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As with any other type of litigation, documents obviously play a pivotal role in estate disputes. A claimant against an estate will often be reliant upon documents last seen in the possession of the deceased. But what if the documents so critical to the claimant’s case cannot be located in the estate residence?

Estate litigation is somewhat unique in that the custodian of the key documents in the case may be the party who has a great deal to gain from their loss or destruction. The ethical issues are front and centre and surely the advise of the estate solicitor to the estate trustee must be that he or she preserve all documents in the estate residence that could in any way have an impact upon a claimant’s case.

Sometimes, whether inadvertently or not, documents inexplicably go missing. The disappointed or suspicious claimant may avail himself of the legal doctrine or spoliation* which posits that an adverse inference will be drawn against a party who loses documents that were conclusively shown to have been in his custody.

Until tomorrow,

David M. Smith

*For a more detailed discussion on spoliation, see the article "Spoliation and Other Evidentiary Issues" on the Cassels Brock Blackwell LLP website.

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In Ontario, a testamentary document that is entirely made in the handwriting of a deceased and signed by him or her may be considered a valid will without the necessity of witnesses. But where such a document has two lines with the word “witness” under each line at its end, and where no one has signed as a witness, does the document still meet the requirements of a valid will?

This was the fact situation which presented itself in the recent Ontario case: Re Atherton Estate. The Court concluded that, while there was no question that the document met the formal validity requirements of a holograph will*, the surrounding circumstances suggested that the deceased intended the document to be a draft that would not take effect until it had been typed out and re-executed by the deceased in the presence of two witnesses.

The wrinkle was that, when the relative to whom the deceased had given the handwritten documents returned to visit him in hospital the next day with the typewritten copies, the deceased exhibited no intention to execute the will in its typewritten form.

Until tomorrow,

David M. Smith

*Succession Law Reform Act, R.S.O. 1990, C. S. 6

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Listen to "Tips for Directing and Controlling Estate Litigation" 

Read the transcribed version of  "Tips for Directing and Controlling Estate Litigation

During Hull on Estates Episode #48, Craig Vander Zee and Bianca La Neve continue their discussion on tips for controlling and managing estate litigation, focusing on orders giving directions, oral discovery and mediation.

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Listen to "Protecting Your Children's Inheritance"

Read the transcribed version of "Protecting Your Children's Inheritance"

During Hull on Estate and Succession Planning Podcast #49, Suzana Popovic-Montag and Jordan Atin discuss considerations and techniques to ensure the proper use of inheritances. Some of these techniques include staggered inheritances, incentive trusts and charitable foundations.

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On the way into the office on the GO Train a couple of weeks back, an advertisement caught my eye. The “Book of the Month” was the unlikely titled “A Short History of Tractors in Ukrainian” by Marina Lewycka. Usually, I am not one for finding a good read from an advertisement in the newspaper, even though this one was apparently short-listed for the Mann Booker Prize 2005 (I am a sucker for anything that wins awards). However, this book (which I hasten to add I have not read) nonetheless caught the eye of this estate litigator with the following synopsis (culled from the Penguin website):

“For years two sisters have had as little to do with each other as possible…But now they had better learn how to get along, because since their mother’s death, their aging father has been sliding into his second childhood, and an alarming new woman has just entered his life. Valentina, a bosomy young synthetic blonde seems to think their father is much richer than he is and she is keen to see that he leaves this world with as little money to his name as possible. If the sisters don’t stop her no one will.”

I don’t know if Valentina marries the father, or whether he demands a marriage contract or whether the sisters file a Notice of Objection after their father’s death to challenge his new will. If the author’s audience is anyone other than estate lawyers, I expect these concerns don’t figure prominently in the plot. If nothing else, Ms. Lewycka joins the ranks of Dickens, Grisham, and others as authors who recognize the universal appeal of an estate fight…

Until tomorrow,

David M. Smith

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Adults can reject medical treatment even if doing so leads to their death. Should the same right be afforded to our youth? This is the question arising out of a recent Court of Appeal decision in Manitoba.*

The Court held that the rights of a 14 year-old girl were not violated when she was temporarily made a ward of the province and received life-saving blood transfusions against her wishes and contrary to her religious beliefs.

The legislative source for this decision** grants a judge ultimate decision-making authority for those under 16, with or without capacity, based on the “best interests” of the child. Although the Court acknowledged that the legislation infringed the minor’s Charter rights, in the circumstances of this case it found such violation to be justifiable.

It remains to be seen whether this decision is appealed to the Supreme Court of Canada. In any event, this is surely not the last word on the issue. I expect that other cases will arise where courts have the unenviable task of balancing considerations of health and safety of the young against their demands and desires, in particular those of mature teenagers.

And let’s not forget about the incapable. I wonder…how does a court-appointed guardian of an incapable minor ethically handle a situation where an urgent life or death decision to accept medical treatment has to be made in the face of conflicting religious or other convictions?

Until next time,

Natalia Angelini

*   Director of Child and Family Services v. A.C. [2007] M.J. No. 26.
** Section 25 of the Child and Family Services Act, S.M. 1985-86, c. 8 – Cap. C-80

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The outcome in most types of litigation is pretty simple – you lose, you pay. How much you pay usually depends on various factors, including how the parties conducted themselves during the litigation, whether any offers to settle were exchanged and on what terms.

The unique thing about estate litigation, however, is that historically, regardless of whether you were triumphant or defeated, the estate often bore the expense of the proceeding.

As most estate lawyers already know, however, things are changing. One speaker at the Ontario Bar Association’s 2007 Trusts and Estates conference explained the following trends arising out of more recent court decisions:

• Will Challenge – when unjustified allegations are made against a defendant, the plaintiff may be ordered to pay the defendant’s costs

• Will Interpretation – when a Will does not need interpreting or when its provisions are not unclear, the party requesting its interpretation may be denied its costs

• Dependant Support Claim – successful claimants may have to bear their own costs when the court considers factors (similar to those applied in other litigation) that weigh in favour of such a result

• Passing of Accounts – when executors neglect or refuse to furnish accounts, fail to keep proper records or mismanage estate funds, they may be ordered to pay the costs of the successful beneficiaries

I am pleased to see such modifications to traditional cost principles, as in my view it will deter unfounded litigation being brought by those mistakenly of the view that the estate will foot the bill.

Until tomorrow,

Natalia Angelini

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In less than 25 years all boomers who are still alive will be senior citizens. That’s just one of the noteworthy statistics about Canada’s population cited in the Winter 2007 issue of LawPRO’s magazine, which is largely devoted to addressing the practice implications for lawyers of older clients.*

LawPRO wisely cautions estate planning solicitors to keep the following in mind:

• Demand for legal services is on the rise – this will continue to increase as boomers inherit the wealth of their parents (being Depression babies, possibly the richest group in Canada);
• The legal arena is more complex - keeping abreast of changes made by the legislature and the courts, and being well-versed in numerous practice areas (such as family law, real estate and wills and estates) will better equip lawyers to advise the elderly and their families; and
• More litigation is predicted – the increased wealth at stake is expected to fuel litigation involving issues of capacity, guardianship and powers of attorney.

The days of the “simple will” are long gone. The sobering reality is that we are practicing in a time where the estates are bigger, clients are more sophisticated, the law is multifaceted and expectations are higher.

A word of caution to fellow lawyers - be careful and be diligent.

Until tomorrow,

Natalia Angelini

* For other comments on this issue I recommend you visit Bar-ex, a virtual legal resource centre.

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Entertainment media has recently focused its eye on the death of celebrity pop-icon, Anna Nicole Smith. In one of last week’s blog entries Megan Connolly commented on the estate litigation left in her wake.

Today I wish to discuss another personality whose death has made headlines - legendary soul singer, James Brown.

Brown sadly died of heart failure on December 25, 2006. Although it has been almost eight weeks since his death, his body has yet to be buried. This is reportedly due to a dispute between relatives and his former partner, Tommie Rae Hynie over burial procedures and rights to the assets of the estate.

Brown's Will excludes Hynie and their 5-year-old son. Hynie maintains that she is Brown’s widow and ought to receive half of his estate. Brown’s attorneys claim that the marriage was not official because Hynie was married to another man at the time.

If Brown and Hynie’s marriage is not ultimately recognized, she may be awarded nothing from the estate. Their son, on the other hand, will most likely be entitled to share in the portion of the estate gifted to Brown’s other six children.

It will be interesting to see how and when this dispute resolves itself so that Brown can at long last receive a proper burial. Until then, as the National Post reports, Brown’s body will be held in a temporary crypt in an undisclosed location.

Until tomorrow,

Natalia Angelini

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Listen to "Tips for Hiring an Estate Lawyer"

Read the Transcribed Version of "Tips for Hiring an Estate Lawyer"

During Hull on Estate and Succession Planning Episode #48, Ian Hull and Suzana Popovic-Montag speak with Jordan Atin, co-author of a recently published book on avoiding Estate litigation, The Family War. The three succession planning experts discuss considerations when hiring an estate lawyer to draft your will. 

The necessary processes are reviewed including getting a referral, answering questions regarding your specific needs and assets, full disclosure, confidentiality and finally the importance of reviewing and signing your completed will. 

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Listen to "The Two Sides of Transferring a Cottage to your Children

Read the Transcribed Version "The Two Sides of Transferring a Cottage to your Children"

During Hull on Estates Podcast #47, Justin de Vries and Megan Connolly  focus on the case of Rose v. Rose wherein a family breakdown and the transfer of assets into a irrevocable trust leads to litigation. 

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I had recently decided to focus my litigation practice on estate matters, and was fortunate enough to join Hull & Hull LLP, an estate litigation boutique.

While I expected to be engrossed full time in handling the estate battles of our clients, what I didn’t anticipate was the almost immediate interest I would develop in the estate plans of those near and dear to me. I have caught myself on several occasions querying family and friends about this issue, keenly interested to determine just how many people are planning ahead.

I was relieved to discover that most of those I questioned who are spouses and/or parents have a Will in place. Of some concern, however, is that several of these individuals admitted to not having reviewed their Will since they signed it. So I thought it might be helpful to send out this reminder of at least ten occasions when you ought to do so, also referenced in Barry Fish and Les Kotzer’s book, The Family Fight – Planning to avoid it:

1.   Marriage or re-marriage
2.   Divorce
3.   Separation
4.   Birth of children
5.   Birth of grandchildren
6.   Incapacity or death of a beneficiary named in your Will
7.   Incapacity, frailty or death of your executor
8.   Loss of trust or confidence in your executor
9.   Sale, loss of, or damage to an item gifted in your Will
10. Move to a new Province

Until tomorrow,

Natalia Angelini

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There are numerous situations where money might become payable to a minor child. For example, the child may be the beneficiary under a Will, RRSP, or insurance policy. Alternatively, he or she may have received funds through a court Order or settlement.

You might be surprised to know that in Ontario, while a parent is automatically his or her child’s guardian of the person, he or she is not automatically the child’s guardian of property. The only way for a parent to receive this authority is by statute, court Order, or other document, such as a Will.

Although the Office of the Children’s Lawyer  represents minor children in property rights cases, it does not have the authority to act as guardian of property for minors. This means that unless a parent or guardian obtains the legal authority to receive funds for a child, then money to which the child becomes entitled will have to be paid into court and held by the Accountant of the Superior Court of Justice until the minor reaches eighteen years of age.

If money has been paid into court, the parent will have to apply to be appointed the minor’s guardian of property in order to withdraw it. Alternatively, if the funds are required for the direct benefit of the child, and the parent cannot afford the expense, the Office of the Children’s Lawyer has a procedure to request payments out of court.

For more information about the guardianship of property of minor children, you will find the information on the Ministry of the Attorney General’s website to be of use.

I hope you enjoyed my blogs this week. Have a great weekend!

Megan Connolly

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Those of you who are familiar with Hull & Hull LLP will be aware that we practice in the area of estate litigation. Part of my own work includes acting as junior counsel for LawPRO, the insurer of lawyers in Ontario.

With that in mind, I found the article by Deborah Petch, “Wills and Estate law: Claims slowly on the increase” in the Winter 2007 edition of LawPRO’s magazine to be very interesting.

Over the past five years, wills and estates related claims accounted for approximately 6% of the claims that LawPRO received and it cost the insurer an average of $34,404 to resolve a claim.

The most common errors to give rise to claims are:

• Lawyer/client communication failures (e.g. failure to follow a client’s instructions);
  Inadequate discovery of facts or inadequate investigation (e.g. an inadequate inquiry into the testator’s mental capacity);
• Failure to know or properly apply the law (e.g. drafting a complex will when the lawyer doesn’t have the necessary expertise);
• Time and deadline-errors (e.g. missing the deadline for bringing a dependant’s relief claim);
  Conflicts of interest (e.g. doing extensive work for many members of a family and attempting to act for one member on an estates matter; and
• Clerical/delegation
  

While claims might be on the rise, concerned lawyers can take comfort in the fact that LawPRO has a very good record of settling them. Approximately 85% of the wills and estates claims received are closed without any indemnity payments.

Have a great day!

Megan Connolly

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The recent decision of Boyd v. Thomson, [2006] O.J. No. 4796 (Ont. SCJ) examined section 69(6) of the Substitute Decisions Act, 1992 , which requires that someone bringing a court application to be appointed guardian serve certain family members of the incapable person.

The case involved a guardianship application under s. 22 of the SDA by a man whose wife had suffered brain damage in a car accident.

Although he had consulted with his wife's parents and siblings and they consented to the application, the applicant did not want them to serve the application materials because it would result in the disclosure of financial and other personal information and he and his wife and had always been very private people. The woman's parents and siblings were fine with not reviewing or being served with the application record, and had filed consents to the application stating as much. They had also been provided with a notice of the hearing and chose not to attend.

The Public Guardian and Trustee took the position that s. 69(6) of the Substitute Decisions Act made service on certain family members mandatory. Section 69(6) provides that the notice and accompanying documents shall be served on, amongst others, the allegedly incapable person’s parents and any siblings who have reached age of majority.

The court considered whether the word “shall”, as it appeared in the section, should be interpreted as being mandatory or permissive and, in any event, whether the recipient of the documents can waive service.

Here, the court found that the right to service in order to give adequate notice to the family members belongs to the family members, not to the incapable person. Since it is the right of the family members, then it is open to them to waive their right to service. Any consent to a waiver of this type should be given effect by the court.

Have a great day!

Megan Connolly

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During Hull on Estates Podcast #46, Ian and Suzana discuss the concept of causation and how it relates to estate matters.

Referring to the texts of Jackson and Powell on Professional Negligence  and Black's Law Dictionary, negligence claims, the standard and duty of care and the question of onus are considered.

The cases of Haag v. Marshall in the British Columbia Court of Appeal, Sykes v. Midland Bank [1971] 1 Q.B. 113 and Major v. Buchanan (1975), 9 O.R. (2nd) 491 at 514, 61 D.L.R. (3rd) 46 (H.C.) are also examined.

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During Hull on Estate and Succession Planning Episode #47, Ian and Suzana review four possible flash points to keep in mind when dealing with family law issues. These topics include the family business, the matrimonial home, the treatment of debt and the domestic and family contract.

Ian and Suzana specifically discuss the legal effects of the domestic and family contract upon death and support considerations reviewing the Succession Law Reform Act, Section 62 and 63.

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Last week, the Globe and Mail published an article on RRSP Myths, which is a timely subject with the deadline for contributions fast approaching. It dealt briefly with the taxation of an RRSP on the death of its holder.

The general rule is that, upon death, the holder is deemed to have withdrawn all the funds in the RRSP as at the date of death and will be taxed on the entire amount. This means that, generally speaking, the estate of the holder will pay the taxes, not the beneficiary of the RRSP.

The value of the RRSP is required to be reported on the deceased’s terminal tax return as part of his or her income in the year preceding death. Depending on the RRSP’s value and the total income of the deceased in that year, the proceeds of the RRSP might end up being taxed at the highest marginal value.

There are some circumstances where the estate will not be required to pay taxes on the RRSP:

• If the beneficiary of the RRSP is the spouse or common law partner of the deceased, then the RRSP funds can be transferred to his or her RRSP or RRIF, or they can be used to purchase an annuity.
• If the beneficiary of the RRSP is a financially dependant child or grandchild under the age of eighteen, the funds can be transferred to him or her to purchase an annuity. If the beneficiary is a financially dependant, mentally or physically infirm, child or grandchild of any age then the funds can be used to purchase an annuity or transferred to his or her RRSP or RRIF.

Another option is to designate a charity as the beneficiary. While the estate will still be liable to pay taxes on the value of the RRSP, it will be eligible for a tax credit, the effect of which is normally to offset the tax on the distribution.

For more information on these issues, check out the CRA Information sheet on the Death of an RRSP Annuitant.

Have a great day!

Megan Connolly

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February 8, 2007 saw the death of former reality t.v. star, Anna Nicole Smith. Anna Nicole first came to the public's attention when she was Playboy Magazine's Playmate of the Year in 1993.

She also gained notoriety from her marriage to J. Howard Marshall, the Texas oil billionaire. The two met in 1991 when she worked as a dancer in a strip club that he frequented. They were married in June  1994 at a drive-in wedding chapel in Houston. She was 26 and he was 89. Sadly, their marriage was not long lasting. Howard died of heart failure just 14 months after the wedding.

After Howard's death, Anna Nicole was distressed to learn that she had been excluded from his Will, which he had updated shortly after their marriage. She claimed that he orally promised to give her half of his estate if she married him. Not surprisingly, his son Pierce, who was left the bulk of the estate, disputed this. Anna Nicole then accused Pierce of interfering with the gifts she was supposed to receive, improperly influencing his father, fraudulently altering trust documents, and a host of other things. For his part, Pierce took the position that she was a greedy gold digger who wasn't entitled to anything. Needless to say, litigation ensued and, more than a decade later, is still continuing.

The legal reasons associated with the length of the litigation are somewhat complicated: there has been significant wrangling over whether the matter properly belongs in federal or state court. In 2006, the United States Supreme Court said it should be pursued in federal court, where the dispute continues to this day.

The strained relationship between Anna Nicole and her late-husband's son also seems to have played a role in the length of the dispute. Pierce made it clear from the outset that, to him, it wasn't just about the money; it was about ensuring that she was left with nothing.

Although Anna Nicole's lawyers reportedly tried to settle the case on numerous occasions, Pierce was more than happy to spend as much money as it took to keep his father's estate out of her hands.
It will be interesting to see what happens with the proceeding next.

Pierce died in 2006 and now, with the death of Anna Nicole, it will be up to their estates to carry on the litigation.

Thanks for reading!
Megan Connolly

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Last week the Globe and Mail reported on a $1.5 billion lawsuit launched against Barry Sherman, the founder of Apotex, and a trust company. The case offers an opportunity to question the duties of disclosure to beneficiaries.

The claimants are the beneficiaries of their deceased father’s estate. Their father died in 1965 and his estate was administered by the trust company. In 1999, the claimants learned that the trust company had sold one of their father’s corporations to Mr. Sherman in the late 1960s. The claimants later learned that the sale included terms that they were to be given an opportunity to work at the company upon turning 21 and the option of purchasing 5% of the company after 2 years of employment. These terms were subject to some important conditions, including that the company remain under control by Mr. Sherman.

However, Mr. Sherman sold the company in 1972 for a sizable profit.

The claimants now allege that Mr. Sherman and the trust company are liable for not advising them of the terms of the agreement, among other things.

An interesting catch is that the trust company passed its accounts in 1993 and no objections were raised at that time.

At issue in this case will be the trust company’s obligations to disclose all details about its dealings with estate assets, even when the information has not been requested, either at the time or when the accounts are passed.

Thanks for reading.

Jason Allan

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A recent decision of the Alberta Court of Queen’s Bench offers an interesting look at the use of the resulting trust.

In Miller v. Gillman, a mother advanced substantial sums of money to her daughter and son-in-law over a period of time. The daughter and son-in-law used the mother’s money, in part, to purchase and develop a large parcel of land.

Title to the property was taken by the daughter and son-in-law in their names alone. It was subdivided and the mother lived in a home on one of the lots for 13 years.

The son-and-law and daughter separated and a dispute arose as to the mother’s ownership interest in the property. The mother and daughter argued that there was an informal, unwritten agreement that in exchange for her financial contribution, the mother would have an ownership interest in the property. The son-in-law denied the existence of any such agreement and claimed that the mother had loaned them the money.

Over a 13 year period, the son-in-law and daughter had made some repayment to the mother but the court accepted the mother and daughter’s evidence that repayments pertained to other loans the mother had made, and not the funds used to purchase the property.

The court placed a great deal of weight on a written note the son-in-law and daughter gave to the mother before they left on a vacation. In the note, the son-in-law and daughter acknowledge the mother’s interest in the property. The son-in-law claimed that the note was only meant to be in effect while they were on vacation.

The court didn’t buy the son-in-law’s explanation and awarded the mother an ownership interest in the property on the basis of a resulting trust.

Have a nice day.

Jason Allan

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Yesterday, I attended the Trusts and Estates conference at the Ontario Bar Association’s 2007 Annual Institute of Continuing Legal Education. The conference was entitled, “Gone…But Not Forgotten.” Hull and Hull LLP’s Craig Vander Zee co-chaired the event, which featured lectures presented by leading practitioners in estate law.

As the title of the conference may suggest, topics included geriatric care, consent and capacity matters, guardianship issues, estate planning techniques, as well as developments in the law of trusts and trustee liability, solicitor’s negligence and charity law.

Two of the lecturers offered an interesting discussion on the various ways the family cottage may be transferred from parents to children and the estate planning implications of each technique.

One particularly interesting practice that was discussed is the use of a co-ownership agreement.

Essentially, a co-ownership agreement allows parents and children to amicably share the family cottage during the parents’ lifetimes, and also creates a structure for the future use of the cottage after the parents pass away. While co-ownership agreements are not without problems, if drafted correctly, they may address certain issues that typically arise with family cottages; namely, tax implications, the cost of repairs and maintenance,  who gets to use the cottage and most importantly, when. These issues and are often the subject of family battles and can result in litigation.

Whether a co-ownership agreement is appropriate depends on the circumstances of the estate in question. There are many other estate planning tools available for transferring the family cottage, which have their own advantages.

Thanks for reading.

Jason

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Joint accounts are a common tool in estate planning. Where accounts are held by two individuals jointly, both hold an equal and undivided share. When one dies, their interest terminates, and the surviving joint owner is left with the entire account. This results in numerous benefits from an estate planning perspective. However, it often also results in numerous lawsuits. The latest issue of Law Times includes an article which considers the controversial subject of joint accounts.

In “Awaiting Certainty on Jointly Held Assets,” Christopher Guly considers the debate over how to adjudicate challenges to jointly held accounts. He examines two decisions of the Ontario Court of Appeal, Saylor v. Brooks and Pecore v. Pecore. Both were recently heard by the Supreme Court of Canada.

The facts in Saylor and Pecore are somewhat similar in that both involve challenges brought by beneficiaries to accounts that were jointly held between a Deceased and his daughter. In both cases, the beneficiaries argued that the Deceased did not intend for the surviving daughter to acquire the entire account and that the funds should be returned to the Deceased’s estate.

In considering the beneficiaries’ claims, the Court diverged from the historic reliance on presumptions. In the past, a transfer of money or property between strangers was presumed to be a loan, while a transfer between a father and his wife and/or children was a presumed gift. Of course, the presumptions only operated as starting points and were rebuttable.

In Saylor and Pecore, the Court ruled that it must first consider the totality of the evidence and determine the intention of the Deceased at the time the joint account was created. Only if intention cannot be clearly determined will the Court then turn to the presumptions.

Sounds simple? Well, as Guly points out by reference to discussions with practitioners, including Ian Hull, the decisions raise numerous concerns. Namely, what evidence do you use to prove intention? What if you do not have available evidence? How much evidence is necessary to avoid the presumption?

I will be interested in reading the Supreme Court’s answers to these difficult questions.

For more background information on legal issues surrounding joint accounts, check out Ian and Suzana’s previous blogs found in the "Joint Accounts" category on the blogpage.

Thanks for reading.

Jason 

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During Hull on Estate and Succession Planning Episode #46, Ian and Suzana discuss various family law topics which facilitate the creation of a successful estate plan. They focus on "Sweetheart Wills", property analysis, constructive trusts, and the importance of transparency and dialogue especially when dealing with blended families.

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Listen to "The Use of Contempt Procedures in Estate Matters"

Read the transcribed version of "The Use of Contempt Procedures in Estate Matters"

During Hull on Estates Episode #45, Sean Graham and Paul Trudelle discuss the use of contempt procedures in estate matters. They reviewed Rule 60.11 of the Rules of Civil Procedure and focused on the failure of Estate Trustees to produce accounts and the resort to the contempt mechanisms in order to compel their production.

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Like many North Americans, I invested a large part of my Sunday evening taking in Super Bowl XLI. While I enjoyed watching the game, as usual, the off-field circus surrounding the event proved just as fascinating as the big game itself.

This year I was particularly struck by how Super Bowl advertisements have merged traditional and non-traditional forms of advertising. With the rise of Internet videos, blogs, and online file sharing, some have suggested that the medium of television may be obsolescent technology. Well, in my opinion, Super Bowl advertisements are but one more example that this is not the case.

Super Bowl advertisements demonstrate the extent to which television and the Internet can function symbiotically. Snickers’ new advertisement is an excellent example. In the weeks before the Super Bowl, Snickers posted four versions of a commercial on their website.  Visitors were offered the chance to view the commercials and vote online for their top choice, which then ran as a Super Bowl commercial. I’ll avoid the obvious pun about how it can be satisfying to choose your own commercial.

The massive interest in Super Bowl ads is also reflected in the online content dedicated to Super Bowl ads. Thanks to CBS Sports Line, new ads were posted online quarter-by-quarter, as if they were highlights. Those ads that don’t make the CBS highlight list will be posted on AOL, iFilm , Google Video , and YouTube where they can be replayed ad infinitum. Not to mention the many other blogs out there that will be devoting content to reviewing the best ads of the night.

I guess we are not in the last quarter of television after all.

Jason Allan

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A recent case out of England has led to an interesting twist on testamentary capacity. In Sharp v. Adam [2006] EWCA 449, the English Court of Appeal upheld the trial judge’s ruling that the unexplained exclusion of the testator’s daughters from his Will, together with evidence of brain deterioration (due to Multiple Sclerosis), was enough to set aside the Will on the basis of incapacity. This was despite evidence that the testator was able to communicate effectively by blinking and using a spelling board, and his experienced solicitor and family doctor were present when the Will was signed and had concluded that the testator had the requisite capacity.

In essence, the case turned on the lack of an explanation for why the testator had excluded his daughters. There was no evidence of undue influence by the named beneficiaries or of any problems with the daughters. While the Court of Appeal accepted that the testator’s ‘cognitive ability’ was satisfactory to make the Will, his ‘mood’ was not. In excluding his daughters inexplicably from his Will, the Court concluded that the testator’s ‘mood’ was so affected by his MS that this deprived him of the requisite testamentary capacity. This arguably raises the threshold for establishing testamentary capacity. A challenger to a Will may now be able to convince a court to set a Will aside on the basis that the testator’s mood was impaired, even if his/her cognitive abilities remained intact.

Have a great day!

Bianca La Neve

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