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 2009 federal Budget contains a few items relevant to Estates, particularly with respect to Registered Retirement Savings Plans (“RRSPs”). 

For a thorough review please see the 343-page document.  A Bloc Quebecois amendment to the Budget yesterday evening was defeated; Opposition Party amendments have yet to occur.  Budget speech to approval of the Budget motion could take up to four days.

While there are benefits for first-time home buyers in the Budget, and a host of infrastructure investments, not everyone is happy. Other media view the bad-time Budget as possibly providing the boost we need.

Regarding Estates, the Budget proposes that certain losses now be applied against terminal income – see page 318 of the Budget. The fair market value of investments held in an RRSP at the time of an RRSP annuitant’s death is generally included in the deceased’s income for the year of death. A subsequent increase in the value of the RRSP investments is generally included in the income of the RRSP beneficiaries upon distribution.

Similar rules apply in the case of Registered Retirement Income Funds (RRIFs). 

There is, however, no existing income tax provision to recognize a decrease in the value of RRSP or RRIF investments that occurs after the annuitant’s death and before they are distributed to beneficiaries.

Budget 2009 proposes to allow, upon the final distribution of property from a deceased annuitant’s RRSP or RRIF, the amount of post-death decreases in value of the RRSP or RRIF to be carried back and deducted against the year-of-death RRSP/RRIF income inclusion. The amount that may be carried back will generally be calculated as the difference between the amount in respect of the RRSP or RRIF included in the income of the annuitant as a result of his or her death and the total of all amounts paid out of the RRSP or RRIF after the death of the annuitant.

Assuming the Budget motion passes, this measure will apply in respect of deceased annuitants’ RRSPs or RRIFs where the final distribution from the RRSP or RRIF occurs after 2008.

This change, especially in this uncertain economy, might help to make a weak financial situation a bit more palatable.

Thank you for reading our blogs this week.  Enjoy your weekend. 

Jonathan

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Hull & Hull LLP will be posting a 'health series' on our blog platform starting on Monday February 2nd.  The series will run every Monday in the month of February, for a total of four blogs.  As a nod to those subscribers who are estates and trusts practitioners, as well as to those subscribers who are clients of the same, the following subjects will be featured:

• Strokes; an overview
• Delirium vs. dementia; a quick reference guide
• The Mini-Mental Status Examination
• Mental illness

We hope this series proves both useful and informative.  Please feel free to contact us at nonley@hullandhull.com with your feedback.

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What does an executor do?

The first responsibility is to tend to funeral arrangements and then to gather up all the information relevant to the Estate. This information includes the ownership and value of assets, as well as the nature of all Estate liabilities. These responsibilities need to be taken seriously. 

Some other duties include: make provisions for dependants; notify various government agencies of the deceased's death; collect income from assets; decide about investments; seek advice as required.  The executor’s role is similar to that of a trustee: both owe a duty to the beneficiaries. 

When one plans his or her Estate and prepares a Will, it is useful to consider the attributes of a successful executor.  Some questions might be:

• Is the person organized?
• Does the person have financial skills? 
• What is the demeanour of the person who is being considered as an executor?

A recent British article asks more questions. One point, among many, is that “Honesty and conscientiousness are important, but if you are appointing more than one executor - and often that's a good idea - they also need to be team players.” 

Each situation is different but the hard and soft skills of a potential executor are likely useful considerations.

Examples abound to illustrate what might go awry. Take the Estate of the renowned violinist, Isaac Stern. In 2004, the beneficiaries of the Estate were disappointed when the executor failed to include the value of the deceased's  New York apartment in the calculation of the Estate's value. This decision resulted in a shortfall of funds to meet the Estate’s liabilities. Legacy items, including musical instruments, were apparently sold at auction to the beneficiaries' collective dismay.

Choose your executor(s) wisely.

Enjoy your Thursday.

Jonathan Morse

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Listen to Shareholders agreements in the context of an estate plan

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss what a shareholders agreement is and how that can be an important tool in the context of an estate plan. They focus on the fact that the efforts to create a shareholders agreement forces the family to consider what they're going to do with the estate plan and where they're going to go forward.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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The British lawyer and author, John Mortimer, died on January 16, 2009. During his 85 years he produced more than 50 novels, biographies and memoirs. Of course he was best known for the creation of Rumpole of the Bailey.

Mr. Mortimer had an active professional life, and by many accounts, an active private life as well. He was first married in 1949: apparently he noticed his first wife while he rode a horse and peered over a hedge.  After divorcing around 1970, he married again in 1972.  Both wives were named Penelope, although he called his second wife Penny.

While the deceased lawyer may have organized his affairs with the requisite estate planning in place, the experience in Canada might suggest that Mr. Mortimer’s Estate will encounter some challenges not least of which may relate to copyright issues.

I refer to Lucy Maud Montgomery who died on April 24, 1942. The creator of Anne of Green Gables left a legacy of work and maybe just a few headaches for her heirs. 

After all the copyright kinks were ironed out, it seems that Anne of Green Gables has a bright future ahead of her.  With luck, and the combined efforts of lawyers and artists, Rumpole will experience similar success and longevity.

Thank you for reading.

Jonathan Morse

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Listen to Compensation paid to guardians of property

This week on Hull and Estates Jonathan Morse and Christopher Graham discuss the topic of guardianship and particularly the compensation that would be paid to the guardians of property. 
They look at legislation, case law and practice notes for guardians and practitioners to keep in mind.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog
 

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Annuities are often employed when an individual plans his or her estate. We have covered different aspects of annuities on past blogs on Hull on Estates.

A testator, for example, may choose to have one child’s portion of the future estate placed into an annuity that will create a flow of money over time. The child would have access to the cash flow, but not necessarily access to the principal amount. 

In September 2008, Gayle Reid applied to the Superior Court of Justice for an interpretation.  The claimant’s father, Bernard Wiesberg, died and left an annuity to his friend, Avonne Richter (also identified as his common-law spouse). Minimum annual payments of the annuity were directed in the Will to Ms. Richter who received them from 2003 through to 2007. 

The Applicant was to receive the residue of her father’s estate.  A 2005 Order by Dandie  J.  required Ms. Richter to designate Ms. Reid as the beneficiary.  (A provision of the Income Tax Act required the beneficiary to be named, otherwise the retirement income fund would have collapsed, defeating the testator's intent.)

The issue arose when Ms. Richter, who received the previous annual annuity payments in arrears up to 2006, chose to take the $17,015.57 payment in January, in advance for that year. Ms. Richter died on April 17, 2007.

The Applicant sought an interpretation of her father’s Will, specifically regarding the annual payments. As the payments were for the “lifetime” of Ms. Richter, the Estate owed $12,027.44 to the Applicant because the Court reasoned that calculations must be made to the date of Ms. Richter’s death. Therefore a pro-rata calculation was “the only reasonable and fair manner to ensure the two gifts in the Will are honoured.”

If the annuity had been paid in arrears that December, Ms. Richter’s Estate would have been owed a pro-rata amount of the annuity for that year calculated to the date of her death.

Have a good day.

Jonathan

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My mother used to volunteer with Goodwill, where one of the projects was a contents sale. A team from Goodwill would organize a home’s contents for sale – I have a frying pan purchased from one of those sales.

Several organizations exist to assist with different aspects of the moving process. One such example is Marsha’s Helping Hand, which helps when clients, particularly elderly people, want to downsize.   

There are a lot of memories to manage and items to be packed up, distributed or possibly sold. Often the house itself must be sold. Many scenarios are possible – elderly people are downsizing or a home is being sold as part of an estate. 

Estate sales can be slow however.  Recently, the New York Times focused on this issue: delays can occur in transactions because of the dynamics between distant beneficiaries and the estate trustee, or even because of the emotional energy required by heirs who are assisting with the removal of the Deceased’s belongings. 

There are understandable reasons for the delays in the estate sale process. Not least of which is that often the people who want to do the job are themselves busy with multiple responsibilities, be it child care or parent care or the demands of a paying job. Help is available though.  Organizations, which cater to these increasing needs can assist, according to a recent Globe and Mail article.

These practical issues often dovetail with legal duties of the Estate Trustee, a role that may be more manageable when a plan is in place. Costs should always be considered though because ultimately, the Trustee has a duty to account to beneficiaries.

Enjoy your day.

Jonathan

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The recent decision in Mohammed v. Heera involved a dispute over who had the right to be appointed as the estate trustee of the Deceased’s estate. 

The Deceased died intestate and was survived by adult children, a minor grandchild, and an individual who the court determined to be the Deceased’s conjugal partner. 

The conjugal partner took the position that the court should give her priority when determining who should be appointed as executor.  (Interestingly, the partner did not actually intend to apply to be executor as she intended to bring a claim against the estate for support.  Instead she wanted the court to allow her to nominate someone to act in her stead).    

In determining who had first right to be appointed as estate trustee, the court considered s. 29(1) of the Estates Act which provides that when an individual dies intestate, the court can appoint as executor (a) the person to whom the Deceased was married or with whom the Deceased was in a common law relations; (b) the Deceased’s next of kin; or (c) the Deceased’s next of kin and spouse/conjugal partner. 

The court noted that there was little jurisprudence or commentary that indicated that s. 29(1) created a priority system with respect to who should be appointed as an executor in the case of an intestacy. 

It held that while it might well be the usual practice for the court to give a spouse priority when determining who should administer an intestate’s estate, it was not bound to do so.  Moreover, the court referred to s. 29(3) of the Estates Act which provided the court with the ultimate discretion to appoint an executor in the case of an intestacy and decided that finding a priority system existed would unduly constrain the court’s role and detract from its parens patriae jurisdiction. 

Have a great weekend!

Megan F. Connolly 

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Listen to Fundamental business concepts that impact estate planning

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss some of the fundamental business concepts that impact estate planning. They also talk about the need to disclose and why that is important, using the illustration of the use of shareholders agreements.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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I came across a recent article in the Globe and Mail detailing a fight in Quebec between a common law couple over spousal support. 

The case involves a woman who is seeking alimony from her (former) common law partner.  The article does not mention how long the couple was together (and Quebec privacy laws prevent their names from being mentioned); however, the relationship was sufficiently longstanding that they had three children together. 

The woman is currently receiving child support for the children, but is also seeking support for herself. 

In Ontario, the Family Law Act provides that spousal support is available both the partners in a marriage and in a common law relationship.  However, the Quebec Civil Code is not so generous.  Instead, it provides that, in the case of a common law relationship, a partner can claim for child support but not for support for him/herself (this differs from the Code’s treatment of a married couple in that a married spouse can claim support).

An interesting twist to this case is the money involved.  Although the article doesn’t specify how much the male partner is worth it appears to be quite a bit – the female partner is currently receiving $35,000/month in child support; is asking $56,000/month for herself; and, in addition, is seeking a lump sum of $50 million. 

The case might go on for quite awhile; the female isn’t hurting for a funding mechanism for the litigation.  A wealthy benefactor is paying her legal fees and has pledged to continue doing so.  To date, he estimates he’s paid $1.2 million in legals and the fight between the former partners shows no sign of ending….

Have a great day,

Megan F. Connolly 

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In November 2007, David Smith and I podcasted on the Ontario Superior Court of Justice’s decision in Belvedere v. Brittain, a case involving a constructive trust claim against an estate by a Deceased’s common law spouse. 

At the time of the podcast, the decision was under appeal and I notice that earlier this month the Ontario Court of Appeal released its decision. 

Belvedere v. Brittain, involves an unmarried couple who cohabitated together for 23 months.  At one point, Mr. Brittain expressed the intention to leave Ms. Belvedere his RRSPs, but never made arrangements to do so.  On his death, Ms. Belvedere sued his estate, claiming for, amongst other things, a declaration that the RRSPs were held on a constructive trust for her benefit. 

At trial, the court allowed her claim on the basis that Mr. Brittain clearly intended that Ms. Belvedere receive his RRSPs; that, while they were cohabitating, Mr. Brittain was clearly enriched by the services provided by Ms. Belvedere; that Ms. Belvedere gave up active work as a result of her relationship with Mr. Brittain; that Mr. Brittain’s death had a “disproportionate emotional response” as a result of Mr. Brittain’s death; and that there was no juristic reason for Mr. Brittain’s enrichment. 

The trustee appealed the trial decision.  In allowing the appeal, the Court of Appeal found that, contrary to the trial judge’s conclusion, Ms. Belvedere did not suffer deprivation which exceeded the lifestyle she enjoyed.  While Mr. Brittain benefitted from her care and companionship, she also benefited significantly from the relationship.  Moreover, the court found that the fact that Ms. Belvedere had a “disproportionate emotional response” to Mr. Brittain’s death did not provide a legal basis for a claim in unjust enrichment. 

As a result, the court found that no constructive trust should be imposed.  This case is a good example of the court limiting the use of a trust us a remedy where it determined there was insufficient evidence of uncompensated contributions to Mr. Brittain's assets.  

Have a great day,

Megan F. Connolly    

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Listen to Short-circuiting the frivolous will challenge

This week on Hull on Estates Natalia Angelini and Craig Vander Zee discuss the frivoulous will challenge from the perspective of how you might short-circuit it.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

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The fight over the burial of a slain RCMP officer has finally come to an end. 

In May, and again in June, I blogged about the dispute over the remains of Leo Johnston, an RCMP officer who was slain along with three other officers in 2005.   

Following his death, Mr. Johnston was buried in his hometown in Alberta.  After his burial, his widow (who was also the executor of his estate) became aware of an RCMP policy allowing his remains to be buried in the RCMP cemetery in Saskatchewan.  She was granted a disinterment permit by the Director of Vital Statistics in Alberta allowing her to move the body; however, Mr. Johnston’s mother objected to the issuance of the permit. 

When the Director declined to rescind the permit, the mother applied to the court for judicial review.  When that was unsuccessful, she appealed to the Court of Appeal; the appeal was dismissed. 

The mother then sought leave to appeal to the Supreme Court of Canada; however, leave was denied in November of this past year.

At the time, the widow said she was going to wait a little bit to move the body in order to give Mr. Johnston’s mother time to come to terms with the news.  Now comes word that at the beginning of January the body was disinterred and moved to Saskatchewan. 

Incidentally, the criminal proceedings surrounding the death of Mr. Johnston and the other three officers appears to be coming to a close.  On Monday, the two men charged in the killings pleaded guilty to manslaughter. 

Thanks for reading,

Megan F. Connolly  

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There are three kinds of lies: lies, damned lies, and statistics. – Benjamin Disraeli, British Politician, (1804-1881)

Have you ever been completely overwhelmed while reading the morning paper? 1 in 6 American men will be diagnosed with prostate cancer during his lifetime (American Cancer Society, October 2008). Studies estimate that CT scans account for as much as 2 percent of all cancers (as reported by Reuters, December 2008). People who sleep less than seven hours a night are three times more likely to develop a cold than people who sleep eight hours or more a night (Carnegie Mellon University, January 2009). Mouthwash linked with increased cancer risk (Australian Dental Journal, January 2009). How are we to interpret and digest all of this information? Data about relative risks and absolute risks – heck, it’s 6:30 a.m. and I’m lucky if I can focus long enough to read the back of the Wheaties box.

According to a January 11, 2009 article in the Sacramento Bee, ‘Risk percentages, drug benefit numbers and survival rates can be manipulated as deftly as a chiropractor cracking a back.’ An article published the same day in the Chicago Tribune cited a group of physicians at Dartmouth Medical School as saying that ‘taking time to understand the often-confusing statistics used in the medical industry, is key to making smarter decisions about your individual healthcare.’

Here are some tips to remember when wading through the 11 o’clock news:

· Differentiate between a lifetime risk and an annual risk. An annual risk is the number diagnosed each year in a population, usually expressed as a number per 1,000 or 100,000 individuals in the population. The lifetime risk is the sum of the risk of developing that disease each year, and thus sounds far more ominous.
· Where possible, re-frame the statistic. Yes, colon cancer strikes 150,000 Americans, but there are 300 million Americans, which means you only really have a 0.05 percent chance. Don’t you feel better already?
· Know your starting risk. If a drug company says their drug will result in 50% fewer deaths, then you need to ask: what was the starting risk of death? As the Chicago Tribune article so beautifully analogized: a 50% off coupon applied to a 50-cent pack of gum reaps different savings than when applied to a $35 turkey. So did you start with the gum or the turkey?
· Check to see if the study involved people similar to you in terms of age, gender, risk factors and family history. While you’re at it, double check to make sure the study referenced human subjects, as opposed to rodents.

Above all, remember that getting a disease does not, by a long shot, mean dying of it.

Intrigued? Try perusing “Know Your Chances: Understanding Health Statistics”, S. Woloshin, L.M. Schwartz, and H.G. Welch, University of California Press, November 2008. My favourite: “Struck By Lightning: The Curious World of Probabilities”, J.S. Rosenthal, HarperCollins Canada, September 2005. 

Jennifer Hartman, Guest Blogger
 

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In many estates, the estate trustee seeks to dispense with the normal requirement of posting an administration bond, if one is in fact necessary. (A bond is usually required where a person dies intestate, where the will does not name an estate trustee, where the will names a foreign estate trustee, or where the application is by a succeeding estate trustee where the will does not name a successor.)

The primary purpose of the bond is to ensure that the estate trustee pays the debts of the estate, and distributes the estate to those who are entitled to it. An applicant that wants to dispense with the bond must satisfy the court that the protection afforded by the bond is not required or will be met in some other way.

Brown J. in the recent decision of Re Henderson, 2008 CanLII 69136 addresses the issue, and highlights the evidence required by the court when determining whether a bond is to be dispensed with. He states that in order to allow the court to properly consider the matter, the applicant should file affidavit evidence setting out:

(a)               The identity of all beneficiaries of the estate;

(b)               The identity of any beneficiary who is a minor or incapable person;

(c)               The value of the interest of any minor or incapable person;

(d)               Executed consents from all sui juris beneficiaries to the appointment and to the dispensation of the bond. If consents cannot be obtained, the applicant must explain how the interests of those beneficiaries will be protected;

(e)               The last occupation of the deceased;

(f)                 Evidence as to whether all debts of the deceased have been paid, including any obligations under support agreements or orders;

(g)               Evidence as to whether the deceased operated a business at the time of death, and if so, whether any debts of that business have been or may be claimed against the estate, and a description of each debt and its amount;

(h)               If all debts of the estate have not been paid, evidence as to the value of the assets of the estate, particulars of each debt (amount and creditor), and an explanation of what arrangements have been made with those creditors to pay their debts and what security the applicant proposes to put in place to protect those creditors.

Thank you for reading.

Paul Trudelle

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This is our final reminder to register for our Breakfast Series presentation scheduled for Thursday January 15, 2009 from 8:30 am to 9:30 am. The presentation is followed by an “Estates Roundtable” discussion from 9:30 am to 10:15 am. The presentation is being held at the Ontario Bar Association facilities at 20 Toronto Street, Toronto. If you can’t attend in person, you can dial in for live audio, or view the presentation from your PC via live webcast.

This Thursday’s presentation will cover the following topics:

• A Trustee's Discretion to Benefit vs. A Guardian's Obligation to Support – By David M. Smith;

• Dependant's Relief: Cummings and Beyond – By Craig Vander Zee; and

• Insolvent Estates – By Ian M. Hull.

Click here to download a registration form or contact Diane Labao at 416.369.1140.

If you can’t attend, call in or watch the webcast, you can view the presentation over the internet at a later date. Check out our website for details. You can also check our website for past seminar presentations.

I hope that you can participate.

Paul Trudelle

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Listen to The Choice of Personal Representative

This week on Hull on Estate and Succession Planning, Ian and Suzana look in more detail at choosing a personal representative and how to minimize tension when doing this.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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Shocking news out of Garden City, New York last week.  It is one of those incredible stories you hear that will either have you rolling on the floor clutching your gut to stave off the laughing-induced cramps, or shaking your head in disbelief at the state of the world today.

Now that my cramps have subsided...

In July 2005, Dawnell Batista filed for divorce from her husband of fifteen years, 49-year old Long Island surgeon, Dr. Richard Batista.  The couple have three children, age eight to fourteen.

In 2001, after his wife had two prior failed kidney transplants, Batista donated one of his kidneys to her, thereby saving her life.  Batista claims that his wife began having an extramarital affair a couple of years after the transplant.

Instead of going after their million dollar home in Massappequa, Batista now wants his estranged wife to return the donated kidney, although he says he'll settle for $1.5 million in compensation.  Divorce lawyers say a donated organ is not a marital asset to be divided.  Further, in the U.S., organs cannot be bought or sold.

Speaking to reporters last week, Batista said, "There is no deeper pain that you can ever express than betrayal from somebody who you loved and devoted your life to."  Perhaps, but I'm guessing that having a donated kidney removed might come pretty close.

Hmmmm.  I'm suddenly having second thoughts about asking for those implants...

Jennifer Hartman, Guest Blogger

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Listen to The decision of Frye vs. Frye

This week on Hull on Estates Ian Hull and Suzana Popovic-Montag look at the decision of Frye vs. Frye, a case that was released in September 2008. It is an important case from a litigation standpoint as well as a state planning standpoint. Their discussion deals with the analysis of what will happen to the family business.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

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Two certainties and a long-shot.

The Toronto Star reported on January 4, 2009 that on the day Donald Peters died, he unknowingly provided financial security for his wife of 59 years, and for their family.

Peters bought two Connecticut Lottery tickets on November 1, 2008. He died of a heart attack later that day. His wife, in her grief, didn’t check the tickets until some time later. In fact, she states that she almost threw them out before checking them. On January 2, 2009, she collected the winning prize of $10,000,000 (U.S.).

Considering this matter from an estate administration angle, a number of potential questions or issues arise.

For example, in Ontario, would Estate Administration Tax (“E.A.T.”) be payable on the winnings under the Estates Administration Tax Act? E.A.T. on $10,000,000 would be approximately $150,000.

E.A.T. under the Act is payable based on the “value of the estate”, the stripped-down definition of which is the value of all the property that belonged to the deceased at the time of his or her death. Presuming the lottery took place after death, the value of the ticket at the date of death would likely be its face value or purchase price. Until the lottery takes place, a $1 ticket is, in most cases, only worth $1. (Believe me, I’ve tried to sell them for more, but my family wouldn’t pay my asking price, no matter how lucky I told them the ticket was.)

However, if the draw was pre-death, but the ticket wasn’t checked until post-death, then one would presume that the winnings would need to be included as property belonging to the deceased at the time of death, and E.A.T. would be payable on the winnings.

Good luck and good health,

Paul Trudelle

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In a recent decision Giacomelli v. Canada (Attorney General), the Ontario Court of Appeal confirmed that an estate cannot continue a claim based on the Charter.

The Deceased was a Canadian citizen of Italian origin who brought a statement of claim against the Government in 2005 for damages relating to his detention at a concentration camp. The Deceased alleged that Canada’s refusal to offer compensation to Italian Canadians while offering compensation to other ethnic minorities was discriminatory and contrary to sections 7 and 15 of the Charter.

The Deceased died in 2006 and his estate trustees obtained an Order to Continue. In 2007, citing Canada (Attorney General) v. Hislop the Government was successful in obtaining a motion varying the Order to Continue so that the Estate could not pursue any claims for relief for Charter based violations. The estate trustees appealed this decision.

The Court of Appeal dismissed the estate trustees’ appeal. Gillese J.A. stated that she was also of the view that Hislop was determinative that an estate cannot continue a claim based on s. 15(1) of the Charter as rights guaranteed by s. 15(1) are personal and end with the death of the affected individual.

Further, Gillese noted that the Supreme Court identified only two exceptions to that principle being, when the individual dies after judgment while an appeal is pending or when the individual dies after the conclusion of argument but before judgment is entered.As these did not apply, the Appeal was dismissed.

Enjoy your weekend,

Diane Vieira

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Those who follow American politics have probably heard of Roland Burris. He is controversial Governor Rod Blagojevich’s choice to replace the Senate seat vacated by President –Elect Barack Obama. While the constitutional debate continues on whether or not Burris can be seated in the Senate, another issue that has grabbed the headlines is Burris’ final resting place.

Burris has commissioned for himself a grand mausoleum consisting of two columns and three tablets referring to himself as a trail blazer and listing all his political and business accomplishments, both minor and major, with room for more to be engraved. The monument, referred to “as his resume in stone” had attracted unfavourable attention from the media and earned Burris the nickname “Tombstone”. Needless to say, it was probably not the effect Burris intended.

While many people include burial instructions in their Will, such instructions are not binding on the estate. The estate trustee has the ultimate responsibility to make burial arrangements. For those who wish to make elaborate arrangements, they should make those instructions clear to the estate trustee and other family members, so that the estate trustee is not criticized for the expense to the estate. Additionally, we can take Burris’ lead and make our own arrangement during our lifetime. Click here to read Paul Trudelle’s paper on estate issues and dealing with the body after death.

Thanks for reading,

Diane Vieira

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Listen to Discussion of the case of Warren and Gilbert from Ontario Reports Dec 26th issue

This week on Hull and Estates, David Smith and Rick Bickhram, discuss the case of Warren and Gilbert from the Dec 26th issue of Ontario Reports. This case is interesting because it touches on procedural substantive issue relevant to both estates practitioners and family law practitioners.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

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Listen to Reasons Why an Estate Plan Can Go Awry

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the reasons why an estate plan can go awry and how to address these issues.
The reasons include the concept of an acrimonious extended family member, intransigent family members, making sure you have properly drafted documents and the choice of your estate trustee or personal representative.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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 Starting last week, any resident of Canada over the age of 18 with a valid social insurance number can open up a tax-free savings account (TFSA) and make a contribution of up to $5,000 a year. Income earned inside a TFSA is not taxable and money can be withdrawn tax-free at any time. Click here to read a National Post article on TFSAs and what type of assets can be held within a TFSA.

When TFSAs were first introduced in the Federal Government’s 2008 budget, there were concerns with how TFSAs would be treated upon the death of the account holder.  TFSAs allow account holders to name a spouse or a common law partner as a “successor account holder” to allow the successor account holder to maintain the TFSA of the deceased without a reduction in their own contributions. Upon death, the value of the TFSA is not included in income but any income that accrues after death is subject to tax.

However, the federal government likely lacks the jurisdiction to give effect to successor account holder designations without also be named in testamentary documents and requiring probate. Beneficiary designations to allow assets to pass outside of probate are within the domain of provincial jurisdiction and the provincial legislation needs to be amended to allow for TFSA designations similar to RRSP beneficiary designations.

Currently, many Ontario financial institutions are providing for both a beneficiary designation and successor account holder be named when a TFSA is opened. The big unanswered question is if probate will be required or if a TFSA is an asset that passes outside of the estate.

Once the issue of beneficiary designations is settled, TFSAs may become another estate planning tool. 

Have a great day,

Diane Vieira

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Wendy Reynolds from Slaw recently posted on a proposed regulatory change to the Rules of Civil Procedure with respect to the duties of expert witnesses. Coming into force in two years, the December 27, 2008 Ontario Gazette lists several amendments to the Rules of Civil Procedure including:

RULE 4.1 DUTY OF EXPERT

Duty of Expert

4.1.01 (1)  It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

Duty Prevails

(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.  

It will be interesting to see what impact, if any, this amendment will have on the duties of expert witnesses. Case law already suggests expert witnesses are already required to report in an independent manner and cannot been seen as an advocating for the party that retains them. The strength of an expert witness comes from their objective evidence and the evidence of an expert witness will be rejected if they are bias.

Does this proposed Rule merely confirm the well established principles of expert evidence as it has developed in case law or does it go beyond establishing the independence of an expert witness? Are we moving towards the use of joint experts to assist the Court? We have a few years to find out.

Thanks for reading,

Diane Vieira

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Happy New Year!

It promises to be an interesting year in estates law with exciting changes headed our way. Under the guidance of the Honourable Mr. Justice Brown, the Estates List Practice Direction is being updated and should be implemented before the end of the year.

The Ontario Bar Association is starting a listserv for Trusts & Estates section members. This email based mailing list will allow members to post questions or share their thoughts with other members. Members can expect an email later this month from the Ontario Bar Association with details on how to subscribe.

The Law Society's new client identification and verification requirements came into force on December 31, 2008. The Law Society is offering a teleseminar on January 13, 2009 to discuss the new requirements and to assist with any questions practitioners may have.

Thanks for reading,

Diane Vieira