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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There were several estate related web postings that came to my attention this week. 

The Elder Abuse Awareness component of the Federal Government's New Horizons for Senior's Program announced 16 new projects directed at the prevention of elder abuse.  Somewhat to my surprise (largely because I assumed it was an area under provincial jurisdiction), the Federal Government has significantly increased funding to this program. 

In Britain, a committee is being charged with the task of considering future changes aimed at preventing the reigning monarch from sealing wills.  Her Royal Highness Queen Elizabeth II directed that the Last Wills of both Princess Margaret and the Queen Mother be sealed, a decision that has been criticized in many quarters.

And lastly, let's not forget the Last Will of George Washington which was drafted by the late President himself with "no professional character being consulted", his Will being an endeavour that "occupied many of my leisure hours."  Clocking in at 23 pages, Washington's Will also had an addendum detailing the location, description and value of his numerous properties (knowledge gleaned from his days as a land surveyor and speculator).

Have a great weekend!

David M. Smith

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The recent England and Wales Court of Appeal decision in Olins v. Walters [2008] EWCA Civ 782 gained some degree of notoriety among British legal observers.  This Mutual Wills case was notable for its clear pronouncement that a constructive trust is impressed on the estate of the first testator to die during the lifetime of the second testator.

Of arguably greater interest was the somewhat remarkable finding of the Judge of first instance ( see [2007] EWHC 3060 (Ch).] on the usually mundane issue of due execution.  One of the witnesses to the Will stated under oath that she was "more than 100 percent sure that she had not witnessed the signature of the deceased on the Will."  Notwithstanding this evidence, the trial judge held that she was honest but mistaken and upheld the Will.

It is not often easy to mess with legal presumptions.  Consider, for instance, the commentary subsequent to the Supreme Court of Canada decision in Pecore v. Pecore which focused on the suggestion that resort to presumptions is made as a "last resort."   While it is tempting to think that the evidence will always rule the day, the trial judge finding in Olins v. Walters (which, curiously, was appealed on the mutual wills issue but not on the finding of due execution) suggests that the presumption of due execution of a Will is particularly entrenched.

David M. Smith

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With the remarkably cold January (and now February) we have experienced, it is sadly inevitable that there may be seniors who fall victim to the elements.  However, a recent web posting regarding a 93 year-old WWII vet who died of hypothermia in his own home after the power was cut off is simply tragic.  The tragedy was compounded by the fact that there was no reason for him to be in arrears on his utility payments: he left an estate of over $500,000. 

Clearly this story raises at least two issues: (i) whether the cutting off of power in the deep of winter can ever be an appropriate remedy for non-payment of bills and (ii) whether this gentleman was in need of assistance from a substitute decision- maker.

Stories such as these should be rare and, thankfully (hopefully?), are.  However, there are many vulnerable seniors who are at risk in the winter months.  For those who are in need, incapable to manage their property or care for their person, and who do not have a Continuing Power of Attorney for Personal Care (and Property), there is doubtless a positive moral obligation for concerned family members to seek guardianship.  Such a step is likely to be perceived as threatening by such a person in need of assistance.  However, in circumstances where lives may be at risk, there may simply be no other option.

David M. Smith

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Listen to Protection For a Trustee Against Personal Liability.

This week on Hull on Estates, Craig Vander Zee and Bianca La Neve discuss protection for a trustee against personal liability. There are a variety of ways that protection is afforded to a trustee against liability, such as exculpatory clauses in trust documents, various provisions of the Trustee Act, passing of accounts, and releases by beneficiaries and/or third parties.

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 The Estate Freeze

This week on Hull and Estate and Succession Planning, Ian and Suzana discuss the estate freeze, what it is and why people would do typically do that in their estates.

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 March 2009 issue of Vanity Fair includes an interesting (albeit cheeky) article entitled "Final-Exit Strategies." Citing such works as Tuesdays with Morrie and The Last Lecture, the article notes the recent prevalence of works of fiction and non-fiction that are written from the perspective of someone contemplating their own imminent demise.  "The Grim Reaper as Life Coach" (one of the numerous tongue-in-cheek observations in the article) may not be the most sensitive assessment of such works but it does contain a kernel of truth: "given that we're all on death row, existentially speaking, finding a good writer to keep us company may be as good as it gets."

It got me thinking about how, for most people, their Will is likely the only document written for an audience to consider after their death.  And its aim is, of course, strictly businesslike: who gets my stuff when I die?  Rarely does one see a Will which pronounces in any way on an individual's personal philosophy or the conveying of life lessons.  But that may be changing.  In a past blog, Paul Trudelle commented on "Ethical Wills" (and see www.ethicalwills.com) which are created for just such a purpose, and Ian Hull and Suzana Popovic-Montag explored this issue in further detail in a podcast. 

Whether the legal profession will be prepared to embrace this broader concept of the purpose of the Will is an open question.  Of course, the odd Holograph Will will contain some candid personal insights that would not otherwise be seen in a lawyer-drawn Will and, it could be argued, stand a better chance of getting published!

David M. Smith

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The Mini-Mental Status Examination (MMSE) is a quantitative measure of cognitive status in adults. Since its creation in 1975, the MMSE has become the most widely used standardized cognitive screening test in both clinical practice and research.

As a screening tool, the MMSE can have limitations, some of which are outlined here:

· Interestingly, the MMSE was never actually designed for diagnosis of dementia; rather it was to be used as ‘a practical method for grading the cognitive state’ (Folstein et al.). As indicated by the team that designed the MMSE (Folstein et al.), in the Journal of Psychiatric Research, the MMSE "does have a number of valuable features for clinical practice even though it cannot carry alone the diagnostic responsibility.”
· Questions have been raised about the use of the MMSE to track cognitive changes over time, specifically, about the clinical relevance of these changes due to the potential for measurement error.
· One’s score on the MMSE is likely to be negatively skewed by a language barrier. Ironically, some patients in the advanced stages of Alzheimer’s Disease often revert to their native tongue, which, if not the English language, would serve to further skew their score.
· Psychological Medicine published a study back in 1982 that showed an increase in false positives amongst hospital patients with fewer than 9 years of education. Conversely, a highly educated person with mild dementia may score within the normal range on the MMSE.
· Studies have also shown that the test is not accurate in older adults who are illiterate.
· The MMSE is not reliable as a screening tool in someone with a learning disability (see reference) or a physical disability that would impair one’s ability to complete the test (e.g. blindness or deafness).
· A paper published in the Journal of Clinical Epidemiology reviewed MMSE results in older Mexican-Americans and found that the MMSE is ‘strongly influenced’ by noncognitive factors including marital status, language of interview and immigrant status.

When the MMSE is misused or applied inappropriately, cognitive deficits may be missed in some patients, while other patients may be misclassified.  However, when applied prudently, and when considered in partnership with additional data (e.g. anecdotal information from family members, or the results of other cognitive tests), the MMSE is both a valuable and valid screening tool for measuring cognitive status.

Jennifer Hartman, Guest Blogger
 

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In a paper recently given by Mark Handelman, he comprehensively reviewed POA for PC, which document, he notes, is more often prepared as an afterthought to the Will and POA for Property package - too frequently granted without serious discussion between lawyer and client and between client and proposed attorneys.

A variety of noteworthy issues are covered in Mr. Handelman’s paper, including the following:

· the requirements of execution (i.e. required age of grantors and attorneys, as well as witness requirements and restrictions);

· when POA for PC become effective;

· revocation of POA for PC (i.e. capacity requirement and method and scope of revocation)

· the two tests (minimum) for a grantor's capacity that lawyers ought to turn their minds to (see the Substitute Decisions Act, s. 45; and Health Care Consent Act, s. 4(1));

· precautions to take when the grantor's capacity to execute a POA for PC is in question;

· special considerations, conditions, restrictions and instructions in POA for PC (i.e. authorizing use of force or restraint to place a grantor for treatment) and special processes for them to be effective; and

· advance directives in POA for PC (i.e. to give or refuse consent to a particular care plan) and the enforcement of same.

If you are interested in reading more on this topic, you can find Mr. Handelman’s paper by contacting the Ontario Bar Association.

Have a great weekend!

Natalia Angelini

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When advancing a dependant support claim, it is important to determine where the deceased person was domiciled[1] at death.

Under the former dependants’ relief legislation (Dependants’ Relief Act, R.S.O. 1970, c. 126) the court could only make orders for dependant support in cases where the deceased died domiciled in Ontario. In contrast, under the Succession Law Reform Act (SLRA), courts in Ontario have the jurisdiction to also make such orders for support where the deceased died domiciled outside of Ontario.

The issue becomes one of jurisdiction – what assets will the Ontario courts have authority over? In brief, the answer appears to be as follows:

-          if the deceased person was not domiciled in Ontario, then the jurisdiction of the Ontario court will be limited to real property/immovables in Ontario;

-          if the deceased was domiciled in Ontario, and a support application was brought in Ontario, the court has jurisdiction to charge the movables of the deceased worldwide; and

-          even if the deceased person was domiciled in Ontario at death, an Ontario court order directing support for a dependant may not be enforced over real property/immovables located outside Ontario, such that the dependant may be forced to bring an application in the jurisdiction where this property is located in order to obtain the relief granted in the Ontario court order.

In Corina Weigl’s paper entitled “Conflicts of Laws in the Context of Dependant’s Relief – A Matter of Domicile”, presented at the Ontario Bar Association 2009 Institute of Continuing Legal Education, she discusses this and other related issues in greater depth. A worthwhile read!

Have a great day,

Natalia Angelini

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Listen to The Decision of Frye vs. Frye.

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the decision of Frye vs. Frye. In this case the court of appeal struggled with two competing documents. This created problems because there was a will issue that did not match up to the shareholders agreement that was created.

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 Succession Law Reform Act permits dependant support claims to be brought by a spouse, sibling, child and parent of a deceased. In order to qualify as a “dependant”, however, a spouse, parent, child or sibling must be someone to whom the deceased: (a) was providing support immediately before death; or (b) was under a legal obligation to provide support immediately before death.

It is noteworthy that the definition of a “child” is not limited to minor children, or even financially dependant children. 

While claims of adult children financially supported at death are clearly recognized by the Courts, it appears that there may be a new type of claimant on the horizon – that of an independent adult child to whom no financial support was being paid immediately prior to death. 

The reason for this change can be linked to the development and application of the concept of the “moral” obligation of a deceased (see Tataryn v. Tataryn Estate and, more recently, Cummings v. Cummings), and the Courts’ interest in protecting spouses and children through applying such principle.

While it is still early days, the reasoning in certain cases subsequent to Cummings (including Juffs v. Investors Group Financial, Broderick v. Papathanasiou and Perilli v. Foley Estate) may foretell that independent adult children will have a better chance of succeeding on a dependant support claim than before. Some factors that may impact on such a claim could include the size of the estate, whether there are other competing support claims, and the intentions of the deceased.   

While claims of independent adults will no doubt remain more tenuous than claims of adult children to whom financial support was being provided at death, it will be interesting to see how the law develops in this regard. For a more comprehensive analysis of this issue, I recommend reading Susan J. Woodley’s paper entitled “The (Almost, Possible, Probable) Right of an Adult Child to Receive Support”, presented at the Ontario Bar Association 2009 Institute of Continuing Legal Education.

Have a great day!

Natalia Angelini

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Listen to Insolvency issue when dealing with estates.

This week on Hull on Estates Ian Hull and Suzana Popovic-Montag discuss insolvency issues and banking issues when dealing with estates now that we are in a more uncertain economy.

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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Delirium and dementia – are they different? Indeed, delirium and dementia are very different and have different diagnostic criteria, although just to muddle the discussion, these syndromes can occur concurrently.

Delirium
The word ‘delirium’ is derived from the Latin term delirare meaning ‘off the track’. Delirium is not a disease, but rather a syndrome that manifests as a change in mental state. It is often referred to as an acute confusional state; ‘acute’, meaning of rapid onset and short duration. According to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and the Canadian Mental Health Association, symptoms include:

· Problems with attention, memory and thinking
· Disturbances in consciousness and perception
· Disorientation to time
· Disruption of the sleep-wake cycle

Delirium is considered a medical emergency and it is important that the cause is investigated thoroughly. Metabolic disorders (e.g. organ failure, diabetes, hyperthyroidism, dehydration and vitamin deficiencies) are the single most prevalent cause of delirium.

Statistics suggest that 15% of older persons admitted to hospital have delirium and over 50% of older persons may develop delirium while in hospital.

Dementia
Dementia is not a specific disease, but rather a clinical syndrome accompanying disorders that affect the brain. Unlike delirium, which occurs over the span of minutes or hours, dementia is a chronic, usually progressive, degenerative and often irreversible decline in mental status. Symptoms of dementia include:

· Loss of memory
· Confusion and disorientation
· Language impairment and problems with judgment and reasoning
· Disruptive and inappropriate behaviour

Dementia is an umbrella term. There are over 100 types of dementia, the most common of which is Alzheimer’s disease, which, according to the Alzheimer Society of Canada, accounts for over 64% of all dementias in Canada. Other related dementias are attributed to Parkinson’s disease, acquired brain injury, Huntington’s disease, multiple strokes, chronic drug use and long-term alcohol abuse.

Initial findings of the study, “Rising Tide: The Impact of Dementia on Canadian Society”  (Alzheimer Society, 2009) indicate that approximately 500,000 Canadians are living with dementia, 71,000 of whom are under the age of 65. The study estimates that within the next five years, an additional 250,000 Canadians could develop Alzheimer’s disease or a related dementia. The number of Canadians with dementia is expected to triple between 1991 and 2031. 
 

Jennifer Hartman, Guest Blogger

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Tomorrow is Valentine’s Day, which means I am about to become the lucky recipient (insert sarcasm here), once again, of ‘subway flowers’. Call me a cynic, but I don’t consider subway flowers to be the hallmark (oooh – good pun) of advanced planning. See, my husband procrastinates. He’s the one frantically scanning the menu when everyone else has already given their order and he’s the guy online on the 24th of December trying to figure out who can guarantee next day delivery. I have to be honest, as someone hardwired for strategic planning, his approach truly unravels my DNA. To me, the 11th hour is the time to bask in the glow of a job completed well ahead of schedule. To him, the 11th hour is the time to put fuel in the tank for the inevitable burst of activity towards the impending finish line. The end results are the same; I just happen to really resent his methods.

He got quite smug with me last week when I came across some information that suggested he had procrastination competition in Leonardo da Vinci, of all people. According to the book “How to Procrastinate” (part of the Self-Hurt series), da Vinci’s prolific output was ‘matched only by his volume of random doodles and meandering sketches’. Apparently, The Last Supper was only finished after his patron threatened to cut off all funds. And Mona Lisa took twenty years to complete. Distractibility appeared to have been the cause of da Vinci’s procrastination. He dillied and dallied about in various fields of study, including math, anatomy, architecture and engineering. Some (the procrastinators in the audience, perhaps) may view this as multitasking; reportedly da Vinci could even paint with one hand and write with the other simultaneously. Others may perceive his widely varied interests as simply a lack of focus.

I chuckled in December when I read an item on CNNhealth.com about StickK.com, a website that offers the ‘Commitment Contract’, a binding promise by a user to stick to a personal goal or face a self-determined financial penalty. According to Yale University economics professor Dean Karlan, “It’s a contract to make slothfulness more expensive.”

Maybe I should just sign my husband up for art lessons instead…

Happy Valentine's!

Jennifer Hartman, Guest Blogger
 

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Listen to How Capacity Can Impact on Efforts to Create a Decision Making Tree

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss how capacity and one's capacity can impact on efforts to create a decision making tree.

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

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 A claim of devastavit may be made against an estate trustee where mismanagement of estate assets is suspected. Black’s Law Dictionary (seventh edition) provides the following definition for devastavit:

A personal representative’s failure to administer a decedent’s estate promptly and properly, especially by spending extravagantly or misapplying assets. A personal representative who commits waste in this way becomes personally liable to those having claims on the assets, such as creditors and beneficiaries.

In the case of Commander Leasing Corp. v. Aiyede, 16 E.T.R. 183 (1984), an estate trustee distributed an estate even though there was an outstanding claim by a company, Commander Leasing, as a creditor of the estate. The estate trustee did not plead that there were no (“plene administravit”) or insufficient (“plene administravit praetor”) assets in the estate to satisfy the company’s claim. Instead, she stated at her discovery that all of the assets had been distributed.

The effect of the estate trustee’s failure to plead plene administravit or plene administravit praeter was that she must be taken to have admitted that there were assets to satisfy the judgment. The Court ultimately held that in distributing the estate, the estate trustee acted in clear disregard of the company's outstanding claim as a creditor. Her conduct constituted a devastavit for which she was personally liable to the company creditor. 

Have a great day!

Bianca La Neve

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A Mareva injunction is a court order that freezes the assets of individuals or companies. It can be obtained without notice to the target individuals and/or companies and can then be extended on notice.

Mareva injunctions are usually employed in civil actions, typically situations involving fraud, where a plaintiff seeks to prevent a defendant from dissipating assets or removing them from the jurisdiction, pending final determination of the plaintiff’s action. 

In Will challenge proceedings, particularly involving large complex estates, a Mareva injunction may be of use in cases where there is a high risk of dissipation or removal of contested assets by one or more parties to the proceedings, thus defeating the purpose of the Will challenge.

A party seeking a Mareva injunction without notice to other affected parties must make out a strong case of dissipation or removal of assets, through sworn evidence. There is also a duty of full and frank disclosure of all material facts and law, given that the affected parties are not able to defend against the injunction at first instance. Finally, the party seeking the injunction must give an undertaking as to damages. That is, the party must undertake to pay damages to the affected parties in the event that it is subsequently determined by a Court that the Mareva injunction should not have been granted. In Ontario, further to Rule 40.02, a Mareva Order obtained without notice is valid for ten days. It can then be extended by a Court, on notice to the affected parties. An affected party, once it receives notice, may immediately move to quash the injunction. 

A Mareva Order may prove a valuable tool in preserving contested estate assets in Will challenge proceedings. 

Have a great day!

Bianca La Neve

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Listen to Tucker and Tucker Estate Will Challenge

This week on Hull on Estates Megan Connolly and Paul Trudelle discuss a decision that was released on January 21, 2009 on the Tucker and Tucker estate, involving a will challenge.
The sole issue was whether or not this particular will was valid.

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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This year’s trusts and estates section of the Institute was held on Tuesday, February 3, 2009. The programme featured a broad and interesting selection of topics by experienced practitioners.

Topics included:

• Estate planning for ‘complex’ families
• Environmental liability issues for trustees, executors, attorneys and guardians
• Family law surprises
• Conflict of laws in cases of multi-jurisdictional families and their assets
• Developments in costs in estates and capacity litigation
• Trustee mistakes
• Rights of adult beneficiaries to receive support
• Capacity assessments
• Power of attorney pitfalls

The programme was informative and insightful and a great opportunity to meet and speak with leading estate practitioners. If you were unable to attend, the seminar materials are available from the Ontario Bar Association.

Have a great day!

Bianca La Neve

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There is a common misconception that strokes are almost formulaic in nature; sort of a one-size-fits-all approach to causes and outcomes. This is actually far from the truth. Here’s a quick anatomy refresher:

Strokes are either ‘ischemic’ in origin (i.e. caused by a blood clot), or ‘hemorrhagic’ (caused by uncontrollable bleeding in the brain). Outcomes of a stroke are dependent on the severity of the stroke and the location of the damage to the brain, both of which can be assessed in an emergency setting using either CT or MRI imaging techniques.

· The cerebrum is divided into the left hemisphere and the right hemisphere. Each hemisphere is divided into portions called ‘lobes’. The effects of a stroke in the cerebrum will be dependent on the lobe(s) affected:

· The frontal lobe is responsible for motor functions and ‘executive functions’, which include reasoning, planning and problem solving, as well as one’s social graces.
· The temporal lobe is involved in speech, memory and auditory perception.
· The parietal lobe is responsible for sensory activities, including receiving and interpreting information from other parts of the body.
· The occipital lobe is located at the back of the head and is responsible for visual processing.

· A stroke that occurs in the cerebellum affects coordination and balance, and often causes dizziness, nausea and vomiting.
· A brain stem stroke, while uncommon, is particularly devastating, since the brain stem controls our involuntary functions such as breathing and heart function, as well as swallowing.

It is important to further differentiate between a stroke and a transient ischemic attack (‘TIA’). A full-blown stroke can certainly be severe enough to render one incapable of making or changing a Will, although some recovery is possible, particularly if formal stroke rehabilitation is actively pursued. In contrast, a transient ischemic attack, as the name suggests, often fully resolves within minutes or hours, although incapacity may still be an issue during the attack. Both a stroke and a TIA are medical emergencies that require assessment and treatment in a medical facility.

Statistics indicate that of every 100 people who suffer a stroke, 10 will recover completely, 15 will die, 25 will recover with a minor impairment and 50 will have a moderate to severe disability, some requiring long term care.

For more information, visit the Heart and Stroke Foundation online.

Jennifer Hartman, Guest Blogger

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Normally, it is the estate trustee who has the authority to deal with the disposition of the deceased’s remains. A deceased’s stated wishes with respect to disposition, including donation, are seen as merely precatory.

However, Ontario’s Trillium Gift of Life Network Actvaries this usual authority, in a number of respects.

Firstly, a deceased’s consent to organ donation is “binding and is full authority for the use of the body…”.

Secondly, where the deceased has not specifically consented to a donation, the Act allows specified persons to consent to the donation of the person’s own body or body parts upon death. A spouse or other family members, in a specific order, are authorized to consent to such a donation if the deceased has not consented during his or her lifetime. One of the persons authorized to consent to the donation is “the person lawfully in possession of the body”. This appears to be a reference to the estate trustee.  However, the estate trustee’s authority to consent is low on the list, after the spouse, children, parents, siblings and other next of kin.

The consent of a spouse or other person listed in the legislation is “binding and full authority” for the use of the body. The legislation therefore appears to make a limited exception to the common law authority of the estate trustee.

Consent is not to be given if it is believed that the deceased would have objected during his or her lifetime, or if the deceased did not consent, if someone higher on the hierarchical list would object.

Have a great weekend.

Paul Trudelle

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Listen to Shareholders Agreements in the Context of an Estate Plan - Part 2

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on shareholders agreements in the context of an estate plan. They discuss the fact that when creating a shareholders agreement we should deal with the day to day governance not the global governance which deals with directors and officers.

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

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Listen to Estate Planning in Uncertain Economic Times

This week on Hull on Estates David Smith and Sarah Hyndman Fitzpatrick talk about estate planning in uncertain economic times. They discuss how the current economic situation has impacted estate planning and litigation and new tools (such as the "Tax Free Savings Account") to consider in creating you estate plan.

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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Someone forwarded me a terrific article from the February 2, 2009 issue of Fortune magazine. In it, Jim Collins, the author of “Built to Last” and “Good to Great”, notes the current economic volatility and uncertainty and states that such instability is in fact “normal”, as contrasted to the relative stability from 1952 to 2000, which he feels was an aberration.

Collins states that in order to succeed in such unstable times, organizations need a fabric of values, of underlying ideals or principles that explain why it was important that they exist. In addition, companies need to understand that it is the calibre of their people that will see them through and allow them to succeed. He gives examples of companies that have used difficult times to beef up their personnel, contrary to the prevailing trends. 

Collins observes that under duress, there is a tendency to “zoom in” on the immediate problem. His counsel is that, rather, we should be “zooming out” and looking at the bigger picture.

Collins gives some employee relations advice along the way. On the topic of staffing, he says that the right people don’t need to be managed. “The moment you feel the need to tightly manage someone, you’ve made a hiring mistake.” “The right people don’t think they have a job: they have responsibilities.”

In the context of estates, death of a loved one can indeed trigger crisis. Similarly, estate litigation can be seen as a time of chaos and despair. Maintaining an ability to “zoom out” and see the bigger picture can not only help us through these tough times, but can also help us use the crisis to grow as humans.

Thank you for reading.

Paul Trudelle

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A eulogy is a speech or writing in praise of a person or thing. The word derives from the Greek (gotta love those Greeks) word “eulogia”, meaning “good” and “words”. Although a eulogy can be used for a living person, it normally refers to a funeral oration, given in tribute to a person who has recently died.

A eulogy can be contrasted with an “elegy”, which is a poem written in tribute to the dead. A eulogy can also be contrasted with an “obituary”, which is a written biography recounting the life of the deceased. However, a eulogy can often cross the line into an elegy or obituary.

As usual, the web has a myriad of resources to help those called upon to prepare a eulogy.

Speech-writers.com offers “a pack of relevant, proven and 100% risk free speeches and or poems for your eulogy”, as well as a 100% immediate refund if you are not satisfied! (It is not clear whether the guarantee extends to the satisfaction of the deceased or other funeral-goers.)

Eulogyspeech.net offers eulogy writing guides, samples, poems, quotes and famous last words, amongst other resources.

Suite101.com has a short by helpful guide to composing and delivering a funeral tribute.

And then there is Eulogy, a 2004 movie starring Hank Azaria, Jesse Bradford, Debra Winger, Ray Romano, Kelly Preston and Rip Torn. Described as a ”black comedy that follows three generations of a family, who come together for the funeral of the patriarch - unveiling a litany of family secrets and covert relationships”, the movie received 6.6 stars out of 10 on IMDB.com.

Thank you for reading.

Paul Trudelle

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The recent Ontario Superior Court of Justice decision of Re Steen Estate addresses the issue of getting funds paid into court pending a determination of ownership.

In that case, the deceased left a will that divided her estate equally amongst her three sons. There was also a prior “Family Agreement” in which the deceased and her three sons agreed that the deceased’s intent was that each of her three sons would receive a one third share of her financial assets upon her death. The agreement went on to provide that all existing accounts of the deceased, whether jointly held or otherwise, would be totalled, and the value divided into three upon the deceased’s death.

The plaintiff, one of the sons of the deceased was also the estate trustee, brought a claim as against the two other sons with respect to jointly held accounts held by the two other sons. It appears that the plaintiff also held a joint account with the deceased as well.

The plaintiff brought a motion requiring the two other sons to pay the monies they held jointly with the deceased into court pending a determination of the issue.

The Court considered the test for having funds paid into court under Rule 45 of Ontario’s Rules of Civil Procedure. The three-pronged test requires that the moving party show:

1.                  That the moving party has a right to a specific fund;

2.                  That there is a serious issue to be tried regarding the moving party’s right to that fund; and

3.                  That the balance of convenience favours granting the relief sought by the party.

The motion was dismissed. The court held that there was no “specific fund” as the joint account with one of the defendants had been transferred into his investment account: the fund no longer existed. There was no evidence with respect to the other joint accounts.

The court also found that there was no “serious issue to be tried”. The intention of the deceased with respect to dividing her estate was clear.

Finally, the court held that the balance of convenience did not favour the plaintiff. The plaintiff only sought that the defendants’ joint accounts be paid into court, and not his own joint account. The court held that it would be “grossly unfair” to require the defendants to pay their joint account funds into court while allowing the plaintiff to hold onto his joint account proceeds.

This last point seems to have resonated with the judge. The court noted at several points in the decision that the plaintiff was not seeking to have his jointly held funds be paid into court as well.

Thank you for reading,

Paul Trudelle

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‘Mental disorders’ (also referred to as ‘psychiatric disorders’) encompass everything from personality disorders (including paranoid disorders, obsessive compulsive disorder and schizophrenia), anxiety disorders, psychosis (including hallucinations and delusions) and mood disorders (including depressive disorders and bipolar disorders). Mental health practitioners use the criteria outlined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) to diagnose mental disorders. Incredibly, the DSM-IV lists two hundred and ninety-seven disorders. According to the 2002 Health Canada Report “A Report on Mental Illnesses in Canada”, one in five Canadians will experience a mental illness in their lifetime. The remaining 80%, of course, will be affected by an illness in a family member, friend or colleague. As reported in “Mental Illness in Canada" (produced by the group Citizens for Mental Health), nearly 1 million Canadians live with a ‘severe and persistent mental illness’. Mental illness is the second leading cause of hospital admissions among those 20-44 years of age and the World Health Organization estimates that by 2020, depression will be the leading cause of disability in developed countries such as ours.

There is no doubt that when one suffers from a mental disorder, there are often questions with regards to their capacity to make decisions on their own behalf, whether those are personal care choices or financial decisions. To further complicate matters, mental health is by no means a static entity. Special challenges are presented, for example, by a mental disorder characterized by ‘episodes’, such as bipolar disorder or schizophrenia. When a loved one attempts to step in to protect their family member, perhaps by attempting to make banking decisions (e.g. freezing a bank account where there is great evidence of poor insight and judgment), there is often a gap between good intentions and strict legal requirements. This is where a Continuing Power of Attorney document could be extraordinarily useful, when applied prudently.

For more information about mental health, please visit the Canadian Mental Health Association at http://www.cmha.ca/bins/index.asp .

Jennifer Hartman, Guest Blogger