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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It's time to "mesh" again!  Canada's leading web conference is being held in Toronto on April 7th and 8th of 2009. 

As many of our readers may already be aware, mesh has proven to be Canada's most exciting, informative and interactive web conference, attracting a host of keynote speakers.  This year Mayor David Miller, Jessica Jackley (co-founder of Kiva.org), Jason Calacanis (founder and CEO of Mahalo.com), Michael Masnick (founder and CEO of Floor64), and Bonin Bough (Global Director of Digital and Social Media at PepsiCo) will be speaking, along with many others.  I understand that the focus this year will be on the Twitter phenomenon and open government.  Mesh provides the opportunity to connect with people who want to know more about how the web and social media are changing "the way we live, work and interact with the world". 

This is a great opportunity to "connect, share and inspire" with others about the web and everything social media can do for you and/or your business.  Learn more about the conference here on YouTube.

Sarah Hyndman Fitzpatrick

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While confessing your sins on your deathbed may seem like a noble gesture, you would be wise to make sure you're actually going to die first.

In a recent story reported in the UK's Independent website, a stroke victim's 'deathbed' confession to a murder proved premature.  James Brewer, a retired factory working living in Oklahoma, confessed to a decades old crime hoping that the confession would clear his conscience and "cleanse his soul" before he died.  During (what he believed to be) the final few moments of his life, he confessed to shooting a man dead in 1977 in Tennessee, while in a jealous rage fuelled by the suspicion that the victim had tried to seduce his wife.  He and his wife then fled to Oklahoma, where they began a new life under assumed names.  By all accounts they led a pretty normal, low profile life and were regular churchgoers and grandparents.

In a ironic twist of fate,  Mr. Brewer made a full recovery from the effects of his stroke after his confession.  He has now surrendered to police in Tennessee and may face the death penalty in that State.  Read further links to this story here and  here.

Sarah Hyndman Fitzpatrick

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Following up on Jennifer Hartman’s excellent blog on Harry Houdini’s life and death, I came across information relating to the proposed exhumation of Harry Houdini.

In March 2007, his grandnephew announced that he was seeking to have Houdini's body exhumed in order to determine the true cause of death. As noted by Jennifer in her blog, Houdini is said to have died accidentally after being punched in the stomach. However, no autopsy was ever performed.

In a 2006 biography, The Secret Life of Houdini, it is suggested that enemies of Houdini, possibly members of the Spiritualist movement, poisoned Houdini because he often debunked their claims of being able to talk to the dead. 

Alas, the proposed exhumation has not (yet) proceeded. It has been said that the plan may have been part of a publicity stunt for the biography.

Have a great weekend.

Paul Trudelle

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This question is considered in the recent decision of Re Balanyk Estate, 2008 CanLII 63161 (Ont. S.C.).

There, the Applicant was successful in resisting a motion to dismiss her claim for dependant support. Costs were awarded to the Applicant, payable out of the estate.

After the motion, the Applicant and her lawyer had a falling out, and an issue arose as to who the costs award was payable to: the Applicant or her lawyer.

Henderson J. found that as a general principal, the costs of a proceeding are payable to the litigant, not the lawyer. Entitlement to costs is based on the principle of indemnity, and costs are awarded to a litigant to indemnify the litigant for monies that she may owe to her lawyer or a third party (although the law of costs has been expanded to allow for costs to unrepresented litigants).

Henderson J. held that any dispute between a litigant and her lawyer should not be dealt with in the main proceeding, but should be dealt with in another manner, such as an assessment.

Having said that the costs belong, prima facie, to the litigant, Henderson J. went on to consider whether the Applicant had contracted out of the general principle. The Applicant had signed an irrevocable direction in favour of the lawyer. However, Henderson J. reviewed the direction and found that it was not sufficiently broad to as to apply to the fact situation. Henderson J. held that if the parties wished to contract out of the general principle that the costs of a proceeding belong to the litigant, they must do so by way of a clear, precise written agreement.

Thank you for reading.

Paul Trudelle

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Listen to Court Proceedings Involving the Substitute Decisions Act and the Health Care Consent Act

This week on Hull on Estates Diane Vieira and Bianca La Neve discuss some issues they've been encountering concerning court proceeding involving the Substitute Decisions Act and the Health Care Consent Act.

They talk about the need for a capacity assessment and who you go to for a capacity assessment, the issue of notice periods and the right of an incapable person in proceedings under the Substitute Decisions Act. 

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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On February 26, 2009, the Canadian Radio-television and Telecommunications Commission (“CRTC”) approved an application for a French-language specialty programming service that would be dedicated to the broadcast of obituary notices, notices of hospitalization and messages of thanks and prayers. The channel, called “Je me souviens”, will also air documentaries on the life of popular or important individuals.

According to a Montreal Gazette report, the station plans to go to air this summer. If it is successfully, the promoter plans to launch an English language channel for the rest of Canada.

The channel will be able to air national ads. The channel will also raise money by charging a fee, as yet undisclosed, for airing the obituaries.

Gerald Dominique, the promoter, says that his channel will give family and friends an opportunity to broadcast more information about their deceased loved ones: more than what can be published in a standard death notice. “My goal is that no death goes unnoticed.”

Thank you for reading.

Paul Trudelle

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Listen to  Managing Disputes That Arise From Second Marriages

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss managing family disputes that arise out of second or third marriage relationships.

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 think that in a year I may retire. I cannot take my money with me when I die and I wish to enjoy it, with my family, while I live. - Harry Houdini, Magician and Escapologist

When I was around 6 or 7 years old, I was unequivocally obsessed with Harry Houdini.  My brother and I used to have contests at the local pool to see which of us could hold our breath the longest. He always won, and I'd end the day a few nickels lighter.

Born Ehrich Weisz on this day in 1874, Harry Houdini emigrated with his family from Budapest to the United States in 1878. As a young man, Houdini’s initial attempts to establish a career in magic were relatively unsuccessful; he even had to double as ‘a Wild Man’ carnival act. Harry met his kindred soul in Beatrice (Bess) Raymond, a teenager trying to succeed in show business as a singer and dancer. They married in 1894. After meeting manager Martin Beck, Houdini found his niche in escape acts: handcuffs, ropes, straitjackets, and chains. His most memorable act was to escape “The Chinese Water Torture Cell” (pictured below). To develop his breath-holding capabilities, Houdini even had an oversized bathtub installed in his house so he could practice regularly.

In the fall of 1926, after having broken his ankle while performing the Chinese Water Torture stunt, and after several sleepless nights caring for Bess after she suffered a bout of food poisoning, Houdini was in his Montreal dressing room chatting with a college student who also happened to be an amateur boxer. The student asked Houdini if it was true that Houdini could withstand any blow to his body above the waist. A weakened Houdini replied yes, and began to rise to his feet, but before he had time to tighten his abdominal muscles, the boxer punched him three times. Houdini suffered a burst appendix, and later, peritonitis. He died on the afternoon of October 31, 1926 at age 52, and was later buried in his bronze ‘buried alive casket’, his head resting on a black sack of letters his mother had written him while alive. No autopsy was performed. In his 23-clause-long will, which had been prepared in 1924 with a codicil added in 1925, Houdini left his collection of over 5,000 books (valued at $30,000) to the Library of Congress. His brother Theo received most of his magic equipment and memorabilia; however, Houdini stipulated that the magic apparatus be ‘burnt and destroyed’ upon Theo’s death. Two assistants received $500 each, while The Society of American Magicians received $1,000. His ‘hat rabbits’ reportedly were given to the children of friends. The balance of Houdini’s estate went to Bess, and it was enough to cover his extensive debts and to allow Bess to live comfortably. Bess also received $50,000 in life insurance money, since Houdini had remarkably purchased a double indemnity life insurance policy in the event of his accidental death.

The Chinese Water Torture Cell secret remains a mystery to this day, and my breath-holding record stands at 1:03.

Jennifer Hartman, guest blogger
 

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One form of Advance Directive is the Do Not Resuscitate Order, commonly referred to as a DNR Order, or simply a DNR. It is a written order, signed by a medical professional, indicating one’s desire that lifesaving measures not be initiated if one were to stop breathing or if one’s heart has stopped. A DNR Order is generally only put in place when a person is suffering from a serious, often terminal condition, and when ‘CPR will almost certainly not benefit the patient and is not part of the plan of treatment’.

Up until February 2008, an odd, but not insignificant loophole existed that prevented paramedics and firefighters from honouring any existing DNR while a person was being provided with emergency assistance on the scene, or while in transport to a medical facility. The Ambulance Act’s Basic Life Support Patient Care Standards, Version 2 meant that paramedics were legally obliged to initiate life support measures, including, but not limited to, chest compressions, artificial ventilation, and intubation. Perhaps 911 had been called in order for the person to be transported to a hospital to be rehydrated, or to be treated for an infection. Prior to February 2008, if something catastrophic were to thereafter unfold en route, emergency resuscitation measures would have been initiated, possibly with unimaginable consequences, even if a DNR order was provided to the paramedics or firefighters on-site.

In order to address this disconnect between personal wishes, best intentions and legal constraints, a DNR Task Force was struck in 2003. As a result, there is a new Do Not Resuscitate Confirmation Form that became the new standard in Ontario as of February 1, 2008. Once completed by a physician or nurse, the form authorizes paramedics and firefighters to withhold life support measures, as well as to provide palliative comfort care measures such as suctioning, oxygen, pain control (including morphine) and tranquilizers. This form can be viewed online here.

Jennifer Hartman, guest blogger

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The Manitoba Law Reform Commission has recently recommended that legislation be put into to place to give children who are artificially conceived after a parent’s death the same rights to the parent’s estate as children who were already living. 

The impetus behind the recommendation is the growing use of artificial conception techniques and the recently new possibility of conceiving a child after a partner’s death.  The objective is to deal with this in legislation, before cases start to appear in court. 

In several provinces, the law provides that children who have been conceived while a parent is living (but are born after death) can have an interest in the parent’s estate.  But so far, there are no laws that provide for children who are conceived after a parent’s death (for example, by in vitro fertilization).    

The commission is recommending that the law be limited to children who are conceived within two years of the deceased’s death and that a parent who anticipates conceiving must give notice within six months of the deceased’s death.  In the interim, the estate would remain frozen.  

It will be interesting to see what the law looks like if it comes to fruition.  Allowing a prospective parent to freeze an estate for eighteen months could create serious administrative problems, particularly with respect to the payment of debts owing to creditors.  In addition, I wonder what impact legislation like this would have on the deceased’s obligation to surviving family members, particularly dependants. 

Another issue that comes to mind is whether legislation would just result in people including provisions in their wills specifically limiting the class of beneficiaries to those alive at the individual’s death. 

In any event, reproductive technology is a rapidly advancing area of science and it seems inevitable that at some point this will become an issue.  It will be interesting to see if other provinces start to consider introducing similar legislation.

Have a great spring weekend!

Megan F. Connolly    

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Megan F. Connolly 

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 Listen to The Drafting of Wills -Part 2 - The Specifics of Charitable Giving

This week on Hull on Estates and Succession Planning, Ian Hull and Jordan Atin continue their discussion on the drafting of wills and take a closer look at the specifics of charitable giving.

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 The Legal and Substantive Role of the Executor

This week on Hull on Estates Ian Hull and Suzana Popovic-Montag discuss the legal and substantive role of the executor at the time of death. They focus on the question of who has right and control over the body and refer to the 2001 decision of Sopinka vs. Sopinka.

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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I keep hearing from my mother and her friends that 60 is the new 40.  However, as it turns out, 27 might be the new 65 and those of you who have been thinking that you are getting smarter as you get older could well be mistaken. 

A study performed by researchers at the University of Virginia indicates that mental agility peaks around the age of 22 and starts to decline around the age of 27.  The areas that decline include speed of thought, visualization, and reasoning. 

Participants in the study were required to identify patterns, solve puzzles, and recall words and details and in nine out of twelve tests, 22 was the average age at which performance peaked.  Incidentally, the tests used in the study are the same types of tests that are used to spot signs of Alzheimer’s disease.

The results of the study might have important implications on research into the effects of ageing and, in particular, the neurological changes that occur as we grow older. 

The study indicates that tests employed to identify the onset of neurological disorders might need to start earlier and techniques used to counteract the neurological effects of ageing perhaps should also begin earlier. 

There is a silver lining to the study – for those of you troubled by the idea that you may have been at your mental peak during your college years, all is not lost.  The study also indicates that memory stays intact until your late 30s and that abilities based on accumulated knowledge continue to improve to about 60.    

Have a great day,

Megan F. Connolly

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The recent decision in Wilson v. DeBonis (Estate) involved the dependant support claim brought by the deceased’s common law spouse and is a useful example of factors the court will consider when determining whether to order support.

The deceased left a will in which he made a bequest to his son, and gave the applicant a life interest in the condo (at her death or when the condo was sold, the deceased’s share of the condo was to pass to his grandchildren) and the residue of his estate.

For reasons set out in the decision, the court decided that the applicant had not adduced sufficient evidence to prove that given her owns assets (and the value of her 50% interest in the condo) the deceased had made inadequate provision for her and it dismissed her claim.   

In making its decision, the court considered the applicant’s means and expenses.  However, it also considered a couple of other factors that I found interesting. 

First, the applicant had argued that given the length of cohabitation (21 years), the deceased had a heightened obligation to provide for her support.  The court found that while the length of cohabitation weighed in the applicant’s favour, it should not become a determining factor absent other evidence indicating a need for support. 

Second, the court also considered the deceased’s intention to benefit others in his will.  Specifically, the court took into account that the deceased and applicant had purchased their condo as joint tenants, but later severed the joint tenancy.  It found that this consensual severance reflected the mutual interest of the applicant and the deceased to safeguard part of their assets for their respective grandchildren.   Even though none of the grandchildren were dependants, the court found this intention should be considered when determining the deceased’s legal and moral obligation to provide for the applicant.   

Have a great day!

Megan F. Connolly  

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When someone dies, they generally don’t get to take their debts to the grave.  Outstanding debts, such as bills and loans, remain just that…outstanding.  And just because the debtor is now gone, does not mean the creditors are going to be forgiving. 

Sometimes, the repayment of debts happens quickly and easily:  the debts are easy to identify; the deceased’s assets are sufficient to pay them; and there is someone with the authority to access the funds necessary to make the payments (i.e. an executor). 

However, when repayment doesn’t happen, creditors often come to collect.  A recent article in the New York Times, You’re Dead?  That Won’t Stop the Debt Collector, looks at what the paper refers to as “the newest frontier of debt collecting” – finding some way of collecting debts from the dead.  While this might mean going after a deceased’s assets, it also includes contacting next of kin and asking whether they’d mind paying up on the deceased’s behalf.  

Something I found interesting about the article was the degree to which next of kin believed that they were obligated to pay the deceased’s debts and the fact the collection agents weren’t too quick to dissuade them from that belief.

Generally speaking, next of kin do not become personally liable for debts on the death of a relative; the deceased (through his/her assets) is solely liable for those debts and in situations where the assets remaining are insufficient to pay the debts, the estate will be insolvent – family members will not be called on to “kick in” to pay outstanding liabilities.    

However, something to remember is that a deceased person’s debts are, along with funeral and testamentary expenses, a first charge on his/her assets; the debts must be paid before the beneficiaries get paid, so to speak.  So, if beneficiaries have received their share and the creditors have not, the creditors might be able to go after the assets that have been inherited.

Have a great day!

Megan F. Connolly   

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My blog today is the last in my series this week on protecting a trustee from potential liability.

A trustee may be protected from potential liability based on the conduct of the beneficiaries themselves or by having sought the assistance of the Court. 

If a beneficiary consents to, or concurs in, a breach of trust prior to it being carried out, or he releases the trustee from liability, or in some other way acquiesces in the breach after it has been carried out, he or she may not subsequently claim from the trustee any compensation to the trust for the loss arising. It is the beneficiary’s personal conduct which bars him or her from making such a claim. A beneficiary, who has instigated, requested or consented to a breach, may possibly be required to indemnify the trustee to the extent of the beneficial interest.

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Today’s blog will continue my series this week on protecting trustees from potential liability.

A trustee may incur personal liability arising from his or her administration of the trust. The provision or existence of a release and/or indemnification in favor of the trustee may protect, limit or exonerate the trustee from liability.

With respect to a trustee’s accounts (accounting) for the administration, releases may be sought by the trustee and provided by the beneficiaries in conjunction with a Court order passing the accounts.   Alternatively, the beneficiaries may provide the trustee with a release in lieu of compelling the trustee to pass his or her accounts in Court. Amongst other considerations, when seeking a release from the beneficiary, a copy of the accounts should be provided, either in an informal format or formal format, for the beneficiary’s benefit.  

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Listen to Powers of Attorney for Personal Care

This week on Hull on Estates Diane Vieira and Natalia Angelini discuss powers of attorney for personal care.They refer to a Mark Handelman's paper Power of Attorney for Personal Care: Fries with that Will? on the subject. They point out that even though powers of attorney often garners less attention that they should still be carefully thought out.

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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Today’s blog is a continuation of my series this week on protecting a trustee from potential liability.

Perhaps the best way for an outgoing trustee (and/or new trustee) to limit any liability that may be visited upon him/her/them as a result of the administration of the trust (or to the date of his or her retirement, removal and replacement) is for the trustee and his or her co-trustees, if any, to pass their accounts.   Assuming the accounts are passed, not only will the trustee know the “starting numbers” and the assets/liabilities for the future administration of the trust (that is start with a clean slate), but the trustee will have been afforded the proper protection of the Court order. 

Requiring an accounting may also be the only way that the beneficiaries can review the administration of the trust and determine whether the administration has been proper or whether misconduct has occurred, negligent or otherwise.

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Listen to The Drafting of Wills

This week on Hull on Estates and Succession Planning, Ian Hull and Jordan Atin discuss drafting wills and some of the more personal aspects of it such as family matters and charitable giving.

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

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Today’s blog is part II in my series this week regarding the protection that may be available to a trustee against potential liability.

Apart from the provisions of the trust document itself, a trustee’s potential liability may be protected, limited or exonerated in a number of ways by statute.   Some examples are sections 18(1), 20(3), 28 and 29 of the Trustee Act (“Act”). 

Section 28 of the Act provides that a trustee is not liable for a loss to the trust arising from the investment of trust property if the conduct of the trustee that led to the loss conformed to a plan or strategy for the investment of the trust property, comprising reasonable assessments of risk and return, that a prudent investor could adopt under comparable circumstances. Section 29 of the Act provides that if a trustee is liable for a loss to the trust arising from the investment of trust property, a court assessing the damages payable by the trustee may take into account the overall performance of the investments.

The application of the Limitations Act should also be considered.

Also, in considering a trustee’s potential liability in respect of his or her administration of the trust, a trustee ought to consider his or her conduct and whether that conduct may be exonerated, if necessary, by the Court under section 35 of the Act. As a way of balancing the rights of beneficiaries with the interest to not overburden trustees, s.35 of the Act holds that when a breach occurs, the Court has the discretion to relieve the trustee of liability in cases where it believes that the trustee acted honestly and reasonably and ought fairly to be excused.

With some exception, the Court therefore has a statutory discretion to grant trustees relief from liability if they have acted honestly and reasonably, and ought fairly to be excused.  

Thanks for reading,

Craig

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A trustee, whether incoming or outgoing, needs to be aware of and consider his or her potential liability as trustee and over the administration of the trust. The trustee’s conduct may be protected, limited or exonerated by the terms of the trust, statute, an Order relieving the trustee of liability, the existence or provision of releases or indemnities, a passing of accounts, the conduct of the beneficiaries, whether indirect or direct, and/or the assistance of the Court. 

My blogs this week will, to some extent, touch upon some of the ways that the potential liability of a trustee can be protected, limited or exonerated.

To begin with, a trustee, whether incoming or outgoing, ought to carefully review the terms of the trust document as the trust document may contain provisions that impact on the potential liability of the trustee.

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I recently stumbled on an article by Eileen AJ Connelly, where she discusses the issues that might arise with aging relatives or friends. I found Ms. Connelly’s article to be interesting because Canada is an aging society, but more particularly because it provides her readers with a strategy on how to approach the subject of managing finances with an elderly relative and what signs to watch for if it is suspected that an elderly relative might be having trouble handling finances.

In her article, Ms. Connelly lists the following “warning signs” to watch for if you suspect an elderly relative, client or friend may be having trouble handling finances:

1.                  Unopened mail;

2.                  Late or unpaid bills; collections actions;

3.                  Confusion or lack of interest about what bills have been paid;

4.                  Bounced checks;

5.                  Disorganized personal paperwork;

6.                  Uncashed cheques or unclaimed property reverting to the government;

7.                  A large number of magazine subscriptions; and

8.                  Unusual or increasing direct mail or shopping-channel purchases.

The theme behind Ms. Connelly’s article is not to wait to get involved, but be proactive. If you have noticed a possible problem with an elderly relative or friend you should not wait to have the dreaded conversation of managing finances. The longer you wait, the greater the risk that any existing problems will only accumulate. Ms. Connelly states that most elderly relatives, like parents, are afraid that they are bothering their children and it’s up to the children not to assume that your offer for help will be refused.

Thank you for reading and have a great weekend.

Rick Bickhram

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On September 2, 2008, my colleague Megan F. Connolly blogged on Leona Helmsley, the deceased billionaire who settled a $12 million trust for the benefit of her Maltese, named Trouble. 

As it turns out, in 2003 Ms. Helmsley drafted a mission statement to establish goals for a multibillion dollar trust. Under the 2003 mission statement, Ms. Helmsley directed her trustees to make grants from the trust, in their sole discretion, for the benefit of:

1.                  indigent people;

2.                  for the care of dogs; and

3.                  such other charitable activities as the trustees shall determine.

A year later, Ms. Helmsley executed a subsequent mission statement (link 2004 mission statement), which revokes all prior mission statements and essentially removes the first goal from the mission statement. 

Up until February 19, 2009, experts in trusts and estates had debated over the validity of the mission statement. The judge overseeing the probate of her Will, Judge Troy K. Webber of the Surrogate Court in Manhattan, held “the trustees may apply trust funds for such charitable purposes and in such amounts as they may in their sole discretion determine”. Accordingly, Judge Webber’s ruling will permit billions of dollars to flow into a charitable trust to be distributed not only for the care and welfare of dogs but in other areas such as health care, medical research, human services, education etc. Given the state of the U.S. economy, there will clearly be no shortage of willing grant recipients.

Thank you for reading.

Rick Bickhram

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Listen to Amendments to the Rules of Civil Procedure.

This week on Hull on Estates Rick Bickhram and Paul Trudelle discuss the amendments to the rules of civil procedure that have be set out by the government and come into effect on January 1, 2010.
The purpose of these amendments is to provide the civil justice system with a means of being more affordable and accessible.

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

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In keeping with modern advances in our society, The Honourable Coulter Osborne (former Associate Chief Justice of Ontario), was asked to propose some options that would assist in making our civil justice system more accessible and affordable.  The Honourable Coulter Osborne submitted his findings and recommendations and in December 2008 The Civil Rules Committee filed amendments, which are scheduled to come into effect on January 1, 2010 (amendments can be found here).  It is important to note that there is no transitional stage with respect to the amendments coming into force. 

The following are a few amendments that caught my eye:

1.    Rule 1.04 (1.1) provides that the court shall make orders and give directions that are proportionate to the importance and complexity of issues, and the amount involved, in the proceeding.  

2.    Rule 1.08 will permit the court, on its own initiative, to hear matters by telephone or video conference.  

3.    Pursuant to Rule 20 (summary judgment), the general test to obtain judgment is the moving parties ability to show that there is "no genuine issue for trial".  Rule 20 has now been amended which imposes the burden on the moving party to show that there is "no genuine issue requiring a trial".   

4.    In actions commenced in Toronto, Ottawa and Essex County, mandatory mediations are to take place within 180 days, rather than from 90 days of filing the first defence unless the court orders otherwise.  

5.    Where the discovery tools are likely to be implemented in a litigious matter, Rule 29.1 now requires the parties to agree to a discovery plan before the earlier of 60 days after the close of pleadings or such longer period as agreed.  The discovery plan must be in writing and it must include the intended scope of documentary discovery, taking into account relevance, costs and the importance and complexity of the issues.

6.    With respect to examinations for discovery, regardless of the number of parties or other persons to be examined, no party is allowed to examine for more than seven hours unless the party has obtained the consent of the parties or has obtained a court order.

7.    The monetary jurisdiction of the Small Claims Court will be increased to $25,000.00.

Again, these amendments were made with a view that it would make our civil justice system more accessible and affordable.  For instance, permitting courts to hear matters via telephone or video conference will free up judicial resources, and reduce Lawyers fees.   Increasing the monetary jurisdiction of Small Claims Court to $25,000.00 will provide access to justice for many in need and at the same time eliminate the demanding obligations that are imposed upon parties under the Rules of Civil Procedure.   I will be looking on with interest as these amendments take effect in the new year.

Thank you for reading and have a great day.  

Rick



 

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Listen to The Estate Free - Part 2

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on Estate Freezes and discuss the rights that shareholders have.

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

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An Estate Trustee During Litigation (“ETDL”) is typically seen as an officer of the court who represents the Deceased.  An ETDL has a wide variety of duties, which fundamentally includes administering assets, and paying the outstanding debts of the Deceased.  The purpose of today’s blog is to consider two Ontario decisions where an application seeking the appointment of an ETDL was rejected and granted, respectively.

Re Lloyd, 24 O.R. (2d) 340, is a 1979 decision by the Ontario Surrogate Court, as it was called.  In this case, the widow of the deceased filed a Notice of Objection challenging the Last Will and Testament of the deceased and sought the appointment of an ETDL.  On the motion, the evidence indicated that the Applicant was unhappy because she was not being kept aware of the status of the assets, but there were no allegations expressing a concern about the preservation of estate assets or that an ETDL was necessary to prevent waste or mismanagement.  In fact, the evidence indicated that the assets of the estate were well managed, and increasing in value.  Accordingly, the Honourable Justice Clements refused the appointment of the ETDL.  

Re Groner Estate, 1994 CarswellOnt 2478, is a decision by the Ontario Superior Court of Justice.  In this case, the Applicant filed a Notice of Objection challenging the Last Will and Testament of the Deceased and also sought the appointment of an ETDL.  The Applicant was concerned that the named estate trustee had been administering the estate, despite no legal authority to do so.  The named estate trustee opposed the appointment of an ETDL.  The Honourable Justice Greer held that the size of the estate was large, however the administration of the estate was uncomplicated.  Nevertheless, Justice Greer, expressed concern over the conflict in having the named estate trustee’s lawyers acting as de facto administrator.  Justice Greer held that assets cannot be administered in a vacuum and that the perception of neutrality must be seen.

From an evidentiary point of view, both cases provide insight into what Lawyers should consider when drafting materials seeking the appointment of an ETDL.

Thank you for reading, and have a great day.

Rick Bickhram

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I recently learned that an old neighbour of mine was residing in a long-term care facility and I decided to visit him.  As a child, I remember my neighbour would often come out to join us in a pick up game of baseball or street-hockey.  Having known my neighbour to be a strong and vibrant individual, and despite having prepared myself, it was nonetheless disarming for me to see him in need of assistance and so dependent on others. Although, in my practice, I have cause to consider the issue of capacity almost daily, this experience caused me to reflect on the issue in a much more personal fashion.

Lawyers, particularly in our area of practice, are often required to consider capacity issues and it is easy to allow our personal views to affect our analysis.   For instance, if my neighbour left his entire estate equally among his three children, in most circumstances we would presume he had capacity.  However, if he left his estate to his caregiver, to the exclusion of his children, most of us would be inclined to conclude that he had either acted for want of capacity or was perhaps coerced to make a Will while vulnerable to undue influence.  

People do not typically become incapacitated overnight, except in circumstances where a catastrophic event has occurred.   Capacity to make a Will has been described as knowing and understanding the nature and effect of your dispositions and understanding who would be the natural persons to enjoy the bounty of their estate.

In making this determination, if there is any doubt regarding a client's capacity it is surely advisable to obtain the appropriate capacity assessment in the circumstances.

Have a great week! 

Rick Bickhram