Diagnosis of Alzheimer's Disease: A Leap Forward

At present, there is no single diagnostic test for Alzheimer’s disease. Instead, the diagnosis is reached when the medical practitioner (e.g. psychiatrist, general practitioner, geriatrician, or neurologist) has eliminated all other possible causes of the symptoms being experienced; an overview of these symptoms is provided in a previous Hull & Hull LLP blog of February 17, 2009. As a result, the diagnosis is generally coined ‘probable Alzheimer’s disease’ and this thin wedge of uncertainty often leads to an inability to accept the diagnosis as well as resistance to care and treatment. An autopsy is currently the only means of confirming the diagnosis of Alzheimer’s disease.

The Associated Press reported last week, however, that the first commercial version of a test designed to detect Alzheimer’s disease in its early stages could be available in as few as 12 to 18 months. According to Dr. Daniel Alkon, scientific director of the Blanchette Rockefeller Neurosciences Institute (the Institute has teamed with Inverness Medical Innovations Inc. for this endeavour), the test works by detecting abnormal function of a protein that is known to be involved in memory storage.

Early diagnosis will have a multitude of benefits: incorrect diagnosis of the disease based primarily on a patient’s behaviour can be greatly reduced, lifestyle changes can be made which may slow the progression of the disease, the patient and their family may gain valuable time to plan for the future, and those with a family history of Alzheimer’s disease will have tangible information with which to move forward.

Jennifer Hartman, Guest Blogger

James Brown: The Final Act?

James Brown’s estate issues have appeared on our blog on a number of occasions: see here, here, here and here.

It appears that the matter may now be at an end. On Tuesday, a South Carolina judge approved a settlement that gives nearly half of his estate to a charitable trust, a quarter to his wife and young son, and a quarter to his six adult children, according to an Associated Press report on the Macleans.ca website.

James Brown died on December 25, 2006. Numerous issues arose following his death. There were allegations of improper management of his estate; a dispute over where and how to bury his body; and an issue as to the entitlement of his wife and son, both of whom came along after his will was made in 2000.

The exact size of the Godfather of Soul’s estate is unknown. His estate was said to be valued at $80m, but subject to substantial debt.

The settlement was reached in January 2009, but the court refused to approve the settlement, and required further information. That approval was granted on Tuesday.

But wait! There may be an encore. There are pending lawsuits by the prior estate administrators, and a former employee. We may not have heard the last of this matter.

Thank you for reading, and have a great weekend.

Paul Trudelle

Death, Taxes and Taxes on Death

Ontario’s new harmonized sales tax is coming into effect on July 1, 2010. One of its effects will be to impose PST on funeral services: services that have previously been exempted from PST.

According to the harmonized sales tax, funeral services will now be taxed at the rate of 13%, up from 5%. The effect on a $5,000 funeral would be to raise the tax payable from $250 to $650.

The new harmonized tax may also have an effect on prepaid funeral services. According to a May 27, 2009 Toronto Star article, there are 224,257 prepaid funeral contracts in Ontario, and about 1 in 4 funerals in Ontario are prepaid.

The Ontario Minister of Finance has indicated that the government hopes to implement some sort of grandfathering clause, so that funeral services prepaid before a certain date remain exempted from the PST. However, nothing has been finalized yet. The cut-off date would likely be some time before July 1, 2010.

Those considering a prepaid funeral would be wise to complete their plans sooner rather than later. The new tax, like death, is approaching.

Thank you for reading.

Paul Trudelle

Uncertainties in Litigation - Hull on Estate and Succession Planning #166

 

Listen to Uncertainties in Litigation

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the uncertainties in litigation. They look at the great uncertainty of interlocutory (or injunctions, or motions) throughout the process.

They talk about the motions that are brought often that can create budget difficulties due to the unknowns in litigation.

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

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Terminating or Varying a Trust - Hull on Estates Episode #164

Listen to Terminating or Varying a Trust

This week on Hull on Estates, Jonathan Morse and Natalia Angelini discuss trusts; specifically they discuss terminating or varying a trust.

They look at an article by Debra Stevens and give their thoughts.

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

 

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What's the Password?

Probably “123456”. No? Try “password”, or some variation of it.

Our heads are becoming jammed with passwords. Almost every website service we visit requires a password. 

A few diverse posts that I have come across have looked at password usage. 

In one study, which lists the 500 most popular passwords, reported here, the top 4 most common passwords are said to be “123456”, “password”, “12345678” and “1234”.

In another report, found here, Robert Graham writes about his analysis of the passwords of 20,000 users taken from a popular website and posted by a hacker.

He finds:

-16% of the passwords matched or were based on a person’s first name;

-14% were patterns on the keyboard, such as “123456” (I thought I was the only one to think of that) or “qwerty” or “1qaz2wsx” (check your keyboard);

-4% were variations of the word “password”, such as “passw0rd” or “password1”;

-4% referred to nearby items, such as the name brand on your computer or monitor;

-3% are swear words, or terms of endearment. The F-word is particularly popular;

-35% had 6 characters, 0.34% had 1 character, 1.14% had 10 characters.

See Robert Graham’s report for more detail, and check out the “Top 500” to see if your password makes the list.

As for estate practitioners, guessing their password is easy: 9 times out of 10 it is “intervivos1”.

Thanks for reading.

Paul Trudelle

Venue for Passing of Accounts Applications

In the February 2009 edition of The Probator, I reported on the decision of Brown J. in Re McMichael Estate. There, Brown J. clarified the requirement that an application for a Certificate of Appointment be filed in the court office for the county or district in which the testator was living at the time of death.

In the recent decision of Re Pearsall released May 21, 2009, (Court File No. 05-36/09, not yet reported) Brown J. offers further clarification on the issue of where applications involving estates may be commenced. 

Rule 13.1 of the Rules of Civil Procedure provides that a proceeding must be commenced at the place required by the applicable statute or Rule. If no statute or Rule applies, it may be commenced at any court office.

While the Estates Act stipulates where an application for a Certificate of Appointment must be made, no statute or Rule dictates where an application to pass accounts must be brought, whether as Estate Trustee or guardian for property.

Thus, as held by Brown J., an application to pass accounts can be brought in any county, regardless of where the Certificate of Appointment may have been issued.

Thank you for reading.

Paul Trudelle

An Attorney's Duty to Account

An attorney acting under a power of attorney may be required to account to the beneficiaries of the grantor’s estate after the death of the grantor. This is the holding in the decision of McAllister Estate v. Hudgin. Megan Connolly blogged on this case here, on the issue of accounting, and here, on the issue of removal of an estate trustee.

In the May 11/18, 2009 issue of the Law Times, in a comment titled “The duty of an attorney to account”, John O’Sullivan and Lori M. Duffy comment further on the McAllister decision. They note other cases where an attorney for property has been compelled to account to the beneficiaries of an estate after the death of the grantor.

The authors suggest that in light of the duty to account, “the wisest course for a person exercising a power of attorney for property following these decisions is to assume that he or she will be required at some point in the future to account to persons opposed in interest, and to conduct themselves accordingly throughout their tenure as power of attorney.”

The authors go on to suggest that attorneys should, if they can, ensure that the power of attorney document provides protection for the costs that they may be forced to incur in preparing the accounts and passing them before the court.

Thank you for reading,

Paul Trudelle

 

The Executor as "Spokesman of the Soul"; Revisiting the Will of Alfred Nobel

"I regard large inherited wealth as a misfortune, which merely serves to dull men's faculties. A man who possesses great wealth should, therefore, allow only a small portion to descend to his relatives. Even if he has children, I consider it a mistake to hand over to them considerable sums of money beyond what is necessary for their education. To do so merely encourages laziness and impedes the healthy development of the individual's capacity to make an independent position for himself." – excerpt from the last will of Alfred Nobel, 1833-1896

Born in Stockholm on October 21, 1833, Alfred Nobel was the third son of Immanuel Nobel, an engineer and inventor, and Andriette Ahlsell. After being sent abroad for study, Alfred became best known for mixing siliceous earth with nitroglycerine, forming it into a rod, and coining it ‘dynamite’. In addition to his obvious attraction to science, innovation and industrialism, Nobel was also drawn to social issues, as touched upon in a previous Hull and Hull LLP blog .

On November 27, 1895, Nobel signed his third and last will in Paris. It was handwritten on a yellow notepad, with notes scribbled in the margin, and Nobel had discussed it with no one. (Click here for the full text of the will).

                                   

After he died of a stroke at his villa in Italy in 1896, shock and controversy ensued when it was discovered that Nobel had bequeathed the bulk of his fortune (the equivalent of $214 million in today’s money) for the establishment of what would come to be known as the Nobel Prizes: coveted and prestigious annual prizes in five categories, awarded without distinction of nationality. Ragnar Sohlman and Rudolf Lilljequist, two of Nobel’s young engineers, were named as executors, and one of their first tasks was to collect Nobel’s far-flung assets and move them quickly back to Sweden before French authorities could make claim to the money. Nobel’s shares, bonds and documents were rounded up and hurried to the Swedish consulate in Paris by horse-drawn cab, escorted by Sohlman, who was armed with a revolver ‘at the ready in case of direct attack’.

The will was incredibly controversial, and was indeed flawed, imprecise and legally deficient. Apparently Nobel had had such negative experiences with lawyers (‘niggling parasites’, as he referred to them) when defending his dynamite patents that he had drawn up the will himself. Initially, Nobel’s permanent domicile could not be easily determined since he had lived in so many countries. To complicate matters, the executors were left the task of forming the Foundation, which was done in Sweden where the will was eventually probated. Nobel had not even consulted the various Prize-awarding institutions to seek their consent to participate in the awarding of the Prizes. Most surprisingly for Nobel’s relatives, this third will contradicted an earlier will in that Nobel’s heirs, instead of receiving twenty percent of the estate would now only receive specific legacies. Two bitter nephews quickly challenged the will and tried to have it declared null and void, however, another nephew residing in Russia told Sohlman about the Russian concept that the executor is ‘the spokesman of the soul’ of the testator. King Oscar II of Sweden added fuel to the fire when he dismissed Nobel’s wishes as ‘nonsensical’ and ’not patriotic minded’ because his property would now be dispersed internationally. King Oscar II later recanted his disapproval when he realized that publicity about the prizes might, in fact, benefit Sweden, and in 1902, handed out the first prizes to the laureates on December 10, the anniversary of Nobel’s death.

Jennifer Hartman, guest blogger
 

Rule 39 and Solicitors as Witnesses

Yesterday, my blog touched on the use of Rule 39.03 to examine non-party witnesses before the hearing of a pending motion or application.  As noted, Rule 39.03 can be used to summons solicitors to give relevant evidence about a deceased former client in estate litigation proceedings. However, given the special relationship between a solicitor and his/her client, it is always good practice to obtain a court order in advance which directs a solicitor to attend an examination and waives confidentiality and solicitor-client privilege over any evidence provided.  As demonstrated by a recent case, Rule 39.03 is not a carte blanche to examine solicitors about former clients.


In Nieweglowski Estate (Re) 2009 Canlii 13033 (On. S.C.), Justice Strathy held that a solicitor is entitled to the protection of a court order before being examined as a witness pursuant to Rule 39.03.  The case involved estate litigation over Mr. Nieweglowski’s Will and a property transfer made by him before his death.  Further to a prior court order, the solicitor who had assisted Mr. Nieweglowski produced his files regarding the matters.  However, the court order did not provide for the solicitor’s examination. The solicitor was then subpoenaed to give evidence pursuant to Rule 39.03.  Although the solicitor attended at his examination, he refused to give evidence. The ground for his objection was the absence of any express provision in the first court order. The party that had subpoenaed the solicitor moved before Justice Strathy for an order that the solicitor provide his evidence and that he be personally responsible for the costs of the first aborted examination.

Justice Strathy refused to order costs against the solicitor. His Honour held that it was not unreasonable for the solicitor to insist upon a court order directing him to attend an examination and provide evidence about privileged communications with a former client.  Accordingly, Justice Strathy ordered that the solicitor was entitled to provide his evidence regarding matters that would otherwise be privileged or confidential.

Have a great day!

Bianca La Neve
 

The Question of Costs - Part 2 - Hull on Estate and Succession Planning #165

 

Listen to The Question of Costs - Part 2

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the question of costs. Specifically, they discuss the estimated costs when engaging a lawyer.

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

 

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Useful Clauses in a Will - Hull on Estates Episode #163

Listen to Useful Clauses in a Will

This week on Hull on Estates, Paul Trudelle and Sarah Hyndman Fitzpatrick discuss various clauses in a will that may be useful in certain circumstances, such as carrying on a business, exclusion of illegitimates, or RESP's.

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

 

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Interplay between Estate Litigation and General Civil Litigation: The Use of Rule 39

Estate litigation differs in many ways from general civil litigation, as noted in previous blogs on our website. Differences notwithstanding, estate litigators should still make it a habit to consider all of the Rules of Civil Procedure when planning out their litigation strategy.

In gathering the necessary evidence in estate litigation matters, counsel must resort to Rule 39 of the Rules of Civil Procedure. Rule 39 deals with how evidence may be provided on motions and applications. In the usual course, evidence is given by affidavit and cross-examination on affidavits. However, Rule 39 provides for other ways to obtain evidence:

  • by the examination of a witness before the hearing of a pending motion or application [rule 39.03(1)];
  • by the examination of a witness orally at the hearing, with leave of the court [rule 39.03(4)]; or
  • by the use of an examination for discovery on the hearing of a motion [rule 39.04].

The examination of a witness before the hearing of a pending motion or application [rule 39.03(1)] can prove a useful tool for obtaining evidence from non-parties to the litigation. If a non-party witness has relevant evidence, there is arguably a prima facie right to resort to this rule so long as the right is not exercised in a way that constitutes an abuse of process. A witness examined under Rule 39.03 may be cross-examined by the examining party and any other party. 

In my own estates and trust litigation practice, I have used Rule 39.03 to summons solicitors and health practitioners to give relevant evidence about a deceased individual in Will challenge proceedings. Rule 39.03 can prove a useful tool to other estate litigators in marshalling their evidence for motions and applications. 

Have a great day!

Bianca La Neve

Access to Justice for the Elderly

The growth in Canada’s aging population has led to increased awareness of the special needs of seniors and the impact of the law on them. Our blogs have often dealt with issues that particularly affect the elderly, such as power of attorney abuse. In a previous blog, I noted the rise of a new practice specialty, elder law, to deal with the multi-faceted legal needs of the elderly. 

The Advocacy Centre for the Elderly (ACE) is a longstanding community legal clinic that has been at the forefront of elder law since 1984. ACE specializes in providing legal services to low income seniors in Ontario and promoting access to justice for the elderly. Through its work, ACE has developed expertise in issues affecting older persons, such as elder abuse and exploitation, mental capacity and consent, patients’ rights in hospitals and other institutions, and substitute decision making. 

ACE is currently working with the Law Commission of Ontario (LCO) to research the best ways to enforce the rights of older adults residing in institutional settings, such as hospitals, long-term care homes and retirement homes. Older adults, including residents in institutional settings, are too often denied access to justice due to lack of awareness of legal rights, discrimination based on age, and financial and physical obstacles in trying to access the legal system. ACE’s goal is to develop an ‘access to justice model’ that will promote the autonomy and dignity of older adults residing in institutions, and ensure that their complaints are heard and successfully resolved. ACE’s work is part of a broader multi-year project by the LCO to develop a new framework to analyze and understand the impact of law on older persons. 

For more information about ACE, see their website at www.advocacycentreelderly.org. More information about the LCO’s project on older adults can be found on their website at www.lco-cdo.org.

Have a great day!

Bianca La Neve

D-I-Y Funerals

I recently came across an article which suggests that Do-It-Yourself (D-I-Y) funerals are an emerging trend in the United States. The article charts the growth of the home funeral movement in the last two decades.

A D-I-Y home funeral can mean many things. A family member may want to build the casket, hold a visitation at home, and they may even want to prepare the body for viewing. The D-I-Y movement provides information on the different state laws and guides family members in the completion of the related forms.

Fuelled by economic concerns, an increased desire to personalized funerals, and the ecology movement which discourages the use of embalming chemicals, some families are investigating this option. 

Comparing the D-I-Y home funeral movement to the home birth movement, some advocates suggest that professional services disassociate family members from the grieving process and a return to a home funeral results in a more meaningful experience.

Not sold on the merits of preparing your loved one’s body for viewing and burial? Max Alexander has written a touching piece on his experience with a home funeral and a regular funeral. Alexander’s father and father–in-law died in the same month. While his father had a traditional funeral, his father-in-law had a home funeral. Despite all the paperwork involved, Alexander favours the home funeral approach.

In Ontario, funerals are heavily regulated but it is not illegal to prepare a family member for burial and cremation without the assistance of a funeral home as long as you are in compliance with all relevant regulations. However, in order to comply with all regulations and obtain the proper paperwork, funeral directors are an invaluable source. Further, funeral homes are adapting to the requests of families by accepting homemade caskets and preparing bodies for viewings held at a private home.

And remember that the D-I-Y funeral movement does not include D-I-Y burials and cremations; some things have to be left to the professionals.

Enjoy your (long) weekend!

Diane Vieira

Powers of Attorney and Real Estate Fraud

To assist real estate lawyers in identifying forged powers of attorney and fraudulent real estate transactions, the Law Society of Upper Canada has provided real estate lawyers with a set of new guidelines and procedures for powers of attorney and real estate transactions.

In order to address the issue of fraudulent transfers of title and mortgages, new registration requirements were implemented last year necessitating law statements by individuals registering real estate documents under the authority of a power of attorney. Paul Trudelle’s previous blog of last year describes the new registration requirements.

The new registration requirement and Law Society guidelines have in part been necessitated by the case of Revickzy v Melekinia. Natalia Angelini’s blog sets out the background of the case and comments on the possible impact on a solicitor’s duties.

The Law Society guidelines include the following suggestions:

  • To the extent possible, lawyers avoid the use of  Powers of Attorneys in real estate transactions;
  • That when a Power of Attorney is required and a pre-existing Power of Attorney does not exist, the lawyer should prepare the Power of Attorney themselves, meet with the donor and make diligent inquiries to establish that the donor’s identity;
  • That lawyers for all parties should review Power of Attorney to determine that it is in compliance with legislation;
  • That lawyers should use their best efforts to register the Power of Attorney on title and provide a copy of the registered Power of Attorney to the other side; and
  • Lawyers comply with the Law Society client identification and verification requirements.

For more information, read Jonathan Morse’s blogs on mortgage fraud and how British Columbia is dealing with the issue.

 

Hopefully, in adopting these practices lawyers can assist in recognizing fraudulent real estate transactions.

 

Thanks for Reading,

 

Diane Vieira

Twittering Lawyers

By now, almost everyone has heard about Twitter. Twitter is the micro-blogging social network that allows you to publish and read short messages of less than 140 characters (“tweets”). Twitter has over 10 million users and with all the recent media attention it seems like everyone is on twitter; celebrities, news agencies, municipalities, and corporations.

Some people think it’s a fad and others think that it is the new source for sharing information. It is difficult to predict what role Twitter has for lawyers in a professional capacity. Some lawyers are using Twitter to republish their blogs, build social networks, and access information. Other lawyers are not sold on the idea of Twitter. Click here  to hear a podcast by two lawyers debating both sides of the issue.

For lawyers deciding whether or not to Twitter or those who have already taken the plunge, Steve Matthews for slaw.ca has written a fantastic blog offering lawyers some dos and don’ts for using Twitter.

While Twitter has been around for awhile, it will be interesting to see if its new surge in popularity will affect the way the legal community views Twitter as a marketing tool.

Thanks for reading,

 Diane Vieira

 

 

 
 

The Distinction Between Bringing Motions and Commencing Proceedings - Hull on Estates #162

 

Listen to The Distinction Between Bringing Motions and Commencing Proceedings

This week on Hull on Estates Rick Bickhram and Chris Graham discuss some important distinctions between bringing motions and commencing proceedings in the estates context as opposed to general civil litigation. They look at this in the context of applications, motions and statements of claim.  

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

 

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The Question of Costs - Hull on Estate and Succession Planning #164

 

Listen to The Question of Costs

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the question of costs. They talk about where people get paid out of in typical estate contested matter and begin to discuss what the costs are and what it really costs a client to engage a lawyer.

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

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Succession Planning for Lawyers

A recent article in the Ontario Lawyers Gazette discusses succession planning for lawyers with respect to their practice. Lawyers often fail to plan for their retirement or death and often do not set up a formal succession plan for their practice to the determent of their families, clients, and colleagues.

The article states that 41% of practicing lawyers are over 50 years old and 34 % of all lawyers in Ontario are sole practitioners with an additional 29% working in firms of two to ten lawyers. However, often lawyers do not prepare well enough in advance for the winding down of their practice or what will happen to their practice in the event of their death or disability.

The article makes a number of helpful suggestions including:

  • Advising sole practitioners to assign another licensed lawyer or paralegal with alternative signing authority for their trust account in the case of an emergency;
  • Suggesting that practitioners name a licensed lawyer or paralegal as a limited trustee in their Will for the sole purpose of winding up a practice;
  • Advising lawyers that a non-lawyer trustee or attorney pursuant to a Power of Attorney may not be able to deal with some of the issues with respect to winding down a practice;
  • Advocating that lawyers communicate with their families, partners, and employees their succession plan; and
  • Advising lawyers to plan well in advance (i.e. five years) to maximize their financial compensation.

The Law Society offers A Succession Planning Toolkit and a Guide to Closing Your Practice to assist lawyers. On May 20, 2009, the Law Society will be offering a teleseminar Succession Planning for your Practice  discussing these topics and more.

Thanks for Reading,

Diane Vieira

U.K. Man Loses Bid for Open Field Funeral Pyre

A recent case from Britain focuses the spotlight on the traditional Hindu cremation practice. 
 
A 70 year old Hindu spiritual leader, Davender Ghai, sought the legal right to an open air funeral pyre. In 2006, Newcastle City Council has refused Mr. Ghai’s request for a permit for an open air cremation site in a remote part of Northumberland. Citing the Cremation Act, 1902, Council noted that the burning of human remains other than a crematorium is a criminal offence. The Ministry of Justice agreed with the Council’s decision.
 
Mr. Ghai appealed the Council’s decision to the High Court. Mr. Ghai, who immigrated to Britain from Kenya in 1958, stated this he required an open air funeral pyre to release his spirit after death. Invoking Articles 8 and 9 of the  European Convention on Human Rights Act, Mr. Ghai argued that his religious freedom and freedom to family life were being infringed. Mr. Ghai requested to be able to follow the 4,000 year old tradition at the time of his death and noted that such permits would have to be regulated and pyres sites held away from urban and residential areas. 
 
Mr. Justice Cranston upheld the Council's decision. He agreed with the Ministry of Justice that open cremation is prohibited by law and that the prohibition was justified on the grounds of public health and public safety. The issue is not over yet, Justice Cranston did give Mr. Ghai permission to appeal his ruling to the Court of Appeal. Mr. Ghai has stated his intention to do so.  
 
As the population ages in multicultural societies, we can expect to revisit similar issues frequently

Enjoy your day,
 

Diane Vieira

 

Fanconi Canada - Funding Research to Find a Cure

 Over the weekend, lawyers from Hull & Hull attended a banquet and silent auction in support of Fanconi Canada, an organization committed to raising money for Fanconi Anemia.  

 
For those of you unfamiliar with the disease, Fanconi Anemia is a rare inherited blood disorder that can lead to bone marrow failure (it causes your bone marrow to stop producing the blood cells necessary for your body to function normally).  Those who suffer from it do not just have to grapple with physical problems but are also an an increased risk of developing problems such as cancer and leukemia.  
 
While the disease can strike anyone, it is most prevalent amongst children.  It appears most frequently in the form of a birth defect.  The average life expectancy of someone with the disease is 22 years (but unfortunately many children do not survive into adulthood).  
 
Despite the research that has been done, no cure had been found.  Hopefully fundraisers like the one we attended will help further the goals of this very important organization.  
 
Have a great weekend.  
Megan F. Connolly  

 

In Burial News, Cemetery Goes "Green"

For all those who are eco-obsessed, the New York Times reports that a cemetery in Lawrence, Kansas is offering an environmentally-friendly way to be buried (when your time finally comes; and see previous blogs that also touch on this issue using our search bar)). 

The Oak Hill Cemetery has been offering “green” burials since January of this year and has recently sold its first plot.  It plans to devote approximately 1/3 of an acre to what it refers to as “natural burials”.

The deceased has the opportunity to be buried in a biodegradable casket, without being embalmed and with no concrete grave liner.  Polished or metal headstones are not permitted – head stones can only be made from natural rock.  In lieu of artificial flowers and other grave decorations, wild flowers will grow, the objective being for the land to eventually revert to its natural habitat.  

Unlike a lot of environmentally-friendly initiatives, natural burials will be less expensive than the traditional alternatives – about 25% to 75% less, depending on the options selected. 

The natural burial process does have its challenges, though – and they are resolved by relying on some “non-green” solutions.  Digging a grave is somewhat difficult without heavy machinery.  The solution is to allow the family members help city employees dig 1/3 of the grave with shovels and rely on machinery to do the rest.  Family members are also given the option of allowing a lowering advice to be used to place the coffin in the grave (if they decline, city staff will do it using biodegradable materials). 

According to Joe Sehee, director of the Green Burial Council, people are beginning to doubt whether preserving a body through artificial means is the decent thing to do.  Sehee told the Associated Press, ''I think people are finding solace in the ashes to ashes idea again…It allows people to befriend death on some level, to say 'Let's let go and return naturally, not try to impede the process any more.’”

Have a great day!

Megan F. Connolly  

Planning for Your Pet's Future Without You...

In Maryland, legislation was recently enacted that allows pet owners to establish trusts for their pets, making it the 40th state to allow pet trusts.  Previously, people could not leave gifts to pets because, at law, pets were chattels and could not inherit property. 

There are some limitations to the law.  To begin with, people can only leave funds for pets living at death – they are not allowed to provide for “future generations” of animals.

In addition, while the pet owner must name a trustee for a trust, it must also name a caregiver for the pet (the caregiver and trustee can be one and the same).  If, after the pet owner’s death, the pet is not properly cared for or the trust funds are not being administered appropriately, the law will provide that an outside party can apply to the court to get the trustee or the caregiver replaced. 

The pet owner should also specify to whom the remainder of the trust should go when the pet dies (the article suggests that the caregiver or trustee should not be left the remainder, in case it becomes a disincentive to keep the pet alive). 

The law is set up so as to avoid the type of litigation that ensued after Leona Helmlsey’s death (Helmsley, as you might remember, left $12 million in trust to her dog Trouble, while leaving nothing to two of her grandchildren).  While it does not specify a maximum that a pet owner can leave in trust, it does provide the funds should be sufficient to care for the pet.  It also gives the court the discretion to vary the trust if a beneficiary challenges it as being excessive. 

I can’t say the trend towards providing for pets in an estate plan is all that surprising, given how attached people can be to their pets.   

Have a great day!

Megan F. Connolly  

Illustrating the Use of Technology - Hull on Estate and Succession Planning #163

 

Listen to Illustrating the Use of Technology

This week on Hull on Estate and Succession Planning Ian and Suzana illustrate the use of technology. They discuss the tools they use, knowledge management within their firm and how technology has made things much more accessible for current lawyers and law students.

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

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Q + A with Rodney Hull - Hull on Estates Episode 161

 

Listen to Q + A with Rodney Hull

This week on Hull on Estates Jonathan Morse interviews Rodney Hull about his career as a lawyer. He discusses how he got started in estate litigation, how Hull and Hull was founded, how the practice of estate litigation has changed and the effect of electronic means of communicating on the practice of law.

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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Judgment Creditors - What Assets Can They Claim?

Ker Estate v. Stevenson, a recent decision from the Ontario Court of Appeal, considered whether an annuity left to a beneficiary under a will could be encroached upon by a judgment creditor. 

In this case, the deceased directed that half the residue of her estate be used to purchase a non-commutable life annuity for her daughter.  On the daughter’s death, what remained in the annuity was to be used to purchase a non-commutable annuity for the deceased’s grandson. 

After the deceased’s death, the daughter had been involved in litigation which resulted in a judgment against her.  Prior to the annuity being purchased, the judgment creditor sent a notice of garnishment to the executors requiring them to satisfy the judgment.

The executors sought the court’s direction as to, in part, whether the share of the deceased’s daughter could be encroached upon to satisfy the judgment. 

The motions judge found that the funds available for the daughter’s benefit vested in her on the deceased’s death and were available to satisfy the judgment. 

The grandson (who had an interest in the remainder of the annuity) appealed the decision on a number of grounds, a major one of which was that the court erred in finding that the annuity vested in the daughter on the deceased’s death. 

The Court of Appeal examined the nature of an annuity and, in its review of the jurisprudence, found that it could best be characterized as a legacy.  The fact that it was “non commutable” was not sufficient to persuade the court it should be characterized otherwise.  Moreover, the Court pointed to case law which suggested that the beneficiary of an annuity under a will had the right to call on the payment of the cash value of the annuity prior to its purchase. 

As a result, it affirmed the motions’ judge’s finding that the right to the annuity vested in the daughter at the deceased’s death and could be encroached upon by the judgment creditor. 

Have a great day!

Megan F. Connolly 

For a Trustee, What Compensation is the Right Compensation?

The recent decision of Pachaluck Estate v. DiFebo is a useful illustration of when the court is willing to reduce compensation awarded to the trustee for the administration of a simple estate. 

The main assets of the estate were the deceased’s condominium and several bank accounts.  Her will provided that the condo would be sold and its proceeds would be divided amongst several grandchildren; cash bequests would be made to several individuals; and the residue of the estate would be divided amongst the deceased’s two daughters. 

When the administration of the estate was near completion, the estate trustee brought an application to pass accounts.  One of the residual beneficiaries objected to the accounts in part on the basis that the compensation claimed was over and above that what was warranted in the circumstances. 

In determining what compensation should be allowable, the court considered the five factors articulated in Re Toronto General Trusts and Central Ontario Railway:

(a)   magnitude of the trust;

(b)  care, responsibility, and risks assumed by the fiduciary;

(c)   time spent by the fiduciary carrying out obligations;

(d)  skill and ability required and displayed by the fiduciary; and

(e)   results obtained and degree of success associated with the efforts. 

The court found that while the five factor were useful guidelines, the analysis should be fact specific and sensitive to the specifics of the estate administration in question.  The court also found that the application of a percentage in determining compensation should not be set in stone but should be fact specific. 

In the end, the court decided to reduce compensation.  In considering the sale of the condo, the court found that the administration of the estate with respect to this asset was uncomplicated and straightforward.  With respect to the cash bequests, the court also found that distributing them was simple.  As a result, it ordered the compensation associated with the sale of the condo and the distribution of the proceeds to be reduced to 1.5% while it ordered compensation related to the balance of the estate reduced to 2.0%. 

Have a great day!   

Megan F. Connolly 

The Unique Characteristics of the Estate Retainer - Hull on Estates #160

Listen to The Unique Characteristics of the Estate Retainer

This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss the question of retainers. This topic comes from a seminar at the Law Society of Upper Canada where they had several practitioners in different areas come and talk about their retainers. The question of retainers is a broad question that affects all practices in a similar way.
Specifically Ian and Suzana discuss the unique characteristics of the estate retainier and some of the things they use at their firm to help deliniate their job

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 birth of the biological single parent?

 

I couldn’t help but do a double-take when I came across an interesting article in the Globe and Mail by Anne McIlroy with the above-captioned title. 

Ms. McIllroy comments on the latest advances in stem-cell research, which indicate that it may be possible for someone to become a biological single parent - the source of both the egg and the sperm! 

How it seems to work is that adult skin cells can be turned into stem cells, and once they have been reprogrammed, these cells can be turned into many of the specialized cells that make up the human body. If some of the reprogrammed stem cells were transformed into sperm, and others into eggs, together they could be used to create an embryo. 

It hasn’t happened yet, but the possibility has made this a hot topic.   While it may be a discussion the Canadian legislature is not yet prepared to engage in (we have one of the more restrictive laws governing stem cell research), I would expect that if and when things change, advancements such as this will have widespread impact. 

I wonder how it can affect the estate planning area: Would it simplify estate planning by carving out spousal bequests and/or claims? Would it impact on how children of a testator are defined and/or treated? Would it increase the strength of a dependant support claim by the biological single parent child versus that of a competing child born with two biological parents?

I find the concept of biological single parenthood to be bizarre, unnatural and a little scary.  But perhaps I'm just too much of a traditionalist to keep up with this rapidly changing world of ours. 

Have a great weekend!

Natalia