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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Tomorrow is July 1^st.  It makes me think of Hatley, a small village in Quebec’s Eastern Townships and its annual Canada Day Celebration. (My wife grew up nearby.)  Across Canada, flags fly high and memories abound. 

If you will allow this segue, memories are often a significant part of estates that are easily overlooked.  When an estate arises, we often focus on assets without putting our mind to the deceased’s legacy.  For many of us, our papers and personal files do not amount to much. But it’s a different story for politicians.

An interesting paper from the Faculty of Information Quarterly at the University of Toronto compares the treatment of Presidents’ papers versus Prime Ministers’ papers. The retention of U.S. papers seems to be more statute driven, although presidential Executive Order can govern the ultimate treatment of documents.

Apparently, on his first day on the job, President Obama overturned President Bush’s order that had limited access to presidential papers. 

In Canada, Prime Ministers’ papers fall into two categories: government/institutional records and personal/political records. Former Prime Ministers receive tax credits for the value of the personal papers they donate to Library and Archives Canada. That value is not disclosed.

Similarly, in the U.S., some financial incentives exist for Presidents: in 2000, the Justice Department paid the Nixon estate $18 million to compensate for records seized in 1974.

In both cases, restrictions regarding the release of certain documents might apply. For example, apparently here in Canada, for 2.5 million records in the National Archives, one must write to Mr. Mulroney directly for permission. 

Have a safe, relaxing Canada Day.

Jonathan

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Many people, including myself, paused on learning of Michael Jackson’s death.   While I have not searched out his music for several years, his death marks the end of an era. 

Michael Jackson’s music is part of my memory of growing up. I attended his concert in October 1984 at the Canadian National Exhibition in Toronto.

Of course, in my role as an estate litigator, other thoughts also come to mind. Namely, what issues will arise in untangling Michael Jackson’s estate?

Some of these issues are addressed in a New York Times article. One executive describes the singer's estate as a "mess".  There are clearly valuable assets, including a 50 percent share of Sony/ATV Music Publishing which owns the rights to more than 200 Beatles songs; this asset alone may be worth more than $500 million.  Apparently these shares were not owned directly by the pop star, but rather by a trust controlled by his mother.  The shares therefore may not fall to Michael Jackson's  estate but they would be part of his legacy.

The estate has debts too: Neverland cost many millions of dollars to operate annually and in recent years there was a $24.5 million debt against the property. Some commentators estimate Michael Jackson’s overall debt to be $400 million. 

All of these issues – from copyright and real estate assets to Michael Jackson's personal and business loans – will take many months, if not years, to sort out.   

There were recent plans for a 50-concert comeback in London, England. Apparently fans had paid $90 million which will have to reimbursed and the concert preparations included payments for renovations to the venue as well as advance payments to Michael Jackson. 

As the administration of Michael Jackson’s estate unfolds, I suspect there may be more related topics to be covered in our blog.

Of course, for us regular folks, estate issues that we encounter in our own lives will be simple in comparison to the challenges faced by the Jackson family.  But there are some lessons: careful management of one’s affairs and good planning will lessen the load on named executors and estate trustees. 

Enjoy your Monday. 

Jonathan

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Today’s blog is the last in my series this week addressing certain aspects of preparation for trial in a contested passing of accounts.    The items discussed this week were certainly not meant to be, nor were they, exhaustive. Preparation necessary for a hearing/trial with narrow issues, few documents, few evidentiary concerns and an uncomplicated Estate will obviously be different than a case with numerous issues, voluminous documents, evidentiary issues and a complicated administration. The critical aspect of trial preparation is that it begins at the beginning of a case; not literally, but certainly in the sense of being mindful at pre-trial stages of the evidentiary considerations and how the evidence is to be marshalled and presented.

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Today’s blog is a continuation of my blogs this week addressing some aspects of preparation for a trial in a contested passing. I briefly touch upon transcripts, the Request to Admit and Witnesses today.

It is important in preparing for trial to review the transcripts of the examinations conducted to assist counsel with locating evidence in the transcripts during trial, including admissions and/or inconsistent statements made by a witness at trial, to address the completeness of questions on the examinations, and whether additional discovery is needed before trial.

If a damages brief is to be provided by the opposing party as a result of an undertaking at examinations or otherwise, ensure that it has been provided.

A party may also, further to Rule 51.02 of the Rules of Civil Procedure, at any time, by serving a Request to Admit, request any other party to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document. A copy of any document mentioned in the Request to Admit shall, where practicable be served with the request (unless a copy is already in the possession of the other party).

The opposing party must respond to the Request to Admit within 20 days, failing which the opposing party will be deemed to admit the truth of the facts asserted in the Request to Admit or the authenticity of the documents referred to in the Request to Admit. As such, the Request to Admit should be served at least 20 days before the commencement of the trial, and quite some time before that, if possible, so that counsel will know what facts need not be proved or the authenticity of documents that will not need to be proved.

There may be cost consequences if a party refuses to admit the truth of a fact or authenticate documents which are proven or authenticated during the trial.

Requests to Admit may be effective to: (i) reduce the facts in dispute, (ii) reduce the number of witnesses to be called and/or the examination of a witness, (iii) minimize the costs and length of the trial, and (iv) avoid having to authenticate documents.

With respect to witnesses, amongst other things, it is helpful to make a witness list of anticipated witnesses for each of the parties, prepare a chart of the issues/documents to be proved by each witness and identify and consider the concerns, evidentiary or not, with the evidence and documents to be dealt with by each witness. If the witnesses are experts, Rule 53 of the Rules of Civil Procedure is applicable. Summons to Witness need to be considered (Rule 53.04) as well as whether an Order excluding witnesses is necessary (Rule 52.06).

Thanks for reading.

Craig

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My blogs over the next three days will relate to certain aspects of preparation for the hearing of a contested passing of accounts. Today’s blog will touch upon the parties, the scheduling of the hearing, and the preparation of documents/productions for trial. 

The issue of whether all of the parties who ought to be involved in the passing are involved, and, if so, whether any of the parties who do not have representation need representation, must be considered. In considering who the appropriate parties are, or should be, the following questions might be asked: Are there self-represented parties? Have they been notified of all matters related to the proceeding? Has any party filed a Notice of No Objection to the accounts? Has anyone filed a Statement of Submission of Rights (if so, have they been served by the applicant/plaintff with written notice of the time and place of the hearing)? Is a minor involved (Rule 7.03(2), The Office of the Children’s Lawyer)? Is there an adult party who is disabled (Rule 7, The Office of the Public Guardian and Trustee)? Is a representation Order necessary (Rule 10)?

Regarding the scheduling of the hearing, an order of the Court for directions, or otherwise, at any pre-trial stage, or at the pre-trial conference might address same. It may be that the date of the trial, fixed in its length, is to be fixed by the Registrar on a date mutually convenient to the parties. If, on the other hand, the proceeding is to be set down for trial, Rule 48.01 of the Rules of Civil Procedure allows for the proceeding to be set down for trial after the close of pleadings and when a party is ready for trial. In any case, inquiries should be made with the Court office about where the trial is to take place to determine what, if any, forms need to be filed with the Court to confirm that the trial is to proceed.

Regarding the preparation of documents/productions for trial, it is critical that the documents in respect of the proceeding be organized prior to trial. If the documents necessary for the trial are not in counsel’s possession when preparing for trial, for whatever reason, they should be obtained prior to trial. Such documents include, but are not limited to, all pleadings, the estate accounts, certificate of appointment, prior Judgments for passing of accounts, all Orders regarding the passing of accounts, all Notices of Objections (and withdrawals), Statements of Submission of Rights, Consents/Releases of any party, Affidavits of Service, and the documents exchanged between the parties as a result of the Rules of Civil Procedure, any agreement of the parties, and/or Court Order. 

Issues of privilege regarding the documents should also be dealt with prior to trial.

Thanks for reading.

Craig 

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Listen to Taking Evidence Before Trial

This week on Hull on Estates Bianca La Neve and Natalia Angelini discuss taking evidence before trial. They talk about the procedure for witnesses who may not be available at trial, which involves preserving their evidence beforehand so it is available prior to the trial. 

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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In yesterday’s blog, I mentioned that the election of the Ontario Bar Association (OBA), Trusts and Estates Section Executive for the year 2009-2010 was confirmed at the Section’s year end dinner on May 28, 2009. 

Suzana Popovic-Montag is the incoming Chair of the Executive and I happen to be the incoming

Vice-Chair. The balance of the slate is as follows:

Past-Chair:                   Kimberly Whaley

Secretary:                      Ed Esposto

Members-at-Large:     Ann Elise Alexander, Clare Burns, Robert Coates, Vincent De Angelis, Shael Eisen, Jan Goddard, Eric Hoffstein, Danielle Joel, Sean Lawler, Mitchell Leitman, Jane Martin, Deborah Petch, Joanna Ringrose, Liza Sheard, Susan Stamm, Dina Stigas, Sender Tator, Ed Upenieks, Laura West and Melanie Yach.

I look forward to again working on the Executive and having a successful year.

Before turning the page on this past year, though, I would like to sincerely thank Kimberly Whaley for all of her efforts, hard work and counsel as the Chair of the Executive.

Have a nice day.

Craig

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The Ontario Bar Association (OBA), Trusts and Estates Section, year end dinner was held on May 28, 2008 at the Gardiner Museum in Toronto. 

Kimberly Whaley, the Chair of the Section for the past year, brought the past year to a close and the election of the OBA, Trusts and Estates Section Executive for the 2009/2010 year, was confirmed. 

The Section also paid tribute to this year’s recipient of the Award for Excellence in Trusts and Estates, Timothy Youdan.

The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates. The criteria for the award is demonstrated leadership in the trusts and estates bar through knowledge, experience, skill, commitment, passion and strength of character, plus all or some of the following:

·         academic excellence through teaching at the Bar Admission Course, lecturing at a law school, participating in Continuing Legal Education and/or academic writing;

·         participation in the OBA Trusts and Estates Section Executive or the Law Society of Upper Canada on wills, trusts and estate matters; and

·         contribution to the development of wills, trusts and estate law.

In addition to the Award for Excellence, C. David Freedman was presented with the Widdifield Award and Kimberly Whaley with the Hoffstein Book Prize.

Congrats to Tim, David and Kim. The venue, dinner and evening were all quite enjoyable.

Thanks for reading.

Craig

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Actually, reading this blog really will help you live longer.  One secret to living longer is to have a "higher purpose", according to researchers at the Rush Alzheimer's Disease Center (which is part of the Rush University Medical Center in Chicago).  Patricia Boyle, Ph.D. states in the news release announcing the study:

"The finding that purpose in life is related to longevity in older persons suggests that aspects of human flourishing—particularly the tendency to derive meaning from life's experiences and possess a sense of intentionality and goal-directedness—contribute to successful aging,".    

The study found a correlation between longevity and participant's level of agreement with 3 particular statements in a "Purpose of Life" questionnaire:

1. “I sometimes feel as if I’ve done all there is to do in life;”
2. “I used to set goals for myself, but that now seems like a waste of time;” and
3. “My daily activities often seem trivial and unimportant to me.”

Guess whether the correlation was positive or negative?  Or read the study here, when it becomes published (it's not posted yet, but this at least rates a reminder in Outlook) .  

TGIF and find purpose in your weekend.  You'll live longer.

Chris Graham

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The recent case of Re Henry (2009) CanLII 12329 (ON S.C.) is an excellent illustration of how a court scrutinizes evidence in a will challenge. 

In Re Henry, the deceased died on May 28, 2005.  Two weeks earlier, on May 12, 2005, he had made a Will designating his second wife as his sole beneficiary.  The deceased's son from a prior marriage challenged the will on the grounds of undue influence, lack of testamentary capacity and lack of knowledge and approval of the contents of the will.   

The trial judge found in favour of the second wife on all issues: due execution was shown, the deceased had testamentary capacity along with full knowledge and approval of the contents of the will.  The challenger's evidence, which consisted largely of his and his sister's testimony, did not bear scrutiny: some of it was inadmissible, testimony appeared reconstructed as opposed to remembered, testimony contained factual inconsistencies, legal submissions contained errors of law and so on.  By contrast, the evidence brought by the second wife was accepted in whole.

No new law is generated in Re Henry, at least not per se.  But there is a concise consideration of the applicable standard of proof which will be helpful for any lawyer making submissions regarding evidence in a will challenge.  Newbould J. points out that the principle in Vout v. Hay, [1995] S.C.R. 6 that evidence of suspicious circumstances must "be scrutinized in accordance with the gravity of the suspicion" may no longer be good law as a result of F.H. v. McDougall, 2008 S.C.C. 53.  F.H. v. McDougall states "[t]here is only one legal rule and that is in all cases, evidence must be scrutinized with care by the trial judge."  So which is it: Vout v. Hay or F.H. v McDougall? 

Having laid out the jurisprudence, Justice Newbould states:

"I need not decide in this case whether the passage from Vout v. Hay that I have referred to is still good law because in my view the evidence is the same regardless of whether the evidence is scrutinized with greater care in accordance with the gravity of the suspicious circumstances.  I have taken care to scrutinize all of the evidence".

Have a great day,

Chris Graham

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Listen to Knowledge Management

This week on Hull on Estates Paul Trudelle and Sharon Davis discuss Knowledge Management; what it is and how it can assist lawyers and clients. 

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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While the global financial system totters, unemployment soars, government deficits shatter records set during the Cold War era, towns and communities fight for their lives, the global trade system appears threatened, our lifestyle looks to be set for major changes, it is reassuring to know that trust law marches on.

The states of the Great Republic to the South maintain their composure like Cool Hand Luke, calmly assessing the great issues of the day (for trust lawyers) and knocking them down like ducks at a carnival. To wit: Connecticut is set to become the forty-first state to pass a statute for pet trusts (my colleague Megan Connolly blogged on Maryland's pet trust law here).  California made time to pass its own highly evolved Pet Trust Statute last year.  Here’s a link to Pet Trust Law Blog, which has a broad range of resources on Pet Trust Law.

Ontario has yet to divert its attention to such measures.  Estates lawyers would like very much to see legislation making it possible for lawyers to meet their clients' wishes to provide for their beloved Rovers, but it appears that we may have to wait with baited breath.

Have a great day,

Chris Graham

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Compensation is a factor in every estates file.  The Divisional Court recently confirmed in Church v. Gerlach (2009) Court File No.: DC-07-0038-00 (Div.Ct.) that compensation for an estate trustee during litigation ("ETDL") is determined by the same principles as compensation for executors generally.   Compensation for an ETDL is not determined by applying a solicitor's hourly rate to the time spent.  

In Church v. Gerlach, the ETDL was appealing the trial judge's fixing of compensation at $13,000 inclusive of GST.  The ETDL asked for $23,203,54 plus costs.  The ETDL had originally claimed $35,805.30 plus $2,973.30 for the costs of the application. 

The general provision authorizing compensation to ETDLs is s. 28 of the Estates Act: the ETDL "shall receive out of the property of the deceased such reasonable compensation as the court considers proper".  Section 61 of the Trustees Act authorizes "such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about the estate, as may be allowed by a judge of the Superior Court of Justice." 

According to Ontario's Court of Appeal in Liang Estate v. Hines (1998) CanLII 6867 (ON C.A.), 41 O.R. (3d) 571, the proper approach is to start by applying percentages to the estate (customarily 2.5% of capital receipts and disbursements, 2.5% of income receipts and disbursements, and an annual care and management fee of 0.4% of gross value of the estate).  Then, each percentage is considered against five factors enumerated in Re Toronto General Trusts Corporation and Central Ontario Railway (1905), 6 O.W.N. 350 (H.C.):   

1.  the magnitude of the trust;

2.  the care and responsibility springing therefrom;

3.  the time occupied in performing its duties;

4.  the skill and ability diplayed; and

5.  the success which has attended its administration.

Applying this approach, the ETDL was awarded half of the usual percentages: he ought not to be fully compensated as if he was required to perform all of the functions of an Estate Trustee, and the reduction also took into account the complexity of the estate. 

As a general practice note on costs of appeals, while the ETDL had paid his lawyer more than $15,000 to prepare the appeal, given the amount in dispute, the relatively simple issues on appeal and the reasonable expectation of the appellant ETDL, costs were fixed at $5,000 all-inclusive.  

The Divisional Court also noted that the standard of review for appeals under s. 10 of the Estates Act on a question of law is correctness.

Have a great day,

Chris Graham

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Beauty from sadness: DNA2Diamonds, LLC is a company that creates personal diamonds using the DNA of a loved one.  That can be a spouse, pet, dear friend or even an entire family.  The company takes a hair sample and uses it to grow the diamond from the DNA signature carbon in the hair.  The deceased's cremated remains can also be used.  According to DNA2Diamonds, the laboratory-produced diamonds are optically, physically and chemically identical to Earth-mined diamonds.

One particularly poignant story was reported in a Toronto Star article where a husband and wife, having lost their baby son shortly after his birth, contacted DNA2Diamonds to create an eternal memento to their son's too-short life. 

This being an estates law blog, I must spoil the tranquility by pointing out that for estates planners, there's potential for a new set of issues to grapple with.  Executors have general authority and discretion to deal with the deceased's body, subject to the usual bevy of qualifications and exceptions the Common Law generates.  How would this principle be applied in the case of a Will directing the creation of a precious gem from the testator's remains?     

Enjoy your week,

Chris Graham

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Death planning now includes options like buying your coffin at your favourite retailer, purchasing jewellery keepsakes that hold a loved one's ashes, and even treating mourners at your funeral to ice cream.

For my final blog of the week, I thought that it would be appropriate to discuss Death Planning. In my limited experience, I recognize an ingredient of success is the ability to adapt to change.   Changing ideas about traditional funeral and burial practices are bringing change to this industry. A recent article in the New York Times by Gabrielle Glasser discusses personalizing your funeral service. 

Despite being in financially weary times, Glasser notes that your funeral is your last chance to be a big spender. Peter Moloney and his six brothers own six funeral homes on Long Island and have catered to customers who wish to have a customized send-off. For instance: “Bike lovers pay an extra $200 or so to take their last ride in a special hearse towed by a Harley-Davidson motorcycle. Gardeners select wildflower seed packets to include with their funeral programs. One gentleman wanted to be remembered for comforting his grandchildren with ice cream, so, after the funeral, mourners were greeted by a man in a Good Humor truck, handing out frozen treats.”

I have yet to hear of a funeral home that caters to customized send-offs north of the border, but I presume that we may be a little bit more reluctant to abandon our traditional religious funerals in favour of secular ceremonies.

Before I sign-off, I would like to point out that tonight is the final game of the Stanley Cup Playoffs. Two of the greats will be playing tonight for Pittsburgh, Sid the Kid and Evgeni Malkin. If you tune in tonight, I am sure that you will get the opportunity to see them outskate the older, and slower Detroit Red Wings. Looking on with anticipation…

Go Pittsburgh!

Rick Bickhram

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Listen to Social Media and Being Specific Wrap-up

This week on Hull on Estate and Succession planning Ian Hull and Suzana Popovic-Montag begin their discussion by relating Star Trek to social media in terms of technology, costs and viewer/reader feedback. They continue on with a wind-up of their Being Specific series and discuss the last stage of how things unfold. Finally, Suzana mentions a blog post relating to costs from the New York Probate & Estate Litigation Blog by Philip Bernstein.

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

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Being immersed in the world of law, we're constantly confronted with upsetting and often depressing stories.  It feels good to occasionally resurface to hear about a positive story.  

In the London Evening Standard, David Cohen writes about the new queen of Soho, a 23 year old, named Fawn James.  For those of you who are not familiar with the area, Soho is located in the centre of the West End of London, England, in the City of Westminster.  

Fawn James inherited £75 million from her grandfather Paul Raymond, who was well known as Soho's property tycoon.  Paul died approximately one year ago.

In his article, Fawn James is described in a manner that we can all relate to at some point in our life, a student living on a budget.  One year later, Fawn is £75 million richer and both her and her family now controls 60 of Soho's 87 acres.

In her first interview since inheriting her grandfather's treasure chest Fawn says that her "first mission will be to make Soho greener.  We're looking at retrofitting our entire stock of buildings to make them more environmentally friendly".   She's also committed to her community, "I think it's important to support charities operating Soho and in the coming months I'll be assessing which one we want to assist."  As she reflects back on her time with her grandfather her only concern now is "to make him proud".  

Thank you for reading,


Rick Bickhram

 

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An article published in The Columbus Dispatch, an Ohio publication, shows us how vulnerable seniors can be to fraud through the purchase of financial products that are technically legal but not in their best interest.

An 83 year-old woman had her life savings placed in an annuity but was subsequently solicited to cash in her existing policy and buy a new one. The 83 year-old suffered from partial blindness as a result of diabetes, dementia and she had recently moved into a nursing home. After being convinced to purchase a new annuity, the woman died two weeks later. She received one monthly payment of $1,500 before she died. 

The beneficiaries of her estate received half of what they thought they should have from the new annuity and sought to recover from the investment company. The arbitration panel of the Financial Industry Regulatory Authority sided with the deceased’s estate and awarded the beneficiaries of her estate compensatory damages.

The article states that this is not an uncommon practice. In January 2008, the Financial Industry Regulatory Authority fined the broker $225,000 for “making unsuitable sales of deferred variable annuities to 23 customers”. 

Annuities can be great investments, but BUYER BEWARE. If there are questions about the age and health of the potential purchaser, it may not be in their best interest to purchase the annuity.

Thank you for reading,

Rick Bickhram

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Listen to The Estate Trustee During Litigation

This week on Hull on Estates Megan Connolly and Craig Vander Zee discuss the topic of the estate trustee during litigation (ETDL). Their discussion is based off a paper Paul Trudelle prepared and spoke about at the Hull and Hull breakfast series on June 4, 2009. They look at the circumstances when you would need an ETDL, the procedure for appointing the ETDL and the powers and duties of the ETDL.

For more information on this topic, see:
Jordan Atin's article, The Estate Trustee During Litigation, in 'Estate Litigation' by Brian A. Schnurr. volume 2. 2nd ed. (Toronto: Thomson Carswell, 2000)

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 Ontario Lawyers Gazette recently published a helpful article titled “Succession Planning Protects You and Your Clients”, which reminds licensees of the importance of planning for the future.

According to a 2006 survey, 80% of sole practitioners do not have a plan detailing who would service their clients in the event of their death or incapacity. This is an alarming number of sole practitioners who are putting themselves at unnecessary risk.

Under the provisions of the Law Society Act, the Trustee Services department of the Law Society may intervene in a practitioner’s practice and obtain a variety of orders which would have the effect of winding up the practitioner’s practice in the event that the practitioner became incapacitated or deceased. Margaret Cowtan, manager of Trustee Services states that “it can be a very intrusive and often expensive undertaking if Trustee Services is required to resort to an order to enable a practice to be wound up.” 

One alternative that we can consider in planning for our future is to “name a licensed lawyer as a limited trustee in their wills for the sole purpose of winding up the practice. By appointing another lawyer as a trustee for the purposes of the practice, on death, that lawyer can not only take professional responsibility for the trust account and make appropriate distributions to clients he or she can review client files, continue matters should clients elect to engage them, or return files to clients as appropriate.” We can also give signing authority on the trust account to another lawyer in the event of an emergency. Only licensed lawyers or paralegals are permitted to deal with trust accounts.

If you are interested in learning more about planning for your future, please click the following link which will take you to the Law Society’s Succession Planning Toolkit.

Thank you for reading,


Rick Bickhram

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 As an aging society, we are likely to see an increase in issues surrounding abuse of our elderly. Just simply take a look at our recent estate and trust literature and you will notice that there has been an increase in articles about elder law. 

Recently, I read an article labeled “Putting the Brakes on POA Fraud.” This article can be found in Briefly Speaking which is the official magazine of the Ontario Bar Association. The article is authored by David Freedman, who is an associate professor at Queen’s University faculty of Law.  In his article, Professor Freedman looks at the common situation in which elder abuse is likely to occur wherein he states: “The prototypical example is the situation in which the elderly parent resides with one child who is to take principal responsibility for the parent’s care and who has been given a POA by the parent over his or her assets. Perhaps it is the siblings or a third-party care-giver who complains about the exercise or non-exercise of the POA, but there are many cases in which the assets are misappropriated.” Of course there is a strong public interest in protecting our elderly against financial exploitation, but what can we do?

For those of us who practice in this area of the law, how often have we heard of a family member approaching the police  to make a complaint about an elderly person who has been taken advantage of and being told “it’s a civil matter”? False. Section 331 of the Criminal Code of Canada addresses the issue of “Theft by a Person Holding a Power of Attorney.” In addition to the Criminal Code, there are civil remedies that are founded on the principles of restitution. Professor Freedman states that regardless of the type of case (criminal or civil) “the interest is the same, stripping the wrong-doer of any illicit gain and restoring the victim as much as it is possible to do in the circumstances.”

Thank you for reading,

Rick Bickhram

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Pre-nuptial Agreements, Co-habitation Agreements, Marriage Contracts and Separation Agreements can make for added complexity in any estate dispute.  Considering the disproportionate rate of estate litigation in families were there have been second marriages (or spousal relationships), it is inevitable that such contracts will continue to impact our practice.

In the recent edition of the Trust Quarterly review published by STEP, the authors of a paper note that "Pre-nuptial agreements are currently not legally binding in England and Wales, but can be taken into account as one of the circumstances of the case."  In contrast, the authors note that agreements made after the date of marriage are likely to be binding, subject to the principles of contract law. 

In Ontario, claims advanced under Part V of the Succession Law Reform Act are evaluated based on the existence of a number of factors including, under section 62(1)(m), "any agreement between the deceased and the dependant."  Certainly there appears to be a trend towards more careful drafting of agreements which may involve the parties contracting out of statutory entitlements they may assume on the death of the other.  Given the gravity of contracting out of such significant entitlements, any challenge to such a contract must consider such factors as: (i) the existence of ILA; (ii) the degree of disclosure; and (iii) the presence of any degree of coercion, to name just a few.

Have a great weekend!

David M. Smith 

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Listen to The Decision of Justice Brown

This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss the recent decision of Re Pearsall .

In this decision, Justice Brown offers clarification on the issue of where applications involving estates may be commenced.

Paul Trudelle has  previously written a post about the decision.

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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Our first house together was a rental duplex in High Park. We knew something was awry when we collected the mail from the common mailbox one afternoon and saw that first letter. It was from the Attorney General’s office and was addressed to the neighbour who lived upstairs. Over time, the letters increased in frequency; the envelopes became increasingly colourful and the font size of the word ‘URGENT’ also ballooned to quite incredible proportions. That was 15 years ago, and we periodically wonder if he’s still on the lam from the law. So when I recently saw a link on the Toronto Star website to an article entitled, “Next Door to Trouble: Neighbours as Nightmares”, I was tickled by the prospects of reading about the camaraderie of the shared experience of the nightmare neighbour.

The article waded through the usual neighbourhood conflicts of noise (parties, pets), garbage, and other common by-law violations such as too-tall fences, too-long grass and too-overhanging trees. But the meat of the article, and by far the most entertaining portion, referred to a number of websites designed to help one navigate the muddy waters of personal relationships, whether they be at home, in the community, or at work. Ahhhh – now we’re cooking with gas.

First up is civilityexperts.com, a Winnipeg-based website offering seminars and tips ‘aimed at fostering respect and communication’. Some 10 percent of the emails it receives are related to bad behaviour in the ‘hood, citing the example of the family who returned from vacation only to find the neighbours in their pool. The Americans have rottenneighbour.com while the Brits have Neighbours from Hell. These websites serve as ‘early warning systems’ for those in the market for a new home. Clever. New, from the creator of civilityexperts.com is youresorude.com, a website that charges a very affordable $2 to send a nasty anonymous email to your neighbour on your behalf.

We’ve moved around a lot since High Park and now count ourselves blessed that our worst complaint about our neighbour is that he has the best damn lawn on the block.

Jennifer Hartman, Guest Blogger
 

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Listen to Being Specific About Costs

This week on Hull on Estate and Succession Planning, Ian and Suzana get into specifics regarding costs.
They discuss specific illustrations where motions can arise; both strategic motions and those that can be predicted and look into why costs may be so high.

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 BBC recently reported on a case in which an actress appealed from a decision of the High Court, seeking CDN$1.6 million from the estate of a 92-year old deceased woman who had left her a mere CDN$5,000 in her estate.  The claimant alleged that the deceased had been in a lengthy lesbian relationship with the claimant's mother and treated the claimant as her own daughter.  The Court of Appeal dismissed the appeal, apparently concluding that she was not a dependant. (As an aside, the fact that the actress was noted to be the former wife of director Ken Russell apparently made the case newsworthy).

As has been noted in numerous past blogs, the common law recognizes various arguments that may be advanced against estates.  In Ontario, a claim under Part V of the Succession Law Reform Act is the clearest example of the legislature recognizing obligations that can be binding upon and enforceable against estates, trumping even testamentary intention.

But of course, testamentary intention does matter where a claimant advances an argument based not on allegations of dependency but, rather, on allegations that he or she falls within a class of relative of the testator.  Where, for example, a testator leaves his or her estate to "nephews by blood", a claim advanced by one who claims to fall within that class on the basis of the nature of the relationship (rather than being a blood relative) will almost certainly fail to oust such clear evidence of a contrary intention. 

David M. Smith

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On April 7, 2009, I blogged on the decision of Justice Strathy in Richardson (Estate Trustee of) v. Mew.  In that decision, His Honour considered the situation where a deceased’s first spouse was unexpectedly the named beneficiary of a life insurance policy owned by the deceased, the second spouse seeking to remedy what she argued to be an unjust situation. As I noted, His Honour, while not exercising his jurisdiction to rectify the policy, left open the possibility that, in the right set of circumstances (i.e. clear evidence of a mistake), the court could properly employ such a remedy.

The Ontario Court of Appeal released a unanimous decision on May 14, 2009 upholding Justice Strathy's decision.  Of particular significance to the trusts and estates bar, the Court of Appeal clearly stated that, after the mental incapacity of the donor, the attorney under a power of attorney was not permitted to change a beneficiary designation even in circumstances where there was compelling evidence that the donor would have done so if capable:  "As a fiduciary in a role rising to that of trustee, [the second wife] was bound to use the power only for Mr. Richardson's benefit."

In commenting on the case, The Lawyer's Weekly has noted that counsel for the disappointed second wife is seriously contemplating an application to the Supreme Court of Canada for leave to appeal.  In question: is there ever a situation in which the attorney under a Power of Attorney ought to have power to act in the best interests of the donor to effect a testamentary disposition that accords with his or her last known intentions before becoming incapable?

David M. Smith