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 can be easy to tell your children what to do ... when they're still young.  Its not quite so easy as they grow up and leave the nest - both from a practical and legal perspective.  Have you thought about whether your university-aged child is fully prepared in the event of a medical emergency?  Can you, as a parent, get access to medical information on behalf of your child who is over the age of majority?  This concern, particularly in the context of mounting fears over the spread of the swine flu (H1N1) virus, was considered recently here, and is worth some discussion in the context of our own provincial laws.

In Ontario, once a child has reached the age of majority (18 years), they have the full legal privileges and responsibilities of an adult in most matters.  This means that parents cease to have legal authority over their child's financial decisions, despite the fact that the child may still be dependent on them in some respects (i.e. attending college or university).  With respect to medical matters, while Ontario's Health Care Consent Act provides that a person who is capable and has attained the age of 16 years has the capacity to give advance instructions, there is no specific age for consent.  Any child is presumed to have capacity to give or refuse consent.  

In Ontario, we have several related estate planning documents to consider in these circumstances.  First, the Continuing Power of Attorney for Property is a written authorization given by someone (the grantor) to a person (the attorney or attorneys) who is entitled to do anything on the grantor's behalf in respect of property that the grantor could do if he or she were capable, except make a will.   The Power of Attorney for Personal Care is a written authorization given by the grantor to an attorney who will make personal care decisions regarding health care treatment, if he or she is unable to do so. 

So, although you may not be able to sway your adult children either way on the issue of whether or not to vaccinate, it would be wise to ask them to consider signing powers of attorney, so that parents are authorized to make medical and financial decisions on their behalf in the event of an emergency.     

Sarah Hyndman Fitzpatrick

Sarah Hyndman Fitzpatrick - Click here for more information on Sarah Fitzpatrick.

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Mark your calendars now for the upcoming 12th Annual Estates & Trusts Summit, scheduled for November 12th and 13th, 2009 in Toronto.  This program, organized by the Law Society of Upper Canada, has been described as "vital for anyone carrying on an estates practice".

Spanning two days, the program is structured as follows - "Day One" deals with issues surrounding estate planning in recessionary times; and "Day Two" considers the impact of the current economic climate on estate litigation.  Specific topics include (note that the list is not exhaustive and is subject to amendment):    

• Estate Planning in Recessionary Times
• US/Canada Cross-Border Planning
• Essential Charity Law Update
• Creating Insurance Trusts to Minimize Probate Tax on Life Insurance
• The Exercise of Trustee Discretion
• Constructive Trusts and Quantum Meruit
• Standard of Care and Will Drafting
• Duelling Powers of Attorney
• Latest Costs Issues
• Representing the Incapable Person
• Estate Trustees During Litigation (ETDL’s) –Alternatives to Corporate Trustees

So, if you plan on attending or viewing the live webcast from your home or office, register now here.  Hardcopy materials for anyone interested will also be available for sale after the conclusion of the program.

Sarah Hyndman Fitzpatrick

Sarah Hyndman Fitzpatrick - Click here for more information on Sarah Fitzpatrick.

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A little knowledge goes a long way.  In the context of insurance policies and your overall estate plan, understanding the nuances of a testamentary insurance trust can provide enormous benefits down the road.  Simply taking out insurance on your life - or even naming a specific beneficiary other than your "estate", does not by itself capitalize on the various benefits that may be available by the creation of  testamentary insurance trust.  Proper use of an insurance trust can ensure that the proceeds do not form part of the residue of your estate, but may still be dealt with in a way that is consistent with your overall testamentary objectives. 

This issue is front and center for experienced estate planners, and as such has been dealt with in various contexts on our blog here and here. 

Tim Cestnick, writing for tax matters in a recent article for the Globe and Mail, reminds us of the benefits of creating a separate testamentary insurance trust with life insurance proceeds.  The article, entitled "Your Heirs Will Thank You", highlights six benefits to the insurance trust:

1. Managing distributions to minors;
2. Protecting insurance proceeds from creditors;
3. Tax savings for beneficiaries;
4. Avoiding probate fees on insurance proceeds;
5. Privacy can be attained; and
6. Preserving provincial disability benefits.

One further caveat.  Although not binding in Ontario, a recent Saskatchewan case (Re Carlisle Estate) has created some trepidation for estate planners on the issue of using an insurance declaration in your Will, as opposed to outside of your Will (i.e. by means of a separate declaration).  Until there is some indication as to how this will impact the law in Ontario, make your intent clear by ensuring that the proceeds do not vest in your executor as beneficiary, but are rather held by the executor in trust for the designated beneficiaries.

Sarah Hyndman Fitzpatrick

Sarah Hyndman Fitzpatrick - Click here for more information on Sarah Fitzpatrick.

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Listen to: Power of Attorney - Part 3 - Hull on Estates and Succession Planning #184

This week on Hull on Estates and Succession Planning, Ian Hull focuses on the importance of capacity assessments.

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

Ian M. Hull - Click here for more information on Ian Hull.

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Last week, Mr. Justice Brown released an Endorsement involving an Application for Confirming of Resealing of Appointment, in which he directed the Estates Registrar to offer to Applicants for Certificates of Appointment the option of communicating with the Estates Office by e-mail.

Lawyers with experience in obtaining Certificates of Appointment of Estate Trustee (and other related probate documents) are familiar with the standard form corrections notice issued by the Toronto Region Estates Office, and the inherent delays that may result from dealing with such correction notices.  Refer to our firm blog (by Natalia Angelini) and podcast (by David Smith and me) for further information on this issue.  The practice to date has been for the Toronto Estates Office to send a standard form corrections notice to the Applicant which identifies the deficiencies in the filed materials.  Frequently there arises a back-and-forth between the Applicant and the Estates Court via regular mail while the Applications are rectified and processed. 

The issue before the Court on this matter was whether the Toronto Region Estates Office could communicate by e-mail with Applicants for Certificate of Appointments to inform them of their corrections, and to receive corrections from them.  As Mr. Justice Brown remarked in his Endorsement, the Court is relying on "snail mail" to conduct its business in 2009.  He suggested that real access to justice requires the provision of a variety of ways to communicate, and; "more fundamentally, the time has come to recognize the stark reality that our court ...  lags unacceptably behind in the use of electronic communication with our court users".  The Court concluded that it could not find anything in the Rules of Civil Procedure prohibiting reliance on electronic communications, and therefore on a "go forward" basis the Court should offer every Applicant the option of communicating by e-mail with the Toronto Region Estates Office in respect of corrections to deficiencies in the Application. 

The Rules of Civil Procedure should be interpreted to secure the "most expeditious" determination of every civil proceeding (Rule 1.04(1)).  This welcome and progressive initiative should go a long way towards realizing that objective.

Sarah Hyndman Fitzpatrick

Sarah Hyndman Fitzpatrick - Click here for more information on Sarah Fitzpatrick.

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Listen to:  Unworthy to Inherit - Hull on Estates #185

This week on Hull on Estates, Bianca La Neve and Natalia Angelini discuss a recent application to declare a Beneficiary unworthy on inheriting an estate.

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

Bianca V. La Neve - Click here for more information on Bianca La Neve.

Natalia R. Angelini - Click here for more information on Natalia Angelini.

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An Italian Prince and Princess are squabbling over their late mother's inheritance, which includes an extensive art collection with works by Caravaggio and Raphael, and a palace in Rome.  The sister (Princess Gesine) has asked an Italian Court to exclude her brother's (Prince Jonathan) children as heirs because his children were conceived with surrogate mothers and she does not "approve" of his homosexual lifestyle.  The Irish Independent has reported on the story and has indicated that under Italian law, the surrogate children "are not recognized and have no legal rights on the family fortune".  Read more about the story here. Notably, the Prince and Princess themselves don't have royal blood but were rather "plucked from obscurity" and adopted from a British orphanage by their Italian Princess mother.

In Canada, adoption is a matter of provincial jurisdiction and according to s. 158(2) of the (Ontario) Child and Family Services Act once an adoption order is made, the child becomes the child of the adoptive parent, and ceases to be a child of the person who was his or her parent before the adoption order was made.

Wills in Ontario frequently provide clauses excluding children born outside of marriage, as both persons born inside and outside of marriage are entitled to share equally in an estate (s. 1 of the Succession Law Reform Act and s. 1(1) of the Children's Law Reform Act ).  Therefore, it is not uncommon to include a clause excluding illegitimates, if the person making a will has a contrary intention to what is mandated by the existing legislative framework.  Practically, an exclusion of illegitimates clause in your will can also make the life of a trustee a little easier by narrowing the scope of inquiry for members of class gifts that may be illegitimate (which can be costly and time consuming).  However, this kind of clause may have the undesired effect of excluding children born of common law relationships.  Including a further clause, to the effect that an exclusion clause shall not apply where the parents have demonstrated a "settled intention" to treat such person as a "child" of the union, can help to avoid such unintended consequences.

Sarah Hyndman Fitzpatrick

Sarah Hyndman Fitzpatrick - Click here for more information on Sarah Fitzpatrick.

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Listen to:  Selecting an Estate Trustee - Hull on Estates #184

This week on Hull on Estates, Paul Trudelle and Sarah Fitzpatrick discuss considerations relevant to the testator's selection of an Estate Trustee when preparing a Will.

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

Paul E. Trudelle - Click here for more information on Paul Trudelle.

Sarah Hyndman Fitzpatrick - Click here for more information on Sarah Fitzpatrick.

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The Rules of Civil Procedure are the the Barrister’s Bible. While we may not keep them on our bedside tables, they can be found on every good litigator’s desk as well as scattered throughout the office in strategic locations. 

As lawyers, we generally have good memories for anything logical or analytical –  case names can be remarkably pulled out of a hat at a moment’s notice. Not quite so for the Rules. Why? Because they aren’t always self evident or logical, especially when they work in tandem with other legislation that qualifies or expands on them. For example, did you know that a person who is “incapable” can, nonetheless, be “competent”?

Under Rule 31.03 (5)(b) a person who has been declared incapable of looking after their property or personal care pursuant to the Substitute Decisions Act may be examined if he or she is competent to give evidence. 

There is a prima facie right to examine an adverse party pursuant to Rule 31.03(1). All persons are presumed competent to give evidence pursuant to section 18 (1) of the Evidence Act. This presumption is rebuttable by sufficient evidence to the contrary. The onus rests on the party alleging incompetence to establish that the witness has no capacity to perceive, recollect and communicate evidence in the proceeding. (See R. v. Caron, 1994CanLII 8735 (ON CA) The evidence required for a determination of incompetence is medical evidence from a person qualified to speak with authority on the subject.   

In Trypis v. Lavigne, 2008 CanLII 26266 the Ontario Superior Court sets out the general principles applicable to the issue of competency of a party to give evidence. Trypis is twist in the other direction whereby a person who was “capable”, in that there had not yet been a finding of incapacity under the SDA, was found “incompetent” to testify.

If you’d like to see more on the subject, see Natalia Angelini’s blog, The Right to Examine Incapable Persons and Minors.  

Have a super weekend and thanks for reading this week.

Sharon Davis

Sharon Davis - Click here for more information on Sharon Davis.

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Client satisfaction is a tricky maze to navigate. In some ways, we are most successful as lawyers when clients on both sides are equally dissatisfied. The object of the game is to settle on a solution that is fair to all concerned. This necessarily means that no one side is going to get the key to the city and the pot of gold at the end of the rainbow.

That said, we risk great lawyer dissatisfaction if our clients do not refer us to others or come back when the need arises. 

In "Three Secrets to Effective Communication"   Walter Bristow, a US lawyer who practises estates law (amongst other things) says that to convince people to act or buy a service we need to:

• Involve them by asking questions, not simply tell them the law or what we think;
• Motivate by telling an illustrative story that engages them and evokes their curiosity; and
• Use analogies to turn the abstract into something tangible - he gives an example of how to explain a trust as akin to a warehouse with trustees as security guards 

Most people make decisions based on emotion. Advertisers already know this - I'll bet you've seen an ad or two with kittens or babies in them. How, then, do we constructively harness this knowledge with a view to providing client satisfaction and excellent service in the legal industry?  At the end of the day, it is not how a client does, but how he or she feels that will determine the level of satisfaction and the number of referrals sent our way. Since clients are usually human, this just might have very little to do with the relative degree of success in court. 

So, the next time you get a phone call or e-mail from a client, try responding just a little quicker than usual and make someone's day!

Sharon Davis

Sharon Davis - Click here for more information on Sharon Davis.

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On Monday I wrote about the importance of mentoring. Today I’d like to illustrate. A November 2008 report by former Superior Court Chief Justice Patrick LeSage and University of Toronto law professor (now Superior Court Justice) Michael Code questioned the adequacy of sanctions for courtroom misconduct.

Up until recently, judges had two options to deal with inappropriate behaviour in the courtroom: a finding of contempt or referral to the Law Society of Upper Canada for possible disciplinary action. Out of the Code/LeSage report has come the recommendation and recent implementation of mentoring as a third option for behaviour not serious enough to merit disciplinary action.

Mentoring has traditionally been a learning mechanism that is completely voluntary, in that it is sought out and arranged by mentor and mentee on a more or less informal basis. Mentoring is taken to the next level with the new LSUC Mentoring Referral Protocols, which invite Ontario Court and Superior Court judges to identify lawyers in need of mentoring. 

Requests go to LSUC’s CEO, Malcom Heins. If mentoring is considered an appropriate response, the lawyer will receive a letter identifying the impugned behaviour together with a consent form. If the lawyer accepts mentoring, he or she will be referred to the Advocates Society, the Criminal Lawyers Association or the Ministry of the Attorney General to be paired with an appropriate mentor in his or her area of practice. For more information see this article in The Lawyer’s Weekly.  

Many legal organizations offer mentoring on a casual, as needed or ongoing basis. Here are some for your reference, should you wish to be a mentee or a mentor:

1. The Advocates' Society
2. The Criminal Lawyers' Association
3. The Law Society of Upper Canada
4. The Ontario Bar Association
5. The Women’s Law Association of Ontario

It is worth noting that although our regulator has reponsibility for those amongst us who do not act as we should, LSUC’s Mentorship Program extends far beyond the Mentoring Referral Protocols. It is comprised of three initiatives that match volunteer lawyers with those interested in becoming lawyers; students-at-law to provide assistance and advice with their careers; and practising lawyers in general need of advice.

Happy Mentoring!

Sharon Davis

Sharon Davis - Click here for more information on Sharon Davis.

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Litigation lawyers live in fear and sober respect of the limitation period. We all know that missing a statutory limitation period can be the kiss of death. Given the right circumstances, however, there is one light in the dark that can overcome the shadow of both statutory limitations and common law laches arguments.

Fraudulent concealment is a common law doctrine that operates in equity to defeat  limitations defences where:

1)      The defendant and plaintiff are engaged in a special relationship with one another;

2)      Given the special or confidential nature of their relationship, the defendant's conduct amounts to an unconscionable thing for the one to do towards the other; and

3)      The defendant conceals the plaintiff's right of action, either actively, or as a result of the manner in which the act that gave rise to the right of action is performed.

Fraudulent concealment is not a rule of construction like the discoverability rule. It is an equitable principle that prevents a limitation period from operating “as an instrument of injustice”. It is aimed at preventing unscrupulous defendants who stand in a special relationship with the injured party from using a limitation provision as an instrument of fraud. See Giroux Estate v. Trillium Health Centre, 2005 CanLII 1488 (ON C.A.)

The fraudulent concealment necessary to postpone a limitation period need not amount to deceit or common law fraud. It is sufficient if the conduct, having regard to some special relationship between the parties, is an unconscionable thing for the one to do towards the other. See Guerin v. The Queen, [1984] 2 S.C.R. 335

For more information on limitation periods and an excellent in-depth analysis of the effect of the Limitations Act, 2002, see Anne Werker, “ Limitation Periods in Ontario and Claims by Beneficiaries” (2008) 34:1 The Advocates Quarterly, 1.

Perhaps now would be a good time to take a minute to check on a few limitation periods - just in case!

Sharon Davis

Sharon Davis - Click here for more information on Sharon Davis.

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Last week Lexpert held the inaugural event for its Zenith Awards Celebrating Leading Women Lawyers. In a room sparkling with cool acrylic chairs and brilliant crystal chandeliers, brighter still shone the accomplishments of the 23 extraordinary women who were honoured for their outstanding achievement in the legal profession. Click here to see the list of recipients and to learn more about the Zenith Awards. 

Award winners were surrounded by the women and men who supported them throughout their careers and continue to do so. Navigation of the labyrinth takes dedication, smarts and resolve, true; but a little help can’t hurt every now and then. Support from peers is a gender neutral need that is undiminished by the passage of time or the accumulation of awards. In recognition of the necessary value of that support, at the heart of the Zenith Awards was the dedication of the recipients to mentoring. Honourees were paired with young women who, over the next year, will benefit tremendously from their mentor’s experience, support and network. 

Mentoring is not only a useful “nice-to-have” for Mentees; it is the fundamental component of excellence in the profession. We have a collective obligation to our peers and society to provide the guidance and support required to ensure we continue to flourish as a respected profession.

Many thanks to Lexpert, a Thomson Reuters Business, Editor-in-Chief extraordinaire Jean Cumming, and the incomparable Paula Todd, Emcee, for providing a spectacular evening of celebration.

A little motivation for a "Mentoring Monday" as you start your week!

Sharon Davis

Sharon Davis - Click here for more information on Sharon Davis.

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Whether it's technology or tv trends, Japan seems to be light years ahead.  And we play catch-up (ok, not so with the stupid game shows).  Japan's median age is 43.5, Canada's is 39.1.  But since Japanese live longer (life expectancy of 82.12 versus Canada's [still respectable] 81.23), we're really only a few years behind.  So what can we learn from their population, which is a few years ahead of ours in dealing with an aging population?

The answer is: forget about cars, dvd players and even robots.  Funerals are very, very big business in Japan.  According to this Bloomberg article, the Japanese funeral industry is worth US$18 billion.   Last year, 1.14 million Japanese died, and funeral companies charge about $26,094.62 per funeral.  By 2040, 1.66 million will be dying every year.  Future growth is in death, and as Bloomberg notes, "everyone from railway companies to retailers wants a slice."   Funeral companies are stampeding towards Japan.

Unfortunately, things won't be so rosy in Canada.  This is because Japanese funerals are mostly Bhuddist funerals, which are elaborate multi-day events involving chanting monks, flowers, meals, cremation ceremonies, jade urns and the like.  They are elaborate, exhausting events.  Our funerals are fast-forwarded commercial breaks by comparison.  But it is still a glimpse into the future.

Have a great weekend,

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.

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The concept of reviving a revoked will seems clear enough.  But what is the difference between a revival and a republication, and why does it matter? 

Revival means reactivating a revoked will.  Note that section 19(1) of Ontario's Succession Law Reform Act requires a revival to be in accordance with the provisions of Part I of the Act.  So an oral declaration that a revoked will is valid does not suffice.  A destroyed will cannot be revived, unless the reviving instrument contains a copy or the terms.  On the other hand, at Common Law, a codicil referencing an existing will "republishes" that will, furnishing evidence of the testator's considering his will as then existing.  And because the Wills Act, 1837 did not abolish the doctrine of republication, the principle still operates.  Both revived and republished wills are deemed executed on the revival or republication date. 

An attempt to revive a will that was never actually revoked may have the result of republishing that will at the time of the attempted revival.  However, attempting to republish a revoked will not revive a revoked will, unless the acts of republication also satisfy the requirements of a revival (which include the form requirements of the Succession Law Reform Act.  Specific uses of the doctrine of republication are discussed in detail in Macdonell, Sheard and Hull on Probate Practice, 4th ed., Rodney Hull, Q.C. and Ian M. Hull (Carswell: Toronto, 1996), pp. 116-119. 

Have a good day,

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.

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Rule 45 of Ontario's Rules of Civil Procedure contains mechanisms by which a party can freeze assets that are in issue or relevant to the proceeding.  However, this should be done prior to the close of pleadings because once the matter is set down for trial, Rule 48.04(1) applies.  Rule 48.04(1) requires that any motion brought after the close of pleadings have leave of the court.  Leave will only be available where there has been a substantial or unexpected change in circumstances.

A recent example of Rule 48.04(1) barring a motion for interim preservation occured in Trapukowitcz Estate v. Royal Bank of Canada.  In this case, an estate trustee was seeking an order that the proceeds of a GIC and a bank account be paid into court pending determination of ownership.  Justice Harris refused to grant leave to bring the motion because, on the basis of the admissible evidence, the estate trustee had not shown a substantial or unexpected change in circumstances. 

Justice Harris followed Machado v. Pratt & Whitney Canada Inc. (1993), 16 O.R. (3d) 250, which requires strong affidavit evidence to demonstrate a "substantial and unexpected change in circumstances to the extent that to refuse the order would be manifestly unjust".  The grounds in the moving estate trustee's affidavit were unconvincing. 

As importantly, viva voce evidence given in submissions was not considered.  To do so would be unfair to the respondent, particularly since the evidence had been available since June 4, 2009 and the hearing took place in August 6, 2009.  Therefore, Justice Harris cited Rule 37.06(b), which stipulates that every notice of motion must state the grounds to be argued, and refused to consider the viva voce evidence. 

There is no requirement under Rule 45 to prove the assets are actually at risk, so a R. 45 freezing order is easier to get before the close of pleadings.

Enjoy your day,

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.

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Listen to: Undue Influence - Hull on Estates #183

This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag follow up a discussion about undue influence that took place at Hull & Hull’s Breakfast Series on Sept. 24th, 2009.

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

Ian M. Hull - Click here for more Information on Ian Hull.

Suzana Popovic-Montag - Click here for more information on Suzana Popovic-Montag.

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Settlement privilege excludes communications made in furtherance of settlement from the record.  Settlement is a fundamental component of our trial system for trite reasons.  Virtually every litigation proceeding has a parallel settlement component that the court does not and usually ought not to see, until after the main proceeding. 

In Re Hallman Estate, the applicant had filed an affidavit including a letter that was a settlement offer from respondent trustees.  The letter was marked "Without Prejudice".  The trustees brought a motion to expunge that part of the affidavit.  The applicant asserted that the trustees had impliedly waived settlement privilege by relying on the letter in exercising their discetion when, at a trustees' meeting, they had discussed the letter then refused to pay trust income to the applicant, and later disclosed the minutes of the meeting to the applicant.  Also, the trustees sent a letter to the applicant's counsel noting that the letter had been discussed and offering to provide redacted minutes.  The issue was whether this constituted implied waiver.

No waiver was found.  Settlement privilege can be waived expressly or by implication.  A clear intention is not always necessary.  The privilege can be waived by conduct (waiver by implication), even in the absence of intention, and one situation where this occurs is where fairness requires it (for instance, taking a position inconsistent with the maintenance of privilege).   

But here, it was the applicant asserting the waiver who first filed the Minutes referencing the letter, not the trustees relying on the privilege.  Second, the communication to the applicant's lawyer of the reliance on the letter constituted confirmation of non-waiver, not the opposite.  Finally, there was no evidence the trustees actually did rely on the letter to exercise their discretion as trustees, only that they had discussed the applicant's lack of reply to the letter during the meeting.  On this final point, the decision does not unequivocably state that such reliance would have been sufficient.        

The onus for proving waiver of the privilege rests with the party asserting the waiver, but that should not prevent litigants from fastidiously maintaining the privilege (as the trustees did in this case).

Have a great week,

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.

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The 85 year old son of New York socialite, Brooke Astor was convicted yesterday of grand larceny and scheming to fraud. For a background to the proceedings, click here and here.

After a 5 month trial and 12 days of jury deliberations, Anthony D. Marshall was found guilty of 14 charges, including giving himself a pay-rise of $1 million for managing his mother’s finances. He faces a mandatory sentence from 1 to 25 years behind bars. His sentencing is set for December 8, 2009.

The attorney who did the estate planning for Mrs. Astor was also convicted of forgery charges. Click here to read David Smith’s blog on the attorney’s actions.

The prosecution argued that Mrs. Astor’s Alzheimer’s was advanced so far that she could not understand the complex changes to her 2004 Will or other financial decisions that benefitted her son, such as the $1 million salary.

The defence has argued that Mrs. Astor had lucid moments despite her Alzheimer’s and that she gave her only son control of her estate out of love.

The story does not end there. Mr. Marshall may appeal and the question of what will happen to Mrs. Astor’s $180 million estate has not been resolved. A civil case was postponed pending the resolution of the criminal charges against Mr. Marshall. Some of the charitable beneficiaries of the estate sent observers to the criminal trial and it are not clear how evidence it the criminal  trial will impact the civil case.

Whichever Will is eventually probated, Mr. Marshall will receive a large portion of his late mother’s estate.

Happy Thanksgiving,

Diane Vieira

Diane  A. Vieira - Click here for more information on Diane Vieira.

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Off with the cufflinks. Roll up your sleeves. Grab your joystick and get ready for what may be the ultimate way for the estates and trusts practitioner to spend their lunch hour: Nintendo DS Safecracker.

As an expert safecracker, you have been hired by the wealthy family of a recently deceased billionaire in order to search for the Last Will and Testament of their late relative, oil tycoon Duncan W. Adams. Adams, both an avid safe collector and an eccentric recluse, has hidden the deed to his riches in one of the 35 safes scattered in his lavish 40-room, 3-storey mansion.

Of course, what last testament tale wouldn’t include a nod to the complexities of family dynamics? In addition to his Last Will, Adams has strewn around the mansion various snippets of information about himself and his descendants: letters, notes, postcards and even a diary, all of which allude to the inner workings of the family. 

Game on!

Jennifer Hartman, Guest Blogger

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Baseball Hall of Famer, Ted Williams is the news again as a former employee of the cryonics facility in which Williams’ body is preserved is releasing a book detailing alleged mistreatment of Williams’ remains.

By way of background, Williams died in 2002.  Within hours of his death, Williams’ body was flown to Alcor Life Extension Foundation in Arizona to be cryonically preserved in hopes of being reanimated in the future. Williams’ head was separated from his body and both preserved separately in liquid nitrogen.

In his 1996 Will, Williams requested to be cremated. However, two of Williams’ children produced a handwritten note signed in 2000 by Williams and themselves stating that they all wanted to be cryonically preserved in hopes of being resuscitated and reunited in the future.

Williams’ eldest child brought proceedings demanding that her father’s body be cremated. Their legal dispute was resolved and Williams remains frozen. Since those legal proceedings, Williams’ son has also died and been cryonically preserved in the same facility.

Alcor Life Extension Foundation, the world’s largest cryonics facility, currently has 88 people preserved and a further 905 signed on for preservation.  While cryonics is not specifically prohibited in any province in Canada, British Columbia does have a regulation prohibiting the sale of an arrangement of the preservation or storage of human remains based on cryonics and other processes with the expectation of resuscitation of human remains but does allow a funeral director to prepare a body for cryonics preservation as long as the preparation of the body is in compliance with provincial health regulations and human remains transfer regulations.

Thanks for reading,

Diane Vieira

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This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag discuss the basic principles when there is a dispute over power of attorney in a Will.

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

Ian M. Hull - Click here for more information on Ian Hull.

Suzana Popovic-Montag - Click here for more information on Suzana Popovic-Montag.

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BBC News recently commented on a study published in the Lancet journal that shows more than half the babies now born in the UK and other wealthy nations will live to be 100 years old.  The data from the study indicates that these extra years would be spent with less serious disabilities for the elderly.

The researchers, from the Danish Aging Research Center, refer to “four ages of man”-child, adult, young old age and old old age. Surprisingly, there was little evidence that those who belonged in the old old age group were unhealthier that those in the young old age group likely because the frailest elderly died first leaving the more robust to survive past the age of 85. Danish and American studies show that about 30%-40% of those falling into the old old group live independently.

Of course, such a development requires countries to reform their health-care services, employment practices, and care services. In the U.K., with an election looming, the Tory party has promised a Home Protection Plan that would allow people at the age of 65 to make a one time payment plan of £8,000 pounds in exchange for free full-time residential care in later life. This proposed policy addresses the issue of the elderly having to sell their houses in exchange for funding care giving services.

A significant longer life expectancy requires careful retirement and estate planning. If this trend towards increased life expectancy continues, long standing assumptions will have to be altered.

Thanks for reading,

Diane Vieira

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October 1, 2009 was a historical day in U.K.'s judicial history, as the Supreme Court of the United Kingdom was established.

Prior to last week, the House of Lords held the judicial function as the court of last resort.
A Committee of legally qualified lords who sat in the House of Lords, known as the Law Lords, heard final appeals of court decisions.  Even though they rarely took part in political debates or voted on legislation, the Law Lords were peers of the House of Lords.

Prompted by concern and possible criticism by the European Union, due to the appearance of a conflict of interest as the officials who execute laws were those testing those laws, there was a movement to create visibly distinct legislative, judicial, and executive powers.

In 2003, then Prime Minister Tony Blair announced the creation of a judicial body to act as a Supreme Court. The Constitutional Reform Act, 2005 provides that the Supreme Court take over the judicial functions from the House of Lords. Now the Supreme Court has their own building, identity separate from the House of Lords, and blog.

The Supreme Court is the court of the last resort in all civil matters in the U.K. and criminal matters in England, Wales and Northern Ireland.

There are 12 Law Lords (with one current vacancy) who will hear appeals, with up to nine judges hearing an appeal. It will be interesting to see if the appointment of the Law Lords becomes politicized as in the United States or if this move merely re-brands the system that was already in place.

Thanks for reading,

Diane Vieira

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Listen to: Power of Attorney - Part 1 - Hull on Estates and Succession Planning #182

This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag introduce their next mini-series which will discuss engaging with litigation regarding power of attorney.

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

Ian M. Hull - Click here for more information on Ian Hull.

Suzana Popovic-Montag - Click here for more information on Suzana Popovic-Montag.

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In a captivating article authored by Kent Sepkowitz, an infectious-disease specialist at a Cancer Center in New York City, he recounts the practical difficulties when someone dies at home - doing it yourself can be thorny and chaotic without the administrative help of Hospitals.

Specifically, when someone dies at home, a licensed professional must determine that the person is indeed dead.  While this should be arranged in advance with the doctor, the timing may not ultimately work out.  If no doctor is available, the other option is to call an ambulance…for a dead person.  There are reportedly other annoyances as well, including:

·                    the death certificate must be completed in black ink (using only certain approved diagnoses);

·                    an undertaker needs to be selected; and

·                    law enforcement must be called to establish that no foul play occurred – not an investigation anyone wants to deal with after just losing a loved one.

Mr. Sepkowitz notes that, with the active support of hospice care, savings could come from facilitating the wishes of those who choose to die at home.  He also considers what is likely the more important benefit of assuring tranquility and dignity for the person dying and their family.

Thanks for reading and have a great weekend!

Natalia Angelini

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Hugh Lawford, co-founder of Quicklaw - the world's first online legal database - recently passed away.  

As noted in Mr. Lawford’s obituary, he created the project at Queen's University in 1967 when he realized that legal documents could be computerized and made available in a database. This insight led to his creation of QUICKLAW Inc. together with Professor Richard von Briesen in 1973.

Mr. Lawford spent virtually the next thirty years dividing his time between teaching law at Queen's University and building QUICKLAW into a household name in the legal community. It was a system that without a doubt revolutionized the practice of law, putting an end to long days of cumbersome legal research.  

In 2002, QUICKLAW was sold to LexisNexis. By that time, it had over 200 employees in a dozen offices in North America.

Some of Mr. Lawford’s other noteworthy achievements are:

·                    He was chosen as Rhodes Scholar for Alberta in 1955.

·                    He obtained his Bachelor of Civil Law degree from Oxford University.

·                    Returning to Canada, he joined the new Law Faculty at Queen's University in Kingston, Ontario, and became Queen's youngest Associate Professor, teaching International and Administrative Law; and

·                    He was Special Assistant for a time, first to the President of the Privy Council and then to the Prime Minister.

An interesting article on his life can be found in the Globe and Mail.

Have a great day,

Natalia

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