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The Globe and Mail reports that the Office of the Public Guardian & Trustee has recently declined a request by the Ontario Society for the Prevention of Cruelty to Animals to appoint an interim supervisor to oversee the Toronto Humane Society in the wake of the arrest of several staff members for animal cruelty. 

In Ontario, the Public Guardian & Trustee maintains oversight of the use of charitable property and has the authority to investigate charities regarding that use. 

In particular, the following are the general areas in which the Public Guardian & Trustee has the authority to investigate and intervene:

1. Allegations charitable property is not being used for its intended purpose;
2. Allegations that property is held in breach of legislation; and
3. Complaints regarding those responsible for the administration of a charity, provided the complaint relates to how property is being administered.

There are a number of areas where the Public Guardian & Trustee does not have the right to intervene, including corporate governance issues, income tax issues, landlord-tenant disputes, and employment matters. 

The rationale the Public Guardian & Trustee has provided for declining to appoint a supervisor is that oversight of Toronto Humane Society is ultimately a corporate governance issue and that, as a result, it lacks authority to do so. It also does not have the authority to replace the board of directors of a charity, which it could be effectively doing by appointing a supervisor. 

Have a great day,

Megan F. Connolly

Megan F. Connolly - Click here for more information on Megan Connolly.

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Bobby Fischer died in 2008 in Iceland at the age of 64. The tawdry details of his life often overshadowed the genius of his game - he was a child prodigy, a teenage grandmaster and -- before age 30 -- a world champion who triumphed in a Cold War showdown with Soviet champion, Boris Spassky. Since his death, there has been a battle over his estate. Two nephews, a long-time companion (and spouse?) and a recent companion have all made claims against the estate. 

This month, it appeared that the long-time companion (and spouse?), Miyoko Watai, had won the battle against Fischer’s nephews, when her claim was certified by Iceland’s highest court, according to the website Chessbase.com. This would make her the sole heir to Fischer’s estate. However, a few days later, Marilyn Young of the Philippines apparently filed a claim in Iceland that her 8-year-old daughter, Jinky, was Fischer’s child. Ms. Young apparently provided photographs of her, Fischer and Jinky together and at least two postcards to Jinky signed “Daddy” that were said to be from Fischer. If Ms. Young’s claim is upheld, her daughter may be entitled to two-thirds of Fischer’s estate under Icelandic law.

Claims to Fischer’s estate will be settled in Iceland because he was a citizen of that country when he died, and he reportedly left no Will. His estate may be substantial. In 1992, he apparently was paid over $3 million for winning a rematch with his old rival, Boris Spassky.

There may be more surprise moves to come in this continuing saga. 

Have a great weekend!

Bianca La Neve

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

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There is a tension in the case law between respecting the rights of testators to freely dispose of their estates upon death, and ensuring that a testator’s dependants are provided for in an adequate manner. Past blogs and podcasts on our website have explored this tension. 

In a recent decision out of New Brunswick, Johnson v. Johnson Estate, the court held that a testator had failed to meet his high moral obligation towards his wife of 45 years. Prior to his death, the testator had executed a Will in which he left his entire estate to his eldest son, subject to a life interest in the marital home in favour of his wife for as long as she chose to reside there. If the wife left the marital home, it would be sold and she would be entitled to half of the net proceeds. Given the little provision made for her, the wife commenced claims pursuant to New Brunswick’s Marital Property Act and the Provision for Dependants Act. 

The Court ultimately awarded the wife the marital home, along with its contents and four vehicles, and certain sums of money from various RRSPs and bank accounts. The Court found that the testator’s distribution of his estate further to his Will did not reflect the very high moral obligation that society would expect of a husband towards his dependant wife of 45 years. In the Court’s opinion, society would have expected the testator to leave the bulk (if not all) of his estate to his spouse. In this case, the Court ruled that testamentary freedom had to yield to the interests of a dependant and what is adequate provision for their support. 

Thanks for reading,

Bianca La Neve

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

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 In a recent Québec decision, the young widow of the late boxing champion, Arturo Gatti, and mother to his son, has been awarded $40,000 to cover her legal fees and child care costs. Ms. Rodrigues had asked for a $150,000 advance and their dog. She had also sought to have an earlier Will in which she did not benefit declared invalid. 

At issue is the validity of two Wills that distribute the late boxer’s estate in very different ways. Ms. Rodrigues has submitted a recent Will signed this past June in Québec, which left the entire estate to her. Mr. Gatti’s family contend instead that a 2007 Will signed in New Jersey is the valid last Will. This Will leaves the bulk of the estate to Mr. Gatti’s mother. The Gatti family claim that the Québec Will was signed under duress. However, a signed original of the 2007 Will has apparently not yet been located by the Gatti family. Accordingly, Ms. Rodrigues sought to have this earlier Will declared invalid, an attempt that was rejected at this preliminary stage by Justice Chaput of the Québec Superior Court. He also ruled that custody of the couple’s dog was not an urgent matter for the time being.

Justice Chaput has urged both sides to come to a settlement to avoid a lengthy and costly court battle that could eat away at the estate, estimated to be $6 million. However, both sides seem prepared to go the distance in their legal fight. Stay turned for a real barnburner.

Thanks for reading,

Bianca La Neve

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

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Listen to:  The Holiday Season - Hull on Estates and Succession Planning #188

This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag address the issue of family discussions about succession planning as they arise during the holiday season.

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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Listen to: Dueling Power of Attorney - Hull on Estates #189

This week on Hull on Estates, Sharon Davis and Natalia Angelini discuss dueling Power of Attorney based on a paper written by Jordon Atin.

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

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

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

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In a Probater article, my colleague, David M. Smith, mused on “in contemplation of marriage” clauses in Wills legislation, which preserve Wills in the face of marriages. As noted by David, to avoid revocation by an impending marriage, a testator usually must include a clear and unambiguous declaration in his/her Will that it is made in contemplation of marriage. The language used must clearly evidence the testator’s contemplation of marriage to a particular person (who is undoubtedly a beneficiary under the Will).

A recent decision out of British Columbia dealt with whether or not a marriage had the effect of revoking a Will where the existence or intent of a “contemplation declaration” was ambiguous. In MacLean Estate v. Christiansen, the testator and Ms. Christiansen began dating in April 2003, and living together in August 2003. In 2005, the testator finally divorced his former spouse, with whom he had had four children. In 2006, Ms. Christiansen and the testator announced their engagement to family. The testator then executed a Will and power of attorney in favour of Ms. Christiansen in June 2007. In August 2007, the couple married but the testator died shortly thereafter. 

The June 2007 Will provided that for Ms. Christiansen by way of a spousal trust. One of the clauses in the Will stated, in part: “to deliver to my spouse, Karen” (i.e. Ms. Christiansen). The issue became whether this clause could be construed to be a declaration that the Will was made in contemplation of the testator’s marriage to Ms. Christiansen. 

The court ultimately held that the June 2007 Will had been revoked by the subsequent marriage. The court held that the reference to “my spouse” was not a declaration that the Will was made in contemplation of the marriage to Ms. Christiansen. It was a reference to their common-law relationship; Ms. Christiansen was the testator’s common-law spouse at the time of execution of the Will. As held by the Court, “the Will could not survive the conversion of a marriage-like relationship, which is accorded all of the rights and obligations attached to a legal marriage, to one of legal marriage”.

Interestingly, it was the named executor who applied for the determination as to whether the June 2007 Will was revoked by the subsequent marriage. The children of the first marriage on the one hand, and Ms. Christiansen on the other hand, each advised the Court that they did not wish to assert that the Will be submitted for probate. The situation was likely non-adversarial due to the fact that whether the estate devolved by Will or an intestacy, all of the children and Ms. Christiansen would benefit (to varying degrees). It should be noted that the new Wills, Estates and Succession Act will abolish the “contemplation of marriage” provision in British Columbia.

Thanks for reading,

Bianca La Neve

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

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British Columbia’s new Wills, Estates and Succession Act received Royal Assent on October 29, 2009. This new Act is a comprehensive statute designed to modernize and streamline the making of Wills and the administering of estates in British Columbia. 

Changes will include:

• Introducing a simplified procedure for administering small estates;
• Using the term “will-maker” instead of “testator”;
• Incorporating succession law concepts currently found only in case law (such as those that apply to adopted children);
• Granting the court the power to rectify a Will in certain situations, to ensure that a will-maker’s last wishes are respected; and
• Abolishing the presumption that a gift given by the will-maker during his/her lifetime to a child is an advancement of a gift in the will – instead, such a gift would take effect according to its terms.

The new Act is expected to come into force sometime in 2011, which will allow time for the public and legal community to review and prepare for the new legislation. 

Wills made before the new Act comes into effect will not be invalidated, but the new Act will apply to the interpretation of existing Wills. This may lead to a flurry of demands to update existing Wills, so that a will-maker’s longstanding wishes are not inadvertently thwarted by the new statute.  More information can be found at www.ag.gov.bc.ca/justice-reform-initiatives.

Thanks for reading,

Bianca La Neve

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

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In a decision earlier this year, Justice Harris in Binkley Estate v. Lang, (2009) 50 E.T.R. (3d) 44, looked at the construction of wills and fundamental issues giving effect to the testatrix’s intent. The decision involved a 92 year old testator who was both capable and in control of her affairs. The testatrix made a will in 1996 which provided a legacy of $2,500, for each of the three respondents in the action. In 2006, the testatrix elected to make minor changes to her will.

After her death, it was discovered that the 2006 revision of her will increased each legacy to $25,000. The Estate Trustee brought an application for a declaration that the clause which amended the bequest was not reflective of the testatrix’ true intentions. The Applicant asserted that the intended bequest was $2,500, and not the increased amount. The testatrix informed her friend that she intended to change her will with respect to only three issues, other than the bequest at issue. The drafting solicitor later stated that he inadvertently amended the bequests at issue to $25,000. Prior to signing, a friend of the testatrix and the drafting solicitor reviewed the will and the testatrix appeared to have read the will and none noticed the inadvertent error.

Rectification, an equitable remedy which seeks to prevent a written document from being used as an engine of fraud or misconduct "equivalent to fraud", was at issue this case. It was stated that the court’s task in a rectification case is corrective and not speculative and is to be utilized with abundant caution. Further case law supports that where a Will was not read over to the testator and the mistake is made in circumstances in which the Court may omit words or dispositions, the mistake may be established on the balance of probabilities.

Upon review, the judge determined that it was improbable that the testatrix increased this legacy ten fold without notifying her trustee or making comment. As such, the court decided to rectify the will to reflect the intentions of the testatrix and reduced the bequest to $2,500.

Thanks for reading,

Nadia

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.

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Listen to:  Cost Decisions and Estate Litigation - Hull on Estates #188

This week on Hull on Estates, David Smith and Nadia Harasymowycz discuss cost decisions and estate litigation.

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

David M. Smith - Click here for more information on David Smith.

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.

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In Estate Litigation we are faced every day with feuding families.  Is the fight avoidable or inevitable?  For those of you with siblings, I'm sure at some point in your lifetime you've gotten upset and yelled those words which for some reason really hit home: "Mom always liked you best".  On some level, favouritism, or the perception of it, is at the heart of Estate Litigation. 

A study released by Cornell University of child favouritism surprisingly discovered that mothers may have distinct preferences amongst their children.  This may not be shocking to some, but I was frankly a little surprised that they admitted it.  It shouldn't come as such a surprise given the feuding I see everyday, and I'm sure some of you are feeling validation right about now for all those years where you thought it, but had no proof.  I can already hear the 'I told you so's'.

On some level this favouritism is rooted in reasonableness.  The study claims that the favourite is generally the child whom the mother feels closest to, who is most similar in attitude and values.  Of note, is that this child is generally a daughter.  Also, it's often the child who has provided the most support in the past.

While the after effect of such favouritism is evident in Estates, the effect of this preferential treatment starts earlier than that.  Often these feelings come to light when attorneyship becomes an issue.  While the rationale for the decision can likely be explained to your children in a manner which could be understood, we tend to hide these feelings and let it come as a surprise.  Maybe we should reconsider that and let our feelings show through, so at the end of the day we can understand our parent's decisions and ask about them before it's too late.

Nadia

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.

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Listen to: Power of Attorney - Part 6 - Hull on Estates and Succession Planning #187

This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the importance of confidentiality when acting as 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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I'm sure there are a few people who are holding out and refuse to join facebook, or some other virtual world.  Yet for the majority, checking online accounts is merely part of an everyday routine.  What happens when you are no longer around to check these accounts?  This may seem like a trivial factor when dealing with the loss of a loved one, but seeing posts on a facebook wall belonging to a recently deceased family member can be extremely painful.
 
In a recent episode of The National, our own Ian Hull articulated that an online presence is something which we increasingly need to consider when dealing with Estates.   This presence can cause difficulties for Estate Trustees.  Online accounts generally require passwords; passwords which are not necessarily shared with anyone.  In fact, recently, I signed up for an online account and was specifically instructed not to share my password.  Then the dreaded words appeared on the screen: 'Please pick a question which will be provided to you in the event that we need to verify your identity.'  I had to pick and answer a question three times before my password could be set.  I'm not sure if the people closest to me would know the answers to those questions.  How could they, it took me a while to think of questions I was certain I would remember the answers to.  What would happen if my family had to access my accounts and I wasn't there to help them? 
 
This issue was explored in a recent article in the New York Times.   The article suggests naming a digital executor to get around the problem of passwords.  I've yet to explore this personally, but it is certainly intriguing. This concept is new and how it will play out in estate planning, administration and litigation is yet to be seen.  I'm not sure I'm willing to give my passwords to a complete stranger at yet another website, but at the very least, I've reconsidered sharing some of my more obscure passwords with my family.  Something to think about. 
 
Until Tomorrow,
 
Nadia

Nadia M. Harasymowycz - Click here for more information Nadia Harasymowycz.
 

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A recent article in the Toronto Star discusses the possibility of immortality.  Not just a distant possibility, but a real possibility within our lifetimes.  It even suggests that the first 1000 year olds are almost certainly already alive.  According to the article, there is the possibility that we would simply replace our bodies as they deteriorate.  If this process goes according to the theories of scientist Ray Kurzwell, we would not stop the aging process, but merely transfer our brain contents into a newer body.  The reality of this makes me cringe.  Does this mean that my grandma would suddenly look like a sister?  Its a little too much to digest.

This article goes on to mention that recently the Nobel Prize in medicine was awarded to American scientists for research on the "immortality enzyme".  This enzyme allows cells to multiply without damage.  It shows promise in the fight against cancer, but apparently also holds great promise in the fight against mortality.

The implications of immortality on an estates practice are rather obvious.  However, the realities of living forever are not.  I can't even begin to imagine the global impact this would have on our society, or how we would adapt.  A life without end still seems a far fetched idea to me.  I suppose only time will tell.

Nadia

Nadia M. Harasymowycz - Click here for more information Nadia Harasymowycz.

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The 12th Annual Estates & Trusts Summit, took place late last week on November 12th and 13th, 2009 in Toronto.  This program, organized by the Law Society of Upper Canada, presented a variety of issues which are of interest to anyone practicing in the Estates and Trusts field.

The summit spanned two days, and dealt with topics running the gamut.  Some of the Topics and Speakers included:

• Estate Planning in Recessionary Times (Heather Evans)
• U.S./Canada Cross-Border Planning (Beth Webel & Jim Yager)
• Family Law and Your Estates Practice - An Update (Daniel S. Melamed, C.S.)
• Drafting Multiple Wills (Clare A. Sullivan)
• Estate Administration Issues (Rosanne T. Rocchi)
• Creating Insurance Trusts to Minimize Probate Tax on Life Insurance (Robin Goodman)
• The Exercise of Trustee Discretion (Bernadette Dietrich)
• Practice Management Issues for Estates Practitioners (Louise F. Christofolakos)
• Constructive Trusts and Quantum Meruit (Elizabeth A. Bozek)
• The Standard of Care and Will Drafting (Ian M. Hull, C.S)
• Duelling Powers of Attorney (Jordan M. Atin, C.S.)
• The Latest Costs Issues (Shael Eisen)
• Remedies for Non-Compliance with Court Orders (Kimberly Ann Whaley, C.S.)
• The Top 10 Decisions Released by The Honourable Mr. Justice David Brown (Timothy G. Youdan)
• Representing the Incapable Person (Marshall Swadron)

For a full list of speakers and topics visit the Law Society of Upper Canada Website.  If you were not able to attend, contact the Law Society of Upper Canada to obtain materials.

Nadia M. Harasymowycz

Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.
 

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The creating of a legacy is not just about the size of an estate left behind by a testator.  A publication of Imagine Canada entitled Philanthropic Success Stories details the nature of philanthropy and gives all of us pause to consider how best to create a lasting legacy.  As the authors note, philanthropy is best defined by heart, time and spirit rather than one's bank account balance.

Imagine Canada is a charitable organization which has as its mandate the fostering of non-profit and charitable causes.  The authors of Philanthropic Success Stories observe that Philanthropists (in the traditional sense) are being replaced by people better defined as: "champions, advocates and volunteers"  The authors specifically note that philanthropy is being pushed out in new directions that embrace such adjectives as: risk-taking, pioneering, innovative, and being "ahead of the curve."

As an example, the authors refer to the Caledon Institute of Social Policy which is credited for spearheading, among other things, the implementation of the National Child Benefit.

Have a great weekend!

David M. Smith

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In considering a topic for today's blogs, I had a number of competing ideas and decided that the best approach would be just to muse on a couple of issues that I have had pause to consider over the past couple of weeks.

On a Motion for Court Approval of Minutes of Settlement under Rule 7 of the Rules of Civil Procedure, the written consent of any minor over the age of sixteen is required "unless a judge orders otherwise."  It is a somewhat curious requirement in that the person whose written consent is required is nonetheless under the jurisdiction of the Children's Lawyer (subject to the supervision of the Court).  It is difficult to imagine a scenario in which the Children's Lawyer does not object to the form and content of Minutes of Settlement yet the Court refuses to approve the settlement if one of these more "senior minors" withholds their written consent.

And what about this one:  The presumption of advancement as between married couples is enshrined in the rather curious wording of the Family Law Act.  Yet how does this presumption dovetail with the obligations of a spouse, not as a spouse, but as an attorney for property under a Continuing Power of Attorney for Property?  It is a difficult issue especially when there is uncertainty as to the capacity of a donor spouse to make a transfer into joint ownership.  Can a spouse benefit from the presumption of advancement in circumstances where he or she is added as a joint owner to an account while arguably acting under the Power of Attorney?

David M. Smith

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Did you know that there are tools available on our website that will allow you to get more mileage out of our blogs and podcasts?

• EMAIL THIS - allows you to email the blog to a third party, for example, a client or colleague
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We thank you for your continued loyalty to the Toronto Estate Law Blog and welcome your suggestions and comments regarding how we can continue to serve you best.

Your Team of Hull & Hull LLP Bloggers and Podcasters

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Sunnybrook Health Sciences Centre houses Canada’s largest Veteran’s care facility, offering care to a current population of 500 vets, a few from the Korean War, but the majority of whom are from World War II. Residents are housed in two wings: the Kilgour Wing which promotes independent living, and the George Hees Wing with supportive care. Innovative dementia care is provided for Veterans in the Dorothy Macham Home, which is a therapeutic environment based on a residential model.

An article in last Saturday’s Toronto Star highlighted the unique challenges presented when a history of wartime service is coupled with a present day diagnosis of dementia. The hallmark of dementia is a (usually) progressive loss of memories, starting with the most recent memories formed. In a nutshell, this is why patients with dementia ‘forget’ that their spouse has died, or ‘forget’ that their children are now adults. For some of Sunnybrook’s Veterans, this means the war is not over. It is here. And it is now. According to Dr. Jocelyn Charles, medical director of the Veteran’s centre, behavioural problems in Sunnybrook’s dementia patients are twice as prevalent as the provincial average. In fact, in a study of Sunnybrook’s Veterans, 16 percent still showed active symptoms of PTSD, such as ‘distressing dreams, flashbacks and anxiety.’

Canada’s WWII veteran’s are dying at the rate of 400 a week.

Will you remember?

David M. Smith

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Listen to: Negligence Regarding Estates and Wills - Hull on Estates #187

This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss negligence in the area of solicitors working with estates and Wills.

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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Listen to: Power of Attorney - Part 5 - Hull on Estates and Succession Planning #186

This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag continue their conversation regarding compensation for attorneys and guardians of personal care.

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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Medical Records are one of the most important categories of evidence available to the estate litigator. In most cases, medical records from health care providers who treated a testator in and about the time a Will was made will be seen as the most persuasive evidence available because the author of such records will be seen as both (i) possessing some degree of expertise related to the assessment of capacity and (ii) exhibiting complete objectivity as a witness (unlike the family members who may be contesting capacity).

In Ontario, the College of Physicians & Surgeons of Ontario (“CPSO”) has posted a policy on its website providing the public with information concerning medical records and what they are required to contain. Not surprisingly, security and privacy of medical records is one of the foremost concerns. Of particular interest is the fact that one of the “principles” of good record keeping as mandated by the CPSO is to maintain “information essential to others for a wide variety of purposes…including legal proceedings”

For its part, the Ministry of Health and Long-Term Care has stringent requirements for the production of Claims Reference Files providing details of all health care providers who have provided services to a deceased client. Typically, a Certificate of Appointment of Estate trustee With a Will or a Court order will be required to obtain a Claims Reference File for a Deceased.

David Smith

David M. Smith - Click here for more information on David Smith.
 

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The formal requirements for execution of a will, or any testamentary instrument in Ontario, are governed by Part I of the Succession Law Reform Act ("SLRA").  The definition of "will" in s. 1 of the SLRA includes a testament, codicil, will, or other testamentary disposition.  The most critical form requirements are that the will must be in writing, signed by the testator and two witnesses.  Other requirements exist, of course.

Many jurisdictions contain dispensation clauses relaxing the formal compliance requirements, if the court is satisfied that a document or any writing on a document embodies the testamentary intentions of a deceased.  For example, s. 23 of Manitoba's Wills Act  or California's Probate Section 6110-6113.  Not so with Ontario, except for holograph wills and for members of the Canadian Forces on active service.  While there is wiggle room in terms of the interpretation of the execution requirements, for instance what constitutes "in writing" or "signed by the testator", if the formal requirements are not met and no specific exemption applies, there is no saving provision based on testator's intention, and therefore no testamentary instrument.

This can have harsh consequences, by invalidating otherwise perfectly good wills on narrow technical grounds.  On the other hand, the SLRA provides time-tested, black-letter legal clarity.  Time tested, because the formal requirements descend from the Wills Act, 1837.

Have a great weekend,

Chris Graham

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

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Listen to:  Terminology in Civil Proceedings - Hull on Estates #186

This week on Hull on Estates, Paul Trudelle and Christopher Graham discuss some of the words and terminology commonly used in civil proceedings.

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

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Prosecutors have dropped the charges of kidnapping and carrying a concealed weapon against the shopkeeper accused David Chen.  Readers will remember Mr. Chen as Toronto's Chinatown shopkeeper who arrested a shoplifter, with the help of two employees, then got charged himself.

Mr. Chen, owner of Chinatown store Lucky Moose Mart, had spotted the thief and with the assistance of his employees, tackled the thief, bound him in twine and detained him in a delivery truck until the police arrived four minutes later.  The thief had allegedly victimized local stores, and has a criminal record going back 32 years, all according to this news report.  Incredibly, this record includes - according to the news report - stealing from Mr. Chen's own store and a neighbouring store, including on that same day.  Truth being stranger than fiction, the thief was granted a plea-bargain sentence of 30 days in relation to his theft from Mr. Chen's store in part because he agreed to testify against Mr. Chen and the two employees. 

The Crown's theory seems to be that because the arrest was not contemporaneous with the crime, the thief having returned to the store about an hour after committing the theft, the arrest is not protected by citizen's arrest provisions.  Mr. Chen has apparently rejected a plea bargain - he had videotape evidence of the theft. 

Mr. Chen is married with 2 children, aged 2 and 6, and has become a bit of a folk hero.  How hot is this story?  The Globe and Mail reported at 12:13pm yesterday, the National Post at 4:03 pm, CBC at 2:54pm, the Toronto Star right away too. 

Have a good day,

Chris Graham

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

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Successful motions for summary judgment are rare occurrences, and any guidance on costs awards is welcome.  Justice Mesbur's costs endorsement in the personal injury case Asmassu v. John (2009), 2009 CanLII 58579 (On S.C.) is a straightforward application of costs principles on a successful motion for summary judgment by co-defendants.   

This motion arose in a claim that was one of a series of lawsuits by the plaintiff against the co-defendants, all arising out of the same set of facts.  As the pleadings disclosed no reasonable cause of action, in that context, the proceeding amounted to an abuse of process.  The claim included allegations of serious professional conduct and the relief sought included damages of $50 million.  As Justice Mesbur wrote,

"He cannot make claims like this without expecting that they will be vigorously defended, with significant costs being incurred as a result.  Given the level of the claim, the importance of the issues to the parties, and all the other factors enumerated under the rules, I am of the view that the amounts claimed for costs are fit and just in all the circumstances."

Justice Mesbur awarded the full partial indemnity costs claimed by both co-defendants.  The hospital's solicitors had reduced their partial indemnity rates from $32,000 to $20,000, and Justice Mesbur emphasized this reduction in awarding the full $20,000.  The doctor's solicitor was awarded claimed partial indemnity costs of $10,393.35, lower than the hospital since the hospital's solicitor had made most of the submissions.    

Have a great day,

Chris Graham

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

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Listen to:  Power of Attorney - Part 4 - Hull on Estates and Succession Planning #185

This week on Hull on Estates and Succession Planning, Ian Hull discusses the difficult topic of arranging payment for the 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.

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A private member's bill that would decriminalize medical practitioners assisting with suicide is about to get its first reading in the House of Commons.  

Bill C-384 would amend sections 222 (homicide) and 241 (assisted-suicide) of the Criminal Code.  Currently, these provisions criminalize (or confirm the criminal liability of) medical practitioners who participate in patients' suicides by providing their services.   Bill C-384 would create an exception to criminal liability for medical practitioners if prescribed elements were met:  patients would have to be 18 years of age, suffer from a terminal illness or be in severe pain without prospect of relief (though a patient who refuses pain-killers still qualifies), provide 2 written consents to die "while appearing to be lucid" at least 10 days apart, and provide a written designation of another person to act on his or her behalf if he loses lucidity.

The phrase "while appearing to be lucid" rings alarm bells off their walls.  The test implies a very low capacity threshold by comparison to say, testamentary capacity, but does not deliberately fit anywhere identifiable on the capacity threshold scale.  From a estates law perspective, there is no requirement in the bill that medical practitioners consult personal care guardians or attorneys before going about their business.  There is no requirement for a guardian or attorney to even consider these issues, but such legal possibilities might dramatically complicate the duties and obligations of a guardian or attorney.     

From this quick analysis, this bill appears to have been written without input from the estates bar (which is unsurprising - it is the first reading of a private member's bill in a criminal law matter in federal jurisdiction).  This is a good example of how broad the estates/capacity field is and the potential effects of developments in other areas of law on estates/capacity law.

Have a great day, and enjoy every day you get,

Chris Graham

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

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A testator who suffers from "insane delusions" may not have testamentary capacity.  The case law provides numerous definitions and tests for insane delusions, but there is no single dedicated leading case.  Perhaps the best way to grasp this principle is by starting with the classic statement from Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 on testamentary capacity:

"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects;  shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties;  that no insane delusion shall influence his will on disposing of his property, and bring about a disposal of it which would not have been made otherwise."

An excellent recent examination of various statements of the principle is found in Royal Trust Corporation  of Canada v.  Saunders (2006), 2006 CanLII 19424 (On. S.C.), while Banton v. Banton (1998), 1998 CanLII 14926 (ON S.C.) provides a precise, thoughtful application of the principle. 

My favourite case of a will invalidated by the testator's insane delusions occured in Great Britain in 2007.  The disinherited son of Branislav Kostic successfully challenged Mr. Kostic's will, which gave 8.3 million pounds to the Conservative Party.  Mr. Kostic had become a believer that the redoubtable Prime Minister Thatcher would "save the world from satanic monsters and freaks".  Mr. Kostic had apparently written to Ms. Thatcher, appealing to her that she was the only person who could save the world from bestial creatures.  Mr. Kostic also believed the female members of his family were out to do him in (poison), among other things.    

Enjoy the week,

Chris Graham

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