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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In today’s blog I will touch upon the rule in Re Hallet’s Estate*.  Tomorrow’s blog will touch upon the rule in Clayton’s Case. The rules stem from situations where a trustee mixes trust funds with their own funds or with a different trust’s funds. The rule in Re Hallett's Estate applies where trustees mix trust funds with their own funds.

The principle was enunciated by the court in the case of Re Hallett's Estate (1879), 13 Ch. D. 696 (CA) and is known as the rule in Re Hallett's Estate. The rule states that where a trustee mixes trust money with his or her own money in a bank account and then withdraws money from that account, it is assumed that the trustee first took out his or her own money rather than money belonging to a trust beneficiary. It may be seen that the rule in Re Hallett's Estate is based on the assumption that trustees are honest and act accordingly. Even if they do mix trust funds with their own money, it is not to be presumed that this mixture was intended to defraud the trusts of those funds.

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The next Medical/Health series of blogs is scheduled to hit the platform on Monday May 3rd, 2010.  The series will run every Monday thereafter in the month of May (with the exception of Victoria Day), for a total of four blogs.

To keep things fresh, relevant and engaging, we are inviting suggestions for topics from you.  Is there a specific medical condition you'd like to see an overview for?  We have blogged on strokes, brain injury, alcohol abuse, pharmaceutical abuse, dementia, the Ontario Mental Health Act, and palliative care, just to name a few.  Perhaps you would like to see one of these capacity-related topics explored in more detail?

Please forward your suggestions to jhartman@hullandhull.com .

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The Ontario Bar Association (OBA), Trusts and Estates Section, year end dinner is taking place on June 1, 2010 at Archeo in the Distillery District in Toronto. The Reception begins at 5:30 p.m. with Dinner at 6:30 p.m. Suzana Popovic-Montag, the Chair of the Section, will bring the past year to a close. The Section will also pay tribute to this year’s recipient of the Award for Excellence in Trusts and Estates, Hilary Laidlaw.

The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates.

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Achieving a settlement is a major success in any estates dispute, but even the most comprehensive agreement cannot address every possible post-settlement wrinkle.  The recent case of Viau v. Kozicki et al, 2010 ONSC 1682 is an example of how a court will interpret Minutes of Settlement following court approval (required in this case because there were minors).   

The main issue in Viau was whether legal fees associated with administration of the estate after a judgment approving the settlement had been granted.  The judgment incorporating the settlement stated as follows:

"THIS COURT ORDERS AND ADJUDGES that [the estate trustee], be at liberty to pay all of the debts of the [Estate], which include:

(xiv)  Any legitimate debts of the [Estate], upon notification to [named Respondent], or approval of the court."

The court found that the wording of the order was not restrictive and did not establish caps on legal fees.  Further solicitor's work to complete the estate would have been anticipated.  Of course, the legitimacy of the work or amount claimed would be subject to approval by the named Respondent or the court.  In coming to this conclusion, the court did not look beyond the terms of the judgment.  The judgment was clear and unambiguous and there was no need to review pre-settlement correspondence.

The decision illustrates a second principle: litigants should avoid unnecessary (or less efficient) proceedings.  Specifically, when the named respondent challenged the legitimacy of the additional legal fees, the estate trustee commenced a passing of accounts proceeding.  The court found that the issue concerning the legal fees could have been addressed by motion to the court without a passing of accounts and therefore the costs associated with the passing of accounts were not payable from the estate. 

Thanks for reading,

Chris Graham

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I am a big fan of the feel good test in my approach to success in law, business or anything else. It is not what people actually get that dictates success but how people feel about it at the end of the day. In a previous blog I commented that client satisfaction is based on this very principle, but what about our own success as lawyers? How those in the legal profession define success has many answers, depending on the individual and the area of law. 

In this week’s edition of Canadian Lawyer Magazine 4Students you can see what some lawyers think of as the pros and cons of practising in a particular area. If you scroll way down, you’ll see pros and cons of practising in trusts & estates by Liza C. Sheard, of Evans Sweeny Bordin LLP in Hamilton, and by our very own Paul Trudelle at Hull & Hull LLP in Toronto.

A definite pro for any trusts and estates lawyer is that it is an intellectually fascinating and challenging area of law. The cons are based around the emotionally charged atmosphere we often encounter. 

Work life balance is a very common buzz-word these days. Ultimately work-life balance comes from within and not from your job description. You must know yourself and integrate your talents, your passions and your responsibilities into each day to meet your constantly changing priority list.

I’m a firm believer that in order to be a success at anything you have to enjoy it – it has to mean something to you. As I celebrate my first anniversary in trusts & estates law, at the end of the day I feel pretty good. But I feel even better about getting up the next day to come in and do it all over again. 

Thanks for reading all week and have a great weekend! 

Sharon Davis

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

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There has been a lot of attention in Ontario lately about  the intentions of litigants quarrelling over inheritance. As mentioned in a recent blog this can even happen in advance, in the form of capacity litigation.  In recent cases the Court has made it clear that it is incumbent upon not only the parties but on counsel as well to cooperate sufficiently to move the litigation along. At threat of costs payable by the parties or even their solicitors, all concerned are generally expected to work together to come up with a timely litigation management plan to efficiently dispose of the matter.

Recent Ontario decisions illustrate that greed and rivalry amongst family members will not be tolerated in our courts.  However, this is by no means exclusive to Ontario. In the B.C. case of Calbick v. Warne we see the same familiar scenario. The testator in this case, the parties’ mother, knew her children would quarrel after her passing but still couldn’t do anything to prevent it.

What more could she have done? In such cases, it might be appropriate to have a family conference to mediate the squabbles prior to death, especially if the testator feels that he or she can have a moderating influence on the family and can explain the reasons behind his or her decisions with the assistance of a professional and neutral mediator. If intentions are understood by the entire family, and if everyone agrees to abide by them in advance of your passing, then they might stay on the same page after your death and there is a reasonable chance of avoiding the fight. Who knows – maybe the rivalry can even be solved once and for all in such an environment. A nice bonus.

Earlier this week I blogged about proportionality, which is now a codified requirement in the Ontario Rules of Civil Procedure. It is a common sense consideration, but unfortunately one that is not all that common in estates litigation where emotions run high and hurt feelings have been building for a lifetime. Be that as it may, litigants be warned, gone are the days when estate litigation was “free” with the expectation that the estate would pay costs for everyone. 

Sharon Davis

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

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In any estates practice one is likely to see more than a few battles motivated by emotion rather than money. Take, for example, the not so unusual scenario of a younger woman who marries an older man and claims against his estate on his death. The son from a previous marriage, being the major beneficiary of the contested Will, vehemently denies the claim and a bitter dispute ensues. Not uncommon for such disputes to go on for years. In one US case, however, the dispute has outlived the husband, the wife and the son, leaving only the estates to battle it out after 15 years of litigation that saw its way into a Houston Probate Court, a Los Angeles Bankruptcy Court, a variety of appeal courts and even the US Supreme Court.

This, of course, is the Anna Nicole Smith (legal name Vickie Lynn Marshall) battle over her elderly husband’s $1.6 billion estate. Smith, a former stripper, and J. Howard Marshall, an oil tycoon, married in 1994 when she was a 26 and he was 89. Marshall died 14 months later.  In a Will that was re-done after his marriage to Smith, the elder Marshall left almost his entire estate to his son E. Pierce Marshall. 

Smith contested the Will in Probate Court in Texas at the same time as an appeal from her bankruptcy proceedings was pending in Federal Court in California.  As part of a counterclaim in the bankruptcy proceedings, Smith was awarded millions against Pierce for tortious interference with a substantial inter vivos gift (worth $300 Million) that she claimed her husband intended to give to her.   

In the latest decision  released on Friday, March 19, 2010, the 9th U.S. Circuit Court of Appeals found that the Probate Court's decision that the billionaire was mentally competent and under no undue influence when he left nothing to Smith, was the earliest final judgment on matters relevant to the tort proceeding, which precluded the award of damages by the Federal Court.  For more on the background of this case see this 2007 blog.

Pierce Marshall passsed away in 2008.  His wife, Elaine Marshall, continues the battle on behalf of his estate with Smith's ex-boyfriend, Larry Birkhead, and attorney, Howard K. Stern, in charge of Smith's estate. Birkhead and Smith’s 3-year-old daughter, Dannielynn, was named Smith's heir in 2008 after she died of a drug overdose at age 39 in a Florida hotel.

Whether emotion will continue to fuel the litigation remains to be seen but this article in the Washington Post seems to indicate that it is not over yet, with another trip to the US Supreme Court possible in the future.

Thanks for reading!

Sharon Davis

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

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Listen to: Trustee Liability - Part 2 - Hull on Estates #203

This week on Hull on Estates, Bianca La Neve and Craig Vander Zee continue their discussion on ways to protect a Trustee from liability, particularly discussing the removal and/or replacement of a Trustee.

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

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

Craig R. Vander Zee - Click here for more information on Craig Vander Zee.

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It has now been almost a year since the April 1, 2009 Practice Direction Concerning the Estates List of the Superior Court of Justice in Toronto so I thought I’d start the week with a with a two-part blog containing a few general observations and some practice tips for Toronto. Today’s topic is Scheduling Appointments.

The Scheduling Appointment was created to reduce adjournments and to make the court system more efficient and less costly. It preceded Ontario’s new Rules of Civil Procedure and had many of the same goals in mind, most notably proportionality, which is now an overarching consideration. 

A Scheduling Appointment is ten minutes long and is a very versatile mechanism to allow you to get before the Court relatively quickly to obtain assistance. It can be used to “speak to a matter”, to set down a timetable or to obtain a consent order. They can be booked on two days’ notice and generally you can get on the list within a week or two.

Adjourning a Scheduling Appointment

• If a Scheduling Appointment was booked through OSCAR or the Estates office, you can adjourn it administratively by filing your confirmation form cancelling the Scheduling Appointment or adjourning it to another date. It is best to do this as far in advance as possible. Once you file the confirmation form, you cannot easily amend it to get it off the door list. You should check OSCAR the day before the scheduled date to make sure the cancellation has been noted and the matter is not on the list for the day you seek to adjourn. If you fail to appear on a Scheduling Appointment, the Court can set a timetable or a hearing date in your absence.
• You can adjourn the Scheduling Appointment to a specific date and note this on your confirmation form but this is not necessary. If you are in negotiations or are otherwise not ready to address the matter, you should note on your confirmation form that you will bring it back to a Scheduling Appointment when the parties are ready. This will avoid endless re-scheduling of Scheduling Appointments. Since they are quick and easy to get, no need to schedule them way in advance.  
• If a Scheduling Appointment has been scheduled by the Court, counsel should appear to speak to an adjournment request. Although the Practice Direction doesn’t specifically say this, it has been the de facto procedure adopted.

Stay tuned for Part 2 in tomorrow’s blog about adjournments of Hearing Matters, and some general tips when appearing in Court on adjournments.

Have a great week!

Sharon Davis

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

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In a recent article in the Toronto Star, estate litigation was explored from another angle; fighting over the estate before there really is one to fight over.

The author of the article discusses a story regarding an individual who was waiting for his parents to pass away, so that he could reap the financial reward of their hard work. On first glance this may seem shocking, but unfortunately is achingly familiar. Although we see family fights every day, and indeed engage in litigation over a deceased loved one’s life savings, a specialized fight appears to be more and more prevalent.

The article suggests that the increase in disputes over a parent’s estate while they are alive can be attributed to demographics; the result of a generation that is living longer, had a habit of saving, and find themselves in need of care.

Claims against an estate are often brought under the guise of needing funds during the course of caring for an ailing or ill parent. In a recent decision, Justice David Brown commented on this very issue, indicating that the courts are losing their patience with money hungry children.

I am hopefully years away from dealing with ailing family members and the reality of dealing with their financial affairs. Yet in light of the recent spotlight on this issue, I hope that if you find yourself in this position, you make decisions after careful consideration of all possible outcomes.

Thanks for reading,

Nadia

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

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I quickly learned that what most of us just know as a day to consume green drinks or wear a green shirt, actually began as a celebration of St. Patrick’s life. Celebrating St. Patrick takes place on March 17 in honour of the date of his death.

Many cities around the world celebrate St. Patrick’s Day, Chicago even goes so far as to dye the Chicago River green. Not to be outdone, many Canadian cities manage to celebrate in their own unique ways. Montreal has a yearly parade, the largest of its kind in Canada, Calgary has been known to change the lights on the Calgary Tower to green, and on several occasions Toronto sports teams have traded in their traditional uniforms for a green version.

Celebrating of the death of St. Patrick is a strong tradition in Toronto and around the world. So, whatever your means of celebrating, I hope you enjoyed yesterday and good luck on the early planning for next year.

Until Next Time,

Nadia
 

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I came across an interesting article by John Archer in the Gazette about real-estate investing in the U.S. Mr. Archer warns that while it has become a buyers' market, real-estate investing in the U.S. can leave Canadian speculators and leisure-property owners exposed to a variety of problems. Notably, this is what the article details as things to consider:

·                    Prices - in spite of the drop in property values, there remains a lot on the market at a wide range of price levels; the slump may last into 2011, so you may not want to buy too early;

·                    Insurance – inquire into home insurance costs when calculating overall affordability (e.g. the frequency of hurricanes attacking the Florida coast has lead to higher insurance premiums for seaside properties);

·                    The dollar – while the Canadian dollar is nearing par with the U.S. dollar, keep in mind the possibility of our currency declining, and the impact of expenses such as condo fees and property taxes etc. no longer being as affordable;

·                    Liquidity – consider whether your prospective new property can be easily sold; if not, your estate may be left with an asset that is difficult to sell, which could delay the administration;

·                    Taxes – as a departure from the norm, there are no U.S. estate taxes in 2010 (legislators are pondering this issue); pay attention to developments in this area;

·                    Probate fees – probate fees in some states also might be applied to the property upon your death; consult with your cross-border tax adviser, and ensure that you have a valid will and power of attorney that address your U.S. property (preferably drafted in the state where it is located); and

·                    Rental cost - if you rent out the property, you will be subject to U.S. income tax on the U.S. rental income; this might mean an additional accounting expense to file dual tax returns.

In spite of all this, Mr. Archer notes one neat tax angle when buying a property in the U.S.  It could still qualify as your principle residence for the purpose of using the principle residence exemption, as long as the usual criteria are met, which could result in a reduction or elimination of capital gain tax.

Have a good day,

Natalia Angelini

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

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As I have been practising in the area of estate litigation for a few years, I occasionally think that I have seen it all; that every recurring story I hear about a family war tends to lose its originality. Not true. Take for instance a recent story that was posted online in the Telegraph, involving a U.S. estate fight.

Tasha Tudor was from New England and has been described as the “unconventional Martha Stewart.” Ms. Tudor died at the age of 92 following complications from a stroke.  The basis of Ms. Tudor’s estate dispute centers on her decision to leave almost her entire estate to her eldest son, virtually cutting out her three other children. 

The oldest son argues that his late mother intended to cut out his three siblings from her estate because they were estranged from her. One of the siblings, a U.S. Air Force lawyer, who claims he was not estranged from his late mother, has asserted that the 2001 Will is invalid on the basis that his older brother unduly influenced his late mother.

The dispute has gotten so acrimonious between the siblings that they could not even agree what to do with their mother's ashes. On motion to the Court, it was ordered that Ms. Tudor’s ashes be divided in half, with one-half to be given to the oldest son and the other half to his siblings. Lawyers are now fighting over who is responsible for a snow plough bill!

It is reported that some of the last words by Ms. Tudor were “Oh, will there ever be a cat and dogfight when I die. But I don't care. I won't be here to see it.” 

It is often difficult to comprehend the harsh realities of litigation until you step into the shoes of one of the parties. I wonder if Ms. Tudor were alive to witness the severity of this dispute whether she would take back those words?

Thank you for reading

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

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Listen to: Trustee Liability - Hull on Estates #202

This week on Hull on Estates, Bianca La Neve and Craig Vander Zee discuss ways to protect a Trustee from liability.

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

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

Craig R. Vander Zee - Click here for more information on Craig Vander Zee.

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Listen to: Planned Giving - Part 4 - Hull on Estate and Succession Planning #198

This week on Hull on Estate and Succession Planning, Ian Hull continues his discussion on charitable remainder trusts.

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

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

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Sara Crosbie, a writer with the Globe and Mail, recently published an article on the succession planning crisis looming over Canadian family businesses. In her article, Ms. Crosbie refers to a study completed by Deloitte and Touche, which indicates that two-thirds of Canadian families have no written contingency plans to guide them through a disability or death.

To understand the importance of family businesses to the Canadian economy consider the following study which was completed by Deloitte and Touche and found that “family businesses have 4.7 million full-time employees, 1.3 million part-time workers and sales of around $1.3 trillion.”

Ms. Crosbie states that the lack of succession planning could be attributed to the idea that most parents think, “there's nothing here to pass on”, but the children think, “actually, I'm quite interested in taking it on.” 

Dr. Pramodita Sharma attributes the lack of succession planning to the fact that “money and mortality conversations don’t usually take place until the head of a business is gravely ill. By then, it’s too late to start talking.”

Regardless of the cause, the consensus on resolving this looming crisis is rather simple, communication. Dr. Sharma says “Succession planning is either passing to the next generation of your family, passing to employees … selling it, to be merged or acquired by someone or it could be closing the business down.  That needs preparation, too. You want to get the maximum value out of the business so it has to be a pro-active succession plan. You don't want death to be the succession plan.”

Thank you for reading and have a great day.

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

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Listen to: Capacity Litigation - Hull on Estates #201

This week on Hull on Estates, Sharon Davis and Chris Graham discuss some recent capacity litigation cases.

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

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

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

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The BBC has reported on the successful challenge of a mother's Will by her daughter, Christine Gill, which had left more than £2m to the Royal SPCA.  What was remarkable was the fact that the daughter argued that her father unduly influenced her mother, who suffered from an anxiety disorder, into making a Will she did not want to make.  Certainly this is a rare case.

The BBC noted that this was "just the latest in a long line of high profile, and often bitter, disputes surrounding the estates of deceased family members."

The article went on to note that "it is difficult to pinpoint the exact reasons for such an increase, but the increased wealth generated by many ordinary people over the past two decades has been an obvious factor.  Other influences have been the sharp increases in house prices in the past decade or so, the current recession, and increasingly complex family structures, often with children from two or more marriages." 

In commenting on the Gill case, it was noted that the RSPCA, being a registered charity with a statutory duty to safeguard its assets, will likely feel compelled to appeal.

Have a great weekend!

David M. Smith

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

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There may be some out there who believe that the art of managing estate disputes is best learned by getting one’s hands dirty, by spending long hours poring over the finer details of probate law, by pacing the floors of the courtroom, perhaps even by shadowing a senior partner to soak up the nuances of the mediation process… Bah! For those of you looking to fast-track, you need only tune in on Saturday mornings for an abbreviated approach. To wit:

Operation Rabbit – an animated Looney Tunes cartoon first released in 1952, and featuring Bugs Bunny and Wile E. Coyote. The cartoon consists of about seven minutes of the Coyote scheming to trap and eat Bugs Bunny. In a clever attempt to turn the tables, Bugs arrives at Coyote’s cave claiming to surrender, and requests that Coyote sign as a Witness to his Last Will and Testament. Bugs conveniently hands Coyote a “pen” which is in fact a stick of dynamite. Coyote offers Bugs his best “How very boring” look and snuffs out the fuse, seconds before the fuse at the other end of the stick of dynamite explodes.

                                                                 
Dough-Ray-Me-Ow – a Merrie Melodies cartoon released in 1948, starring Heathcliff the Cat and Louie the Parrot. Heathcliff enlists Louie’s assistance to read a note (actually a Will) left behind by their owner. This gist of the note is that their owner has bequeathed $1 million to Heathcliff, unless Heathcliff happens to meet his demise, in which case, Louie is one bounteous birdie. Cue Louie’s plotting of the downfall of his feline companion.

I could provide other examples, but th-th-th-that’s all folks.
 

Jennifer Hartman, Guest Blogger
 

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Listen to: Planned Giving - Part 3 - Hull on Estate and Succession Planning #197

This week on Hull on Estate and Succession Planning, Ian Hull discusses the importance of charitable giving.

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

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

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The Arkansas blogosphere is abuzz over the colourful facts of Heirs of F.D. Goza, Jr., et al. v. Estate of William E. Potts, Deceased, a decision of the Arkansas Court of Appeals.  Relatives of the testator tried to propound a photocopy of his Last Will, arguing that he lacked testamentary capacity and was under insane delusions when he destroyed the original.  The Appelate Court affirmed the decision of the trial judge that the deceased validly revoked his Will and died intestate. 

The evidence of revocation was overwhelming: The testator wrote such phrases as “void”, "bastards" and "get nothing" over each paragraph, applied Liquid Paper over the names of the beneficiaries, and later shredded the document in front of his insurance agent.  The Court held that ”the evidence clearly showed that [the testator] was an irascible, angry, suspicious, controlling, profane, and difficult man for most of his adult life; however, we cannot say that the trial court erred in refusing to find that he labored under insane delusions.”

The remarkable aspect of this case is the fact that there was a credible and disinterested witness to the shredding of the original Will.  This fact certainly bolsters the presumption of destruction that exists in Ontario when the original Will can not be located on the death of a testator. 

David M. Smith

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

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The requirements of formal validity have, on occasion, bedeviled the Courts.  Presented with overwhelming evidence of testamentary intent, the Court's hands may nonetheless be tied by uncompromising legislative requirements.  

In Nova Scotia, the legislature proclaimed (on August 18, 2008) an amendment finally permitting the making of Holograph Wills.  Moreover, the amendment also permits Wills to be admitted to probate that do not meet the requirements of formal validity if the Court is satisfied that a flawed document nonetheless reflects the testamentary intentions of the testator. 

Lawyer's Weekly just reported on MacDonald v. MacDonald, a decision out of the Nova Scotia Supreme Court.  In this case, the testator made a Will entirely in her own handwriting but left it unsigned.  It was, however, witnessed and the two witnesses gave evidence that the testator had attested to it as her last Will in their presence.  The testamentary document before the Court in MacDonald therefore fell within both branches of the amendment to the provincial statute.  However, the Will was not admitted to probate because it was made prior to the proclamation of the amendment to the Wills Act.  Unlike Ontario's Succession Law Reform Act which provided for retroactivity to 1978, the Nova Scotia amendment did not have a similar clause.

David Morgan Smith

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

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Mr. Justice Brown recently considered whether to apply the doctrine of cy-pres in the matter of The Bank of Nova Scotia Trust Company v. Common Ground Women’s Centre, CanLII 2010 ONSC 63.

(The doctrine of cy-pres is discussed in Megan Connolly’s blog, here.)

In Common Ground, the deceased died in 2007, leaving a will dated 1997. The deceased’s will provided that the residue of her estate was to be divided “in equal shares among the following organizations which shall be in existence at my death…”, and went on to list 18 charities, one of which was “Common Ground Women’s Centre, 736 Bathurst Street, Toronto”. 

As it turned out, Common Ground Women’s Centre was in fact a charity, and had not been dissolved as at the date of death. However, it had ceased operations in or about 1997, and it had lost its charitable status.

An application to the court for directions was brought by the Estate Trustee. The following issues were raised in the application:

1. Was Common Ground in existence at the time of death?
2. If not, did the gift lapse, resulting in a partial intestacy, or did the doctrine of cy-pres apply?
3. If the doctrine of cy-pres applied, to whom should the Common Ground share be paid to?

As to the first issue, the court held that although Common Ground continued to have “legal” existence, the deceased’s wording of the Will was such that she intended that the charity be able to apply the gift to charitable purposes. Thus, the intention was that the charity be active and operating at the time of death: Common Ground was not.

As to the second point, the court found that the issue of determining whether there was a lapsed gift or whether the cy-pres doctrine applied did not arise. Rather, the specific language of the will, requiring that the charity “shall be in existence” avoided the problem.   As Common Ground was not in existence, the residue passed to the remaining 17 charities, in equal shares.

Thank you for reading. Have a great weekend.

Paul Trudelle

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

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Brittany Murphy, the star of many TV shows and movies (and, as I have just discovered, the voice of Luanne on TV’s The King of the Hill) died on December 20, 2009 at the age of 32.

It has just been disclosed that she has left her estate to her mother, Sharon Murphy. Her husband, with whom she was living, is expressly left out of the will. Her will, it is said, read: “I am married to Simon Monjack who I have intentionally left out of this will."

Monjack is reported to have requested that this clause be put in Murphy’s Will, which was made shortly after their marriage in 2007. In a prior handwritten will, Murphy also left her estate to her mother.

In Ontario, a married spouse who does not receive adequate provision under a spouse’s will has several options (should they choose to remedy the insufficient or non-existent bequest). The surviving spouse would have the right to elect for an equalization under the Family Law Act, or for support under the Succession Law Reform Act. The surviving spouse may also have a claim on the basis of a constructive trust, or proprietary estoppel.

Thanks for reading.

Paul Trudelle

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

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Sometimes confusion arises as to the distinction between commissioners for taking affidavits, and notaries public.

In Ontario, affidavits for use in court must be commissioned by a person authorized to administer oaths or affirmations.   The Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17 stipulates how a person becomes authorized as a commissioner for taking affidavits. Any lawyer in Ontario is, by virtue of that office, a commissioner for taking affidavits in Ontario. There are other specific groups (such as judges or MPs) who are commissioners ex officio. Others can be appointed by the Lieutenant Governor as commissioners. Such appointments are limited in duration, and may be limited as to territory or purpose.

In other circumstances, documents or signatures often need to be notarized by a notary public. In our practice, banks and other institutions usually require an original of a document such as a power of attorney, will or Certificate of Appointment, or a notarial copy of it, before they will act on it.

Unlike commissioners for taking affidavits, lawyers are not automatically notaries public. Notaries are appointed pursuant to the Notaries Act, R.S.O. 1990, c.N.6. Notaries are also authorized as commissioners for taking affidavits in Ontario. To become a notary, an application must be made and the appropriate fees paid. The current fee for a lifetime appointment for a lawyer is $145. Lawyers do not need to take an examination to become a notary: anyone other than a lawyer must complete an examination. Applications may be requested from the Ministry of Government and Consumer Services, Official Documents Services, 9th Floor, 77 Grenville Street, Toronto, Ontario, M5S 1B3. The telephone number is 416-325-8416.

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Last week I heard a report on CBC Radio, and read an article in the Globe and Mail about a new website, Please Rob Me, that takes information posted on Twitter from a location-sharing program Foursquare and posts it, showing when people are not home.
 

The point behind the website is to drive home the message that sharing too much information may be harmful, and can be easily misused.
 

However, as noted in the Globe article, break-ins are usually crimes of opportunity, and in most cases are not highly planned.  There are many low-tech ways of determining whether someone is home or not.
 

The story and the website reminded me of what was most likely an urban legend that I heard a long time ago to the effect that robbers  would review obituaries and determine the time of a deceased's funeral. They would then look up the deceased's address old-school style (using a phone book), and rob the deceased's home during the funeral, knowing that no one would likely be home, and that neighbours may also be at the funeral.
 

Same idea, different technology.
 

Thanks for reading,
 

Paul Trudelle

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

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The Globe and Mail recently featured a new book, Bargaining with the Devil: When to Negotiate, When to Fight, by Robert Mnookin. In reading the article, I was impressed with how relevant the discussion was to estates matters.

In the article, Mnookin says that some of the most difficult conflicts to negotiate are those where the adversary is seen as being untrustworthy - an adversary "who's either harmed you in the past or is out to harm you in the future and whom you may even think is evil." Matters in the estates context often pose these types of challenges. Disputes amongst family members often arise out of a lack of trust, and in many cases, the other family member is labelled as "evil". 

Further, in the estates context, emotions often run high. This, says Mnookin, is usually an impediment to a negotiated settlement. "Strong emotions can get in the way of clear thinking."

Mnookin also points to another impediment to negotiated resolutions that we see in many estates matters. In many cases, parties to a negotiation are wary of settlement because it is believed that what is good for their adversary is bad for them. Mnookin refers to this as "zero-sum thinking".

Taken a step further, even if a settlement is good for a party, it is often not acceptable to that party because the party does not want to let the other side off easily: the party wants to punish the adversary for what they have done, or for what it is believed that they did.

Mnookin concludes by noting that in many cases, emotion wants to fight, even though this may not be in your best long-term interests. However, there are other cases where the fight really is the better alternative.

Thank you for reading.

Paul Trudelle

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