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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Hull and Hull LLP is the proud sponsor of a corporate team in this years’ Paddle the Don event.

This annual event, put on by Toronto and Region Conservation, allows canoeists to paddle down the Don River, from Eglinton to the mouth of Lake Ontario. 

In addition to allowing us to enjoy a day in nature within the city, the event serves as a fundraiser for Don River regeneration projects. 

The river is making a magnificent recovery, and is not the Don River that it was in the 1970’s. It is becoming more like the Don River as it was in the 1870’s. In my neighbourhood, near a tributary near Finch Avenue, trout have been spotted. Beaver are returning to the area, and deer have been seen on many occasions. 

For more information on the Paddle the Don event, visit Paddle the Don. 

Unfortunately, the event is fully booked for this year. However, it still is possible to contribute. To sponsor our team, visit Paddle the Don - 2010 : Volunteer Page

Thank you.

Paul E. Trudelle - Click here to learn more about Paul Trudelle.

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The past two years saw Wall Street virtually melt down.  The global economy coughed and sputtered, trade was disrupted, general panic ensued.  Now it appears that a group of significant countries may default on their respective debts, starting with Greece, then Spain, Italy, Ireland, Portugal.  The risk appears to be that the financial structures of these countries will collapse like dominos: first their creditworthiness ratings get downgraded, one country after the other, raising the cost of borrowing to finance debt payments to the point where they default, and one country's collapse will trigger a similar process in the next. 

This could be spreading though the global financial system like "ebola", causing a deeper crisis.  Britain may be hit.  Asia is already seeing market fluctuations.  Not to be overly dramatic, but the National Post headline "Greek debt crisis sweeps all before it" pretty much describes the news chatter.  Canada has already been affected. 

This may have professional relevance for the estates and trusts bar.  Events like this often seem to involve rapid exchange rate fluctuations.  It may be a good time to ensure that trustee clients, particularly those holding assets denominated in foreign currency, have been advised or reminded of their obligations to invest trust property in accordance with section 27 of the Trustee Act (the Prudent Investor Rule), and that exchange rate fluctuations could be seen by a court as being relevant to their management decisions.  A court might require a trustee to indemnify the beneficiaries to the extent of a loss due to exchange rate fluctuations, if the court finds the standard of care defined in section 27 has not been met.

Of course, mere lawyers can neither advise (or even calculate) the prudent level of exposure, nor can we predict fluctuations.  Anyone who can predict the exchange rate fluctuations would not need to practice law.   But we can point out the Prudent Investor Rule and draw attention to the potential risks that exchange rate fluctuations pose, so clients can decide for themselves.

Regards,

Christopher  M.B Graham - Click here to learn more about Chris Graham.

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A fifth edition of the Diagnostic and Statistic Manual of Mental Disorders (known as the "DSM-IV") is imminent, according to the chair of the task force responsible for the fourth edition, Dr. Allen Frances, quoted in this National Post article.  The DSM-IV is considered the most authoritative manual for defining and classifying mental illnesses. 

The relevance to capacity litigation is that the language doctors use to talk about patients and record their observations may change, perhaps significantly.  According to Dr. Frances, revisions to the definitions of attention-deficit hyperactivity disorder, autism and childhood bipolar disorder (i.e., manic depression) resulted in an unintended 40-fold increase in rates of diagnosed bipolar disorder.  A patient's diagnosis is a major variable in his or her treatment.  There was a dramatic increase in prescriptions of anti-depressants over this period.

Revised definitions would not necessitate corresponding changes in legal capacity, of course.  The tests for the various levels capacity are functional in nature; they evaluate an individual's observed ability to make decisions and do things.  Good capacity assessments tell a story, and the elements of the story must support the conclusions reached.  If not, the assessment will be rejected.  Re Koch is instructive on this point.  It is hard to read the judgment and imagine that including medical terms would have made any difference at all. 

On the other hand, changes to the DSM-IV may be very relevant for expert opinions on capacity given after an individual's death, where the opinion relies heavily on medical reports and observations of treating physicians to assess an individual's capacity at a specific time during that individual's life. 

Have a great day,

Christopher M.B. Graham - Click here to learn more about Chris Graham.

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Billionaire and recently deceased American shopping mall developer Melvin Simon's heirs are fighting over his last will.  Mr. Simon's children from his first marriage are challenging a will that changed the distribution of his estate in favour of his second wife.  Aside from the glamour factor, the case is interesting in that an allegation of fraud was recently dismissed on the grounds that "[t]he complaints fail to allege affirmative misrepresentations that can support a claim of actual fraud".

This illustrates an important point in estate and trust litigation.  Ontario's Rules of Civil Procedure similarly requires pleadings that contain allegations of fraud or breach of trust to contain full particulars:

"Rule 25.06(8)  Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred."

This could theoretically present beneficiaries challenging the actions of a trustee, since the trustee frequently has the particulars and the beneficiaries do not.  In practice, this problem rarely arises because most litigation occurs in the context of a passing of accounts, where it is unnecessary to make allegations against the estate trustee.  Instead, under the procedure in Rule 74, the beneficiaries can simply file and serve a Notice of Objection to Accounts challenging transactions or omissions in the trustee's accounts.

After filing their Notice of Objection to Accounts, the beneficiaries can then bring a motion for an order giving directions (or an order for assistance) that will provide for the disclosure of the particulars they think exist.  After receiving full disclosure, the beneficiaries should in a position to make a better-informed decision on whether to add such allegations to their pleadings. 

Where this process is anticipated, the order should specifically authorize the parties to return to court for further directions.  Of course, it would rarely even be necessary to allege fraud at all, since the facts that support the allegation of fraud can form the basis of an objection to the accounts without using the words "fraud" or "breach of trust", and this can achieve the same practical result without the risks associated with alleging fraud.  Beneficiaries can also avoid the risk of having their pleadings struck at an early stage.  

Have a great day,

Christopher M.B. Graham - Click here to learn more about Chris Graham.

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Trustees often run into difficulties when they pay themselves compensation prior to passing their accounts.  They are said to have "pre-taken" compensation, meaning having paid themselves compensation prior to passing their accounts.  Fortunately for guardians of property (and attorneys), section 40 of Ontario's Substitute Decisions Act allows guardians to pay themselves compensation at intervals during the guardianship before passing their accounts:

40.  (1)  A guardian of property or attorney under a continuing power of attorney may take annual compensation from the property in accordance with the prescribed fee scale.

(2)  The compensation may be taken monthly, quarterly or annually.

Amounts taken monthly or quarterly could be divisions of a calculated "annual" amount, but this provision contains no element requiring equal divisions.  Regardless of how the property guardian takes compensation, any payment is subject to court approval.  Clients applying for guardianship should always be advised specifically of this point: if the court later disagrees with the compensation taken, the guardian may have to repay such amounts.  This holds true even where the Management Plan pursuant to which the guardian is managing the incapable person's property authorizes the compensation the guardian has taken.

This raises another important consideration for lawyers in the application for guardianship stage.  Any compensation taken, or claimed later on a passing of accounts, should not be inconsistent with the provisions of the Management Plan.  Because the right to compensation is statutory, as are the prescribed percentages (though subject to discretionary reduction by the court), there is no need to declare an intention to take compensation in the Management Plan.  But if the Management Plan contains a provision disclaiming compensation, for instance, no compensation should be taken during the guardianship.

Have a great day,

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

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Today is the anniversary of the birth and the death of William Shakespeare, revered poet and renown playwright of Stratford-on-Avon, England. (1564-1616)

Francis Collins was the lawyer who drew Shakespeare's Last Will and Testament. Though almost 400 years ago, and spelling aside, estate planning considerations were much the same, with family politics playing a great part in the drawing of the Will. 

Apparently, Shakespeare called on his lawyer to amend his Will, which was signed on March 25, 1616, due to his ill health and the marriage of his youngest daughter, Judith, to a man of less than reputable character. He left most of his estate to his eldest daughter, Susanna, who was fortunate enough to marry a well-respected doctor about town. Shakespeare and his wife, Anne Hathaway, had one more child, a son (Judith’s twin), who died at age 11. Anne got the “second best bed” and some furniture.

While not mentioned in the Will, rumour has it the famous Bard had an illegitimate son, Sir William Davenant, who appeared to have inherited the most valuable asset of all, Shakespeare’s talent. Davenant was an extremely successful playwright, theatre manager and poet in his own right.

Click here for the family history of Shakespeare’s children and Sir William Davenant. 

If all this talk about Shakespeare and lawyers has put you in the mood for some entertainment, check out “The Lawyers’ Show” rendition of Shakespeare’s A Midsummer Night’s Dream performed by 28 lawyers on June 11 & 12, 2010 at the Berkeley Street Theatre (a Nightwood Theatre production). 

And that concludes my blogging for the week. “Parting is such sweet sorrow”. Have a great weekend!

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

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Spring is a time for conferences and events.  Here are a few upcoming Estates and Trusts programs you might be interested in.

The Ontario Bar Association is having its annual Dinner with the Honourable Estates List Judges on Tuesday, April 27th at 6:00 p.m. at the OBA Conference Centre in Toronto. It is a great opportunity for estates practitioners to mingle with their own as well as with the Honourable Justices Brown, Conway and Strathy. It has been over a year since the Toronto Estates List Practice Direction so come on out and give some feedback! Last year's dinner was fun and informative so I expect more of the same this year.

Click here for details and registration.   
 
The OBA is also holding an event on Thursday, May 20th from 1:00 to 4:30 p.m. entitled "Solicitors as Attorneys, Trustees and Estate Trustees - What You Need to Know". If you are a lawyer who has taken on any of these roles, or intend to, this program is for you. "Learn how to get paid, how to avoid being sued, and how to manage disputes with family members or co-trustee". That pretty much says it all.

Click here for details and registration.

Osgoode's 7th Annual Intensive Wills & Estates Workshop, with Hull & Hull LLP's own Jordan Atin as Workshop Leader, takes place over three Thursday evenings, June 10, 17 & 24, and runs from 6:00 - 9:00 p.m. at the Osgoode Professional Development Centre, Toronto. Jordan has certainly enlightened me on many occasions so I'm sure he can do the same for you.  For a preview, check out this link to see Jordan on Canada AM.

Click here for details and registration.

That should be enough ongoing learning to keep you busy until summer vacation…enjoy!
 

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

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In Quebec, while formal and holograph wills are recognized, there is also a third kind of will called a notarial will, which involves more formalities than the other two. 

A notarial will is a will drawn by a notary, who ensures the formalities in articles 716 and 717 of the Civil Code of Quebec are observed. It is generally made before the notary in the presence of one witness, though in special circumstances two witnesses are required; for example, if the testator is blind or cannot sign for him or herself. The will must indicate the date and place it was made.  Once the will has been read by the notary in the presence of the testator and the witness, all sign the will in each other’s presence.

The original will is kept by the notary, and the Chambre des notaries maintains a register of all notarial wills. In Quebec, notarial wills do not require probate and are more difficult to contest in court.

Under section 15 of the Estates Act, R.S.O. 1990 c. E.21. A notarial will made in Quebec may be admitted to probate in Ontario without production of the original will upon filing a notarial copy with the other proper proofs to lead grant.

To Apply for a Certificate of Appointment of Estate Trustee with a Will for a notarial will, you must file an Affidavit of Execution by the notary, which is not a requirement in Quebec.  If the notary cannot be found, the Estate Trustee should file an affidavit explaining why together with an affidavit from any other person present when the will was executed, even though that person did not sign the will as a witness.

If neither the notary nor any witnesses can be found, the Estate Trustee must file an affidavit indicating attempts to locate them together with an affidavit by a person (not a beneficiary) who can attest to the signature of the deceased. 

If no witnesses can be located, the Estate Trustee can file an affidavit and draft order in support of a motion to dispense with the affidavit of execution.

If you would like more information on wills in Quebec, see this Government of Quebec website.

Thanks for reading!

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

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Yesterday I blogged about the usefulness of blogs for lawyers. Today I will provide some specifics and recommend a few blogs to you. 

The advantage of blogs as a publishing vehicle is the access to information in real time. The latest news and topics are always available and you can get your own information out to the legal community and to potential clients without having to wait for the printing press. The pressure is a bit less as well because on some level blogs are meant to entertain, and no one expects them to be perfect – blogging is, after all, immediate media. 

One well-respected Canadian law blog that has been around since 2005 and has many regular contributors is Slaw.ca. Slaw provides a variety of high-quality information relevant to the legal profession and editors make sure that content is appropriate for its intended audience, comprised mostly of lawyers, law librarians, legal academics and students – i.e. a general level of legal information is assumed. Note that you will still see this caveat, which illustrates exactly why lawyers are often hesitant to blog: “But please note: we do not offer legal advice, even in the most vague terms.” 

Another great blog you should check out is practicePRO’s avoid a claim blog with a tagline of “Where claims happen, Why claims happen, And what you can do to avoid a claim happening to you”. Now that is a blog we should all be reading on a regular basis! 

Enough about information and risk – what about good old fashioned business? Sometimes lawyers can use a little advice in this area also. Check out this Canadian legal marketing blog  to pick up a few hints and tips so you can not only be smart, connected and well-informed, but be able to pay to pay the bills while doing so.

Now you are ready to go out there and blog!

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

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Blogging has certainly become popular in the last several years as an important source of information and communication. So much so that even lawyers have jumped on the bandwagon. And who would have thought? Being the risk-averse creatures we are, you would not expect publishing our musings for the world to read to be a natural fit; after all, law school is spent teaching you how to avoid risk or, perhaps, how to remedy the consequences of risks taken by your clients. And so, lawyers were slow to wade into the vast sea of bloggers. 

But is blogging so different from anything else we do? Writing is a large part of a lawyer’s profession. Like any profession, education and the sharing of information with colleagues and the public in general are required not only to ensure you keep on the cutting edge of the law but also for marketing purposes. 

Today, the World Wide Web is as acceptable as the golf course for legitimate networking and collegial interaction. You’ll also find that lawyers are now increasingly found on LinkedIn (the professional’s version of Facebook or an electronic rolodex if you will). You can find me on there along with many of my Hull & Hull LLP colleagues. It is nice to know that whether you like to wear golf shoes or slippers while networking, the choice is yours. 

There are some excellent law blogs out there and if you’d like to see just how many lawyers are blogging as proof of my claim, check out  this website  where you will find blogs on almost every legal topic imaginable (that was a challenge to think up one that isn’t covered yet)!

Stay tuned for tomorrow’s blog when I will point you to some interesting blogs you may find of use including a blog specifically designed to help lawyers avoid risk. Very clever…..

Happy Monday!

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

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Estate planners now have yet another issue to address: how to deal with a testator's digital assets. 

The term "digital assets" (wikipedia entry) generally refers to email, social media, and other online accounts, protected by a password and right to use a specific account.  People are now commonly storing huge amounts of unique data such as photographs, emails and any form of document.  The Michigan case where a court ordered Yahoo to allow executors to access a deceased's email account notwithstanding that Yahoo's terms of use and privacy policy did not allow for a transfer of access, is already five years old.

This may already be a professional liability issue.  The information stored in relation to the "digital assets" is arguably no less important than their predecessor "physical assets".  I say "predecessor" because for many people, physical forms of these assets are already quaint.  Other digital assets could have objective financial value; for instance, a PayPal account with a substantial balance, as Michael Panchieri points out.

Without addressing the swamp of legal issues associated with digital assets (even scratching the surface in a meaningful way would require many blogs), I recommend you peruse the following list of sources from Ontario and other jurisdictions to get a sense of how digital assets might fit into an estates plan:

-> mybangalore article expanding on how digital assets fit into estates

-> Dennis Kennedy's article in the American Bar Association's online e-zine Law Practice Today (attribution) 

-> Florida lawyer David Goldman has a must-read blog on what may be a fundamental planning challenge inherent to the nature of the digital asset (hint: it is a license that expires on death...)  

-> a general FT.com (UK) article on companies that offer services to store and pass on passwords and login credentials, link to this example of one such service provider, Entruset.

Thanks for reading,

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

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Section 35 of the Estates Act establishes a general requirement that estate trustees (though not executors) post security bonds.  Rule 74.11(1) of the Rules of Civil Procedure contains a mechanism defining the amount and form of the bond.  Of course, many if not most applications for a certificate of appointment of estate trustee with a will include a request for an order dispensing with the requirement to post a bond.  Rule 74.11(1). 

Authority for a court to make an order dispensing with the requirement to post a bond is found in section 36 of the Estates Act:

Trust companies need not post security bonds pursuant to section 175(4) of Ontario's Loan and Trust Corporations Act:

"(4)  Despite any rule, practice or statutory provision, it is not necessary for a trust corporation approved under subsection (2) to give any security for the due performance of its duty as executor, administrator, trustee, receiver, liquidator, assignee, guardian or committee unless so ordered by a court."

Of course, section 40 of the Estates Act allows an interested party to bring a motion to impose the requirement to post a bond or increase the amount of an existing bond (the corresponding Rule is 74.11(2)).

Enjoy your day,

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

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Rules 74.16 to 74.18 provide the framework for a passing of accounts application.  Rule 74.18(12) is a useful limitation clause that provides counsel with legal authority to attempt to bar new issues from being raised at the hearing:

"(12)  No objection shall be raised at the hearing that was not raised in a notice of objection to accounts, unless the court orders otherwise. "

This provision can be particularly useful in hearings where there are defined objections but the parties are simply going through the accounts, line by line.  It is an especially handy tool to assist the court as legal authority to stop the frivolous allegations or tangents that can side-track hearings. 

Of course, Rule 74.18(2) is subject to the discretion of the court, so the provision's usefulness is limited.  Every hearing is unique, but it is unlikely that a judge would apply this provision to a fresh objection that appeared to have merit, since ultimately it is the court that must be satisfied the accounts are valid. 

 Have a great day,

Christopher M.B. Graham – Click here to learn more about Chris Graham.

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Listen to: Planned Giving – Part 6 – Hull on Estate and Succession Planning #200

This week on Hull on Estates Ian and Suzana continue their discussion on planned and charitable giving. Key quotes mentioned are from the book “The Art of Giving: Where the Soul Meets the Business Plan” by Charles Bronfman and Jeffrey Solomon.

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

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

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As an avid sports fan, I enjoy watching the physical nature of most sports. Recently, our media has reported on the severity of head injuries, which are caused by “head shots”, and the need to implement rules in professional sports to prevent catastrophic head injuries from happening.

Alan Schwarz, an author for the New York Times, recently wrote an article about a loophole in the California workers compensation system that allows retired professional athletes to file a claim for injuries sustained decades before, particularly retired N.F.L. players.  

Schwarz states, “Most states require workers’ compensation claims to be filed within one to five years of the injury; California’s statute of limitations does not begin until the employer formally advises the injured worker of his or her right to workers’ compensation.” Also, California’s workers compensation statutes “require a professional athlete to have played only one game of his or her career within state borders to file a full claim for cumulative injuries.” The logical policy reason behind this legislation is to protect outside workers who temporarily pass through the state, like truckers or flight attendants.

As you can imagine, this loophole has opened the flood gates for retired athletes to file their workers compensation claim. In fact Schwarz states that “about 700 former N.F.L. players are pursuing cases in California, according to state records, with most of them in line to receive routine lump-sum settlements of about $100,000 to $200,000.”

What makes Schwarz’s article interesting is the claim filed by Ralph Wenzel. Wenzel has filed a claim arguing that his dementia at 67 years of age is related to his career as an N.F.L. lineman between the years of 1966 to 1973. The theory of Wenzel’s case is that “hitting your head over and over on the football field causes certain conditions.” In fact, researchers at “at the University of North Carolina have recently linked pro football careers and concussions with heightened rates of depression, mental decline and Alzheimer’s disease.” 

As we continue to see a rise in those who are diagnosed with dementia and Alzheimer’s, I think it will be interesting to see how the sporting industry reacts to this disease, particularly, the rules each professional league implements to eliminate “head shots.”

Thank you for reading.

Rick Bickhram-Click here for more information on Rick Bickhram

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We repeatedly hear about the grim details behind Alzheimer’s disease. In a previous blog titled “The Grim Toll of Alzheimer's”, I touched on a reported study called The Rising Tide: The Impact of Dementia in Canadian Society.   This study has cited that as our population continues to age, the number of people suffering from Alzheimer’s disease is expected to double to 1.25 million within 30 years. Again, another grim statistic.

Today, I blog on another Alzheimer’s study, which fortunately does not have such grim details. In a recent article, Lesley Ciarula Taylor states that specialists in Rochester, Minnesota have discovered “a cheap and easy memory test can predict who will develop Alzheimer’s disease with almost perfect accuracy.” The Free and Cued Selective Reminding Test is used to distinguish normal aging memory loss from a degenerative brain disease. 

Taylor states, “the cost is very low, much lower than an MRI. The hope is to be able to identify the disease as quickly as possible.”

There is no cure for Alzheimer’s. Diagnosing the likelihood of being vulnerable may not necessarily lead to a cure, but at least specialists in this area can now ask new questions that potentially could lead to different angles on handling this disease.

Thank you for reading,

Rick Bickhram-Click here for more information on Rick Bickhram

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Shortly after Farrah Fawcett’s death in June 2009, there was some controversy over the terms of her last Will. The bulk of her estate was apparently left in a lifetime trust for the benefit of her 24-year-old son, Redmond. The purpose of the lifetime trust, which Redmond will never personally control, is to provide support to him during his struggle with drug and alcohol addiction. Part of Fawcett's estate was also left to her father, and The Farrah Fawcett Foundation, a private foundation founded by Fawcett in 2007 and dedicated to funding cancer research. Nothing was left to Fawcett's long-time partner and the father of Redmond, Ryan O'Neal. 

There is now renewed controversy involving the late actress’ estate. Fawcett’s estate recently sued the producer who collaborated on a documentary with her, claiming, among other things, that he misused her company's funds. The producer has retaliated, claiming in his responding materials that the estate has withheld money from some of its beneficiaries and that the lawsuit against him is an example of the estate trustee’s misuse of estate funds. 

Surely, Farrah Fawcett did not wish for her estate to be embroiled in controversy but as we who practice estate litigation know all too well, testators can never fully control events surrounding their assets and estate after death.  

Thanks for reading,

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

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Listen to:  Planned Giving - Part 5 - Hull on Estate and Succession Planning #199

This week on Hull on Estate and Succession Planning, Ian and Suzana continue the discussion from last week on the importance of planned and charitable giving with a focus on the book “The Art of Giving Where the Soul Meets a Business Plan” by Charles Bronfman and Jeffrey Solomon.

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

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

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As noted in past blogs and podcasts, the modern rule that “costs follow the event” also now generally applies to estate litigation. However, as demonstrated by a recent case out of Alberta, there are still instances where an unsuccessful party will not be held responsible for the costs of the successful party and will also recover their own costs from an estate. 

In Re Foote Estate, the Deceased’s widow and children had commenced an application for the advice and direction of the Court as to the Deceased’s domicile (i.e. where, legally, the Deceased lived) as well as the validity of a “poison pill” clause in the Deceased’s Will (i.e. a provision disinheriting a beneficiary who challenged the Will). The widow and children wanted to commence support claims against the estate, and were concerned about the poison pill provision. They also realized that the Deceased’s domicile at his death would determine the applicable law with respect to their support claims. The Deceased had been born, raised and ultimately died in Alberta, but he had obtained permanent residency status on Norfolk Island during his life. He also had a significant connection to British Columbia. The widow and children argued that the Deceased had been domiciled in Alberta or British Columbia at the time of his death. The executor and the two residuary beneficiaries (both charities) argued in favour of Norfolk Island. A three-week trial was held and Justice Graesser ruled that the Deceased was domiciled on Norfolk Island, an Australian territory, at the time of his death. 

The respondents, as the successful parties, subsequently sought their costs against the applicants, Deceased’s widow and children. The latter, although unsuccessful in their application, sought their costs from the estate, valued at over $100 million. 

After a thorough review of the law concerning costs in estate litigation and its application to the case at hand, Justice Graesser ultimately held in his costs decision that the matter clearly fell within the exceptions to the modern rule. Accordingly, the executor and the residuary beneficiaries were not entitled to recover any of their costs from the applicants, the widow and children. As for the applicants, Justice Graesser ruled that this was an appropriate case for them to recover their costs from the estate, as, among other factors, the Deceased’s conduct caused the litigation, the applicants prosecuted the litigation in a diligent and efficient manner and there was no basis to criticize their conduct.

Thanks for reading,

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

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Last year, I blogged on the controversy surrounding the estate of the late boxing champion, Arturo Gatti. The Montreal-born boxer and two-time world champion had died July 11, 2009 at a posh Brazilian seaside resort. Controversy surrounded his death, with his young widow initially suspected of killing him. Brazilian officials later ruled Gatti committed suicide by hanging himself with a bag strap.

At issue in this estate fight is the validity of two Wills that distribute the late boxer’s estate in very different ways. Gatti’s young widow, Amanda Rodrigues, has submitted a 2009 Québec Will that leaves Gatti’s entire estate, estimated to be $6 million, to her. An earlier 2007 Will signed in New Jersey leaves the bulk of the estate to Mr. Gatti’s mother. 

In November 2009, Gatti’s young widow was awarded $40,000.00 to cover legal fees and child care costs for their baby son. In that decision, the judge urged the warring parties to settle to avoid a lengthy and costly court battle that could eat away at the estate. It appears that this advice has gone unheeded, as both sides have continued the fight. 

In a recent decision out of Québec, Ms. Rodrigues was awarded a further $100,000.00 from the estate. She received the money as financial compensation for the legal fees she was forced to pay following the former boxing champion's death. She also received $2,000 a month in child support payments for the couple's 18-month-old son. This is in addition to the $2,500 per month already awarded to her by a New Jersey court. The final bell won’t be ringing anytime soon in this estate fight!

Thanks for reading,

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

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Collaborative Practice is a concept and practice that for some time has been familiar to and used by family law lawyers in Ontario (since about 2000), but to date has not formed part of any estate lawyer’s practice.  This may be changing soon. 

On April 7, 2010 an information session is being offered to estates lawyers, where the nuts and bolts of Collaborative Law will be shown, together with how it might apply in an estates practice - whether as a litigator or an estate planner.

Collaborative Practice Toronto’s website and The Collaborative Family Lawyers of Canada website are helpful places to look if you want to learn more about this unique model being applied in the family law context.  These sites note certain objectives, components and benefits to such an approach, which include:

·         resolve family law disputes without going to court or threatening to go to court (spouses and both collaborative lawyers sign a contract agreeing not to go to court);

·         find and focus on your common interests;

·         remain focused on the best interests of children;

·         understand each other's concerns;

·         ensure full and complete disclosure of all important information;

·         negotiate in a principled, dignified and respectful manner;

·         use informal discussions and conferences to settle all issues;

·         explore as many options for settlement as possible;

·         reach creative resolutions that best meet the goals and priorities of the individual family; and

·         spend less time and money to settle matters (this practice is generally less expensive than litigation).

There are certainly differences between the dynamics and factors at play in estates disputes versus family law matters. It will be interesting to see if this practice will be formally introduced in the estates bar and, if so, whether it will be a workable and beneficial mechanism for all concerned. 

Have a good day,

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

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Listen to: Bequests to Minors – Hull on Estates #204  

This week on Hull on Estates, Nadia Harasymowycz and Paul Trudelle discuss bequests to minors and how a state trustee can deal with any issues that may arise. 

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

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

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

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In Re Estate of John Mitchell, the Endorsement of The Honourable Justice Brown clarifies expectations of the court in respect of requests for increased costs on unopposed applications to pass accounts, as the Rules of Civil Procedure contain some ambiguity in this regard.

His Honour notes that Rule 74.18 specifies the materials that must be filed initially on an application to pass accounts and where the application will be unopposed and proceed without a hearing. 

However, the Rule does not expressly stipulate the materials that should be filed where the application will proceed unopposed, but with a request for increased costs so that a hearing must be held. His Honour states that the applicant should ensure that the following materials are filed with the court in such situations:      

·                    proper initial application materials: Rule 74.18(1);

·                    a supplementary application record containing materials specified by Rule 74.18(9);

·                    additional evidence (a simple affidavit) that contains:

·                    the request for increased costs in proper form;

·                    proof of service of the request on all affected parties;

·                    a statement explaining the responses of affected parties to the request; and

·                    the details of and the reasons for the request, either through a detailed bill of costs or an easily understandable copy of the relevant dockets.

His Honour also stresses the importance of this last requirement, as a court cannot conduct a review of the request to ensure it is fair and reasonable without evidence describing the work performed, the time spent, the value of the work or the cost of such work.  Adequate evidence is essential.

Have a good day,

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

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In yesterday’s blog I touched upon the rule in Re Hallett’s Estate. In today’s blog I will touch upon the rule in Clayton's Case (1816), 1 Mer. 529, 35 ER 767 (Ch.). Again, 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 Clayton’s Case is generally described as the "first in, first out" rule. It holds that where a trustee mixes money from two or more trusts in one account and then removes money from it, the trustee is deemed to have taken out the money that was first deposited in the account. The reason for the creation of the rule in Clayton's Case appears to be to facilitate the tracing of funds in situations where the equities were equal and there may be difficulty in ascertaining the proportionate share to be awarded to each of the trusts in question. At its lowest common denominator, the rule in Clayton's Case appears to be a rule of convenience and administrative expediency.*