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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'Doctor shopping' is the practice of visiting numerous doctors, dentists, pharmacies and/or emergency rooms to fraudulently obtain prescriptions for non-medicinal use. Increasingly making headlines, doctor shopping is considered to be the most common means by which people addicted to prescription drugs get their hands on their drugs. It is often assumed that someone doctor shops for the purpose of feeding their own personal addiction, however, there is a subset of doctor shopping activity for the intent of street sale. Depending on the drug, street value can range from $0.25 to $75.00, per pill.

Is it illegal?  Under the federal Narcotic Control Regulations (made under the Controlled Drugs and Substances Act, 1996), “a person who has received a prescription for a narcotic shall not seek or receive another prescription or narcotic from a different practitioner without disclosing to that practitioner particulars of every prescription or narcotic that he or she has obtained within the previous 30 days”. To wit, in 2006, a Toronto woman was charged with filling prescriptions for almost 14,000 pills at nine pharmacies across the province.

How is it monitored?  Nine of ten provinces have some form of system in place to track prescription-related information such as double doctoring. As an example, in 2008, Health Canada ordered pharmacies in Atlantic Canada to track narcotic prescriptions by family physicians after rates of narcotics abuse were found to be highest in that region. However, since there is no national surveillance system in place, the monitoring of doctor shopping and fraudulent prescription drug acquisition in Canada is a patchwork approach, at best.

How big is the problem?  In 2002, Canada reported the fourth highest per-capita use of prescription narcotics in the world. The Centre for Addiction & Mental Health, in a study published that same year, indicated that 11% of admissions to substance abuse treatment programs in Ontario were for prescription drug abuse. A 2007 study released by the Canadian Centre on Substance Abuse (CCSA) cited evidence that “Canadians are among the heaviest consumers of psychotropic medication in the world”. And according to a 2008 study published in the journal Contemporary Drug Problems, North America has the world’s highest consumption of medical prescription opioids (consumption levels have, in fact, doubled in the past decade). Earlier this year, Narconon Alcohol and Drug Rehab Center reported that nearly half the calls they receive are with regards to prescription medications (primarily Oxycodone, Percocet and morphine).

How does prescription drug abuse relate to mental capacity?  The most coveted drugs targeted by doctor shoppers are the opioids (including morphine, codeine-containing Tylenol 2s, 3s and 4s, Percocet/Percodan, OxyContin and other pain-relieving agents) and the benzodiazepines (including Valium, Serax, Xanax, Ativan and Halcion and other agents used for sedation, relief of anxiety or as muscle relaxants). These drugs are known to have detrimental effects on perception, attention, alertness, memory, orientation, attention and decision-making.

Jennifer Hartman, guest blogger
 

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Stieg Larsson’s latest book, The Girl Who Kicked the Hornet’s Nest, came out last week.

Earlier, Diane Vieira blogged here on the estate of the best-selling author, who died in 2004. Diane noted that Larsson’s common-law spouse of over 30 years received nothing from Larsson’s estate. Larsson died without a valid will, and his estate, estimated presently as having a value of $30 million, passed on an intestacy to his father and brother. Under Sweden’s inheritance laws, the common-law spouse received nothing, and did not have a claim against the estate.

In a lengthy New York Times Magazine article entitled “The Afterlife of Stieg Larsson”, Charles McGrath reports in detail on the life and events subsequent to the death of Larsson.

McGrath notes that Larsson died without a valid Will. (Apparently, Larrson did leave a 1977 will, in which he leaves his estate to the Socialist Party in Umea: the will was not witnessed and is said to have no legal validity.) Although his long-time companion, Eva Gabrielsson, received nothing from his estate, she has become an object of intense sympathy in Sweden.

Gabrielsson also has a laptop containing ¾ of a fourth novel by Larrson, and possibly an outline for others. Larsson’s estate offered to give her their half of Larsson’s apartment in exchange for the computer, but Gabriellson refused. Last November, the estate apparently offered her $2.6 million for the computer, but Gabrielsson didn’t respond.

McGrath states that while Gabrielsson has no claim, she has asserted “a kind of moral entitlement”. In a National Post article, Gabrielsson is said to be claiming that she co-authored the books.

As is usual in these types of matters, great animosity has developed between the spouse and the estate.

Thank you for reading.

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

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Yesterday, I discussed Fort Sackville Foundation v. Darby Estate, 2010 NSSC 27 (CanLII). Today, I will discuss the matter of the costs of the proceedings, reported at .Fort Sackville Foundation v. Darby Estate, 2010 NSSC 45 (CanLII)

The court had dismissed the application by the charity for a declaration that it was the successor charity, or that it was entitled to the bequest upon the application of the cy-pres doctrine.

The charity requested solicitor and client costs from the estate. The successful residual beneficiaries suggested that the charity should receive no costs at all, or at best, party and party costs. The residual beneficiaries noted that any award of costs would come from their entitlement under the estate, and thus, in effect, the successful parties would be paying the unsuccessful party’s costs.

The court awarded solicitor and client costs to the charity. The court noted that the “dispute” was created less by the parties, and more by the wording used by the testator, which wording “fuelled” the issues. Although the arguments of the charity failed, they were “justified” arguments, and arguments “based on reason”.

In Ontario, the court has made similar costs rulings in circumstances where it can be said that the parties have acted reasonably in bringing the matter before the court. However, a different outcome might result if the court was of the view that one of the parties acted unreasonably.

Thank you for reading.

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

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John Darby died in 2008. In his July 2007 Will, he left his residence and contents to the “Heritage Society of Bedford” [Nova Scotia] on specific conditions. The conditions included a requirement that the Society commit to retain his property and contents as a heritage property; a commitment to use the building to house a museum or some other specified uses; to make such commitments within 1 year; and to open the residence for the stipulated purposes within 3 years. If they did not, the property was to fall into the residue.

However, at the time of his death (or at the time of the making of the Will, for that matter), there was no entity known as the “Heritage Society of Bedford”. There was a charity known as the “Bedford Heritage Society”. However, that charity disposed of its assets and surrendered its certificate of incorporation many years earlier.

The Fort Sackville Foundation claimed that it was the successor charity. The court rejected this claim, holding that there was no amalgamation. While the court will take a broad approach to legal successorship in such circumstances, it cannot find a successor where an entity ceased to exist.

The court went on to consider whether the doctrine of cy-pres applied. The doctrine will be applied where:

a.      the gift as it stands is either impossible or impractical to effect; and

b.      the donor expressed a general charitable intent in making the gift.

The court held that neither test had been met. 

As to the first branch of the test, the gift was not impossible or impractical to effect. Because the gift provided for a gift-over, it could readily be given effect.

As to the second branch, the conditions of the gift narrowed the focus of the gift so as to take away a general charitable intent. The purpose of the gift was to preserve the deceased’s property. If that could not be done, the proceeds were to pass to the residual beneficiaries. Thus, it was held that there was no general charitable intent.

As a result, the proceeds of the sale passed to the residual beneficiaries.

See here for the reported decision.

Tomorrow, I will turn to the issue of costs.

Thank you for reading.

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

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Listen to:Rule of Pecore -Hull on Estates #208

 This week on Hull on Estates, Chris Graham and David Smith revisit the decision of the Supreme Court of Canada and Pecore. This case considered the approach taken by Pecore.
 

The following issues are examined:
•    Applying the presumption of resulting trusts to various fact scenarios.
•    Evidence required to rebut the presumption for different classes of assets.
•    Types of corroboration permissible under the Evidence Act to rebut the presumption.
 

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

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

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

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Listen to: 21 Year Rule – Hull on Estates and Succession Planning - #203

This week on Hull on Estates and Succession Planning Ian continues the discussion surrounding different issues trust arrangements can bring about and solutions to these issues. The specific issue discussed in this episode is the 21 Year Rule. Ian discusses how it creates problems and possible solutions to look to.
 

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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In honour of Victoria Day, celebrated in Canada on the last Monday of May on or before May 24, and considered the first long weekend of the summer, I thought I would consider the terms of the last Will and Testament of Queen Victoria.

Queen Victoria was born on May 24, 1819, and died on January 22, 1901. She became Queen at the age of 18, and reigned as monarch for over 63 years, being the longest reigning monarch in history. She had 9 children (she was predeceased by 3 of her children), including her successor to the throne, Edward VII.

Unfortunately, very little information can be found online about Queen Victoria’s Will. However, while searching, I discovered that a legacy of sorts was recently sold at auction in Scotland. Queen Victoria’s stockings (circa 1870) were sold earlier this year for 8,000 pounds (about $12,000 CDN).                                                    

The prior owner, Mary Youings, said that her late mother gained possession of the stockings around 1910. She said that she did not know the circumstances of how her mother gained possession of the stockings. The Telegraph reported that upon Queen Victoria’s death, her undergarments and much of her wardrobe were distributed to members of the royal household.

In July, 2008, Youings sold a pair of Queen Victoria’s 50” waist bloomers for 4,500 pounds.

I hope you enjoyed your Victoria Day Weekend, and got a “leg up” on summer.

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

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Estates lawyers are particularly good at advising others as to the importance of an air-tight succession plan. But when it comes to our own succession planning, there are special considerations that lawyers, or any professional, should take into account.

Sole practitioners make up 23% of Ontario lawyers.   When you add the number of solos to those working in small firms, you get a whopping 97% of firms in Ontario with 1-10 lawyers.  In such situations, there may not be anyone ready, willing and able to step in for a lawyer who suddenly can not carry on his or her practice.  

Lawyers have ethical and professional obligations to their clients. This includes a duty to safeguard clients’ interests in the event of the lawyer’s untimely death, disability, impairment or incapacity. Not only could a client face significant prejudice or damages, but without proper planning, the obligations may fall to the lawyer’s family, causing additional stress no one would wish on loved ones.  

Here are some practical tips:

1. Make arrangements for an assisting lawyer to continue, close or transfer your practice on your behalf;
2. Store all critical information in a location that is easily accessed;
3. Have the appropriate Powers of Attorney in place that are required to allow the assisting lawyer to step in and run your practice (limited, bank, etc.); and
4. Include in your Will an executor who is a lawyer.

Click here for some guidelines for the lawyer stepping in to take over the practice from the Law Society of Upper Canada's Website.  Also from LSUC is the Succession Planning Tool Kit. See here and here for succession planning resources from the Law Society of British Columbia's website.   

For some variety, you might also want to pick up the materials from the 5^th Annual Solo and Small Firm Conference held May 14, 2010 in Toronto, where you can find tips on succession planning as well as other useful information to assist your practice. 

 Sharon Davis - Click here to learn more about Sharon Davis.

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The Court has discretion to order a capacity assessment pursuant to section 79 of the Substitute Decisions Act, if the person’s capacity is an issue in a proceeding under the SDA and it is satisfied that there are reasonable grounds to believe that the person is incapable.

Section 6 of the SDA defines the test for incapacity as follows:

• the person is not able to understand information that is relevant to making a decision in the management of his or her property; or
• is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

In determining whether to order a capacity assessment courts have considered the following to strike the appropriate balance between the autonomy of the individual and the duty of the state to protect the vulnerable:

1.      the purpose of the SDA and the terms of section 79;

2.      the nature and circumstances of the proceedings in which the issue is raised;

3.      the nature and quality of the evidence before the court as to the person's capacity and vulnerability to exploitation;

4.      if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;

5.      whether there are flaws on the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;

6.      whether the assessment will be necessary in order to decide the issue before the court;

7.      whether any harm will be done if an assessment does not take place;

8.      whether there is any urgency to the assessment; and

9.      the wishes of the person sought to be examined, taking into account his or her capacity. 

Where a capacity assessment has already been obtained, the court will be reluctant to order a further assessment unless it  has concerns about the adequacy or objectivity of the first assessment.  In Ranieri v. Ranieri Estate the court considered the factors above and refused to order a second assessment. 

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

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I recently attended a demonstration of a large firm’s intranet with my Knowledge Management colleagues. “KM” is a discipline that has emerged over the last several years that takes information management a step beyond the library. 

Knowledge is power as they say. In the internet age, however, knowledge is so easily accessible that it, alone, is no longer sufficient to ensure one remains competitive and successful. It is how you organize, access and use knowledge that has become the true source of power.

An intranet  is like a mini internet, but one that is secure and contains information only accessible by the internal group using it. It is a very effective way to disseminate news and to organize all the information required in a law firm in one easy location, right on your desktop.  The intranet worked in conjunction with the latest Document Management System and contained information ranging from human resources to legal research and precedents.

In larger firms with hundreds of lawyers in multiple cities, provinces and countries, there is so much information that tools to manage it are essential. For example, if you were looking for firm lawyers in Toronto who specialize in estates law and speak Igbo, you could find them in an instant on the intranet. You could even tell if they have capacity to take on extra work.

Of course, smaller firms do not have the same requirements as larger firms. The bulletin board and the water cooler may be sufficient in such environments for the exchange of important internal information.

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

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Listen to: Proprietary Estoppel – Hull on Estates #207

This week on Hull on Estate Rick Bickhram and Nadia Harasymowycz discuss proprietary estoppel, what it is and the three specific elements that are necessary to establish proprietary estoppel. For more information on proprietary estoppel, please check out an article written by Suzana Popovic-Montag in the latest edition of The Probater.

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

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

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

 

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Listen to: Avoiding Trust Issues - Hull on Estates and Succession Planning #202

This week on Hull on Estate and Succession Planning, Ian discusses ways to avoid the trouble a trust creates by using insurance products.

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

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

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My colleagues and I recently attended the 10^th Annual Fundraiser for Fanconi Canada, an inspiring event that raises money for Fanconi Anemia (FA), an inherited condition that leaves bone marrow unable to make new blood cells. 70 per cent of FA patients need a stem cell or bone marrow transplant. It occurs equally in males and females and is found in all ethnic groups. A truly non-discriminatory disorder.

FA is usually diagnosed in childhood, with the median age of diagnosis being 7 years old. Many affected do not live into adulthood. However, research is steadily improving the life expectancy of FA patients.

At the event I attended, the keynote speaker was a bright, articulate young woman in her early 20’s who had just graduated from University. She spoke eloquently and poignantly about what it means to have FA and how it pervades everything about one’s life. Like most young grads, she is applying for jobs, something she never expected she would be able to do. She is now coming to the realization that she must plan for her life and is moving forward with appreciation and optimism for the ordinary things many of us take for granted.

Estates practitioners know that it is important to plan for death; it is an inevitability that we will all face. But what the young woman with FA made so abundantly clear is that we must not forget to plan for life along the way as well.

If you would like to consider a donation or even plan for a charitable gift for Fanconi Anemia research in your own Will, see the Fanconi Canada Website.

Sharon Davis - Click here to learn more about Sharon Davis.

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A conversation about driving with dementia exploded in the press in recent weeks. Everyone is weighing in on this debate, with potential stakes running obviously high. Certainly the decision to take away a patient’s licence could never be undertaken lightly, so how can a physician accurately determine driving risks associated with dementia?

A patient’s score on the Mini-Mental Status Examination (MMSE) score, when considered on its own, is a surprisingly poor predictor of a driver’s ability to drive safely. In fact, studies have shown that as many as 76% of patients with mild dementia are still able to pass an on-road driving test. Last month, in a strong effort to refine the entire process of assessing driving risk associated with dementia, the American Academy of Neurology issued updated guidelines for physicians. These updated practice parameters take into account the following characteristics that have proven useful for identifying patients at increased risk for unsafe driving:

• Clinical Dementia Rating Scale (CDR);
• A caregiver’s rating of a patient’s driving ability as ‘marginal’ or ‘unsafe’;
• The patient’s driving history, including accidents and citations;
• Self-reported ‘situational avoidance’ [Studies have shown that self-restricted driving, perhaps by avoidance of highway driving or night driving, or driving in inclement weather, or simply reduced overall mileage, is an accurate indicator of a driver at increased risk];
• An MMSE score of 24 or less; and
• Aggressive or impulsive personality characteristics.

This multi-faceted risk assessment brings the Americans more in line with the current Canadian approach, as outlined in the Canadian Medical Association’s document: Determining Medical Fitness to Operate Motor Vehicles CMA Driver’s Guide which takes this stance: "The driving ability of people with mild dementia should be tested on an individual basis. Studies have shown that a significant percentage of those in the early stages of dementia are able to operate a motor vehicle safely."

Jennifer Hartman, guest blogger

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The pending implementation of the 13% HST will impact service providers and their clients, the legal profession being no exception.  Paying for services before July 1, 2010 provides an opportunity to avoid the tax.

Funerals are subject to the 5 per cent GST, but the HST will increase the cost of a typical funeral by some $500.00.  Pre-arranged funeral services are exempt if purchased, or payments are arranged, by June 30, 2010.

The Toronto Star has reported on “a frenzy of healthy people who are rushing to prepay for their own funerals in a determined effort to avoid the extra 8 per cent tax that kicks in when provincial sales tax is merged with the federal goods and sales tax on July 1."

The oft-stated maxim of the certainty of death and taxes converges over this issue.  While one of these certainties can't be eliminated, the opportunity to beat the HST by preplanning a funeral at least eliminates the certainty of otherwise paying this tax.   

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

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It is commonly understood that Canadian political parties are subject to rigorous rules respecting contributions. Failure to appreciate these rules presents a potential pitfall for the estates practitioner. 

Under s.405(1) of the Canada Elections Act, "No individual shall make contributions that exceed: (a) $1,000 in total in any calendar year to a particular registered party [and] (b) registered associations, nomination contestants and candidates of a particular registered party; (c) $1,000 in total to a candidate for a particular election who is not the candidate of a registered party; and (d) $1,000 in total to the leadership contestants in a particular leadership contest."

Subsection 405(2) states that subsection (1) "does not apply to contributions that are made by way of an unconditional, non-discretionary testamentary disposition (emphasis added)."

Accordingly, if a client wishes to leave a gift (i.e. a contribution) to a political party in his or her Will, the parameters of the Act need to be considered by the will drafter to see that the contribution is accepted.  A specific legacy would seem the best bet.  Moreover, the Act appears to provide no latitude to allow acceptance of testamentary contributions made in settlement of litigation or potential litigation.  If a contribution to a political party is a term of settlement of an estate dispute where all concerned agree that such accorded with the intentions of the deceased (yet were never formalized), such contribution may not be accepted. 

David M. Smith - Click here to learn more about David Smith.

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Are joint GICs to be considered differently from other jointly held accounts when considering whether the proceeds of such accounts are subject to a presumption of resulting trust for the estate of the deceased account holder?  Please read on.

In Pecore v. Pecore, the Supreme Court of Canada considered that, because it is common for elderly parents to hold accounts jointly with adult children for banking purposes, the starting presumption should be in favour of including the funds in the parent's estate. The adult child will then have the onus of proving that the parent intended to gift the funds to him or her.  The Court also addresses the evidence that may be used to defeat the presumption and prove that the parent intended to gift the funds in the account, including the following considerations: (i) whether the account documents show the parent's intent, (ii) who controlled and used the funds prior to the parent's death, (iii) whether the deceased parent had a power of attorney, and (iv) who paid the taxes on the account prior to the parent's death.  These considerations are fact-sensitive and that the trial judge is to consider the totality of the evidence and the weight to be placed on any particular factor. 

In Videchak v. Giarratano, a 2009 decision of Justice Matheson of the Ontario Superior Court, his Honour, applying Pecore, found that a joint bank account used to pay debts was impressed with a resulting trust for the benefit of the deceased parent.  In contrast, His Honour differentiated a jointly held GIC which was noted to be a savings vehicles and not for the payment of debts.  In the absence of a characteristic associated with such daily banking, the Court was of the view that the identification of the GIC as joint with right of survivorship was sufficiently determinative of the deceased's intention respecting that asset. As such, it passed to the joint account holders.

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

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Listen to: Rules – Hull on Estates #206

This week on Hull on Estates, Sharon Davis and Craig Vander Zee discuss two rules which arise when a trustee mixes trust funds with personal assets and when a trustee mixes assets from one trust with one or more trusts. These rules are called the rule in Re Hallets’s Estate and the rule in Clayton’s Case.

As discussed in the podcast, more information on these rules can be found in book “The law of trusts: a Contextual Approach”  By Mark R. Gillen and Faye Woodman.

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.

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

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Listen to: Tax Planning – Hull on Estates and Succession Planning # 201

This week on Hull on Estate and Succession Planning, Ian discusses tax planning and how tax issues are connected to estate planning. Ian focuses on four main issues of Canadian domestic tax planning. These issues are:

1.    Capital gains tax in Ontario and Canada
2.    The use of an estate freeze as a domestic tax planning tool
3.    Dealing with tax planning the context of an estate or the sale of a business
4.    Family succession generally
 

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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In the most recent issue of our firm's newsletter, The Probater (shortly to appear on our website), Suzana Popovic-Montag deals in depth with the issue of Proprietary Estoppel.  As Suzana explains, this equitable remedy provides a useful alternative basis for the estates litigator to advance a claim against an estate but only in the presence of the right set of circumstances.  In short, a promise made with the intention to induce and on which a promisee relies to his or her detriment may be actionable in equity.

In the estates context, a promise of marriage or a promise to make a Will, which promise is never acted upon to the detriment of the claimant, may give rise to a claim predicated upon Proprietary Estoppel. 

The recent Ontario Court of Appeal decision of Schwark v. Cutting (to which Suzana refers), although not an estates case, provides a useful overview of the remedy and, more specifically, assists in advising when the remedy is not available.  In short, the claimants/Respondents in this case sought to invoke the remedy when the owners of neighbouring lakefront property no longer permitted the claimants to have access through their property to Lake Erie.  Although the claimants were successful at trial, the Court of Appeal unanimously granted the appeal by the water lot owners on the basis that: (i) the claimants knew they had no legal right to use the water lots, (ii) there was no evidence of "holding out or inducement...which could be said to have caused the Respondents to believe they had some right or benefit over the water lots" and (iii) "there is nothing unconscionable about a property owner, who, having permitted his neighbour to use his property for a time, withdraws that permission"

Again, please check our website soon and read Suzana's Probater article for a more detailed discussion of this issue.

David M. Smith - Click here to learn more about David Smith.

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One of my first blogs (now colloquially referred to as the ‘thumb blog of 2008’) delved into the subject of cyberchondria, which was defined in the Globe and Mail as 'hypochondria on metaphorical steroids, its effects amplified by the staggering number of disastrous outcomes the Web can provide’. Well if ever there was a black hole from which the cyberchondriac could never hope to escape, it would be found in the Apps catalogue on your iPhone and would go by the collective name “Medical Apps”.

I’m no dummy. I can see the value in Heartwise Blood Pressure Tracker; you type in your blood pressure and heart rate and can then monitor trends over time. Handy app if I have a blood pressure problem. I get that.

Speaking of blood pressure, though, I’ll venture a guess that the Infections App would really do a number on a hypochondriac; everything you could ever want to know about anthrax, dengue fever, monkeypox and more, all at your fingertips.

And the temptation to self-diagnose must be irresistible if you’ve downloaded X-Rays, a nifty little App (free, no less), for identifying any sort of abnormality as a result of disease, injury, or simply poor genetic misfortune.

What I do find most unnerving are the Apps that are obviously targeting physicians. Instant ECG: An Electrocardiogram Rhythms Interpretation Guide is one example. Not sure how confidence-inspired I would be to watch my cardiologist whip out his iPhone to make sure I wasn’t in atrial fibrillation. Ditto for “ICU Pearls”, which the developer describes as ‘pearls of wisdom’ for the ICU doctor. Call me ungrateful, but if I’m in the ICU, I’m probably not there for a life lesson.

I scored an iTouch for Mother’s Day this year. I’m already getting wicked finger cramps exploring the full scope of what it can do. But don’t worry about me, there’s an App for that.
 

Jennifer Hartman, guest blogger

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The Sunday Times recently reported that two women were arrested for trying to push a dead relative strapped to a wheelchair onto a flight leaving out of Liverpool John Lennon Airport.  The charge - suspicion of failing to give notification of a death.

Police were apparently called when staff at the check-in desk became suspicious about the elderly man in the wheelchair. He was partially hidden behind sunglasses and did not appear to be moving.  While staff were told he was sleeping, it turns out he had been dead for some time.

It was reported that the ladies were likely attempting to evade the complex and costly process of repatriating human remains abroad - bodies being repatriated by air are required to be contained inside hermetically-sealed zinc-lined coffins and kept in the cargo hold for the duration of the journey. It is also necessary for the proper paperwork to be in place.

It is amazing the lengths these ladies went to to avoid abiding by the rules and regulations one has to adhere to before transporting human remains to a foreign country. Truly a bizarre tale!

Have a great weekend,

Natalia R. Angelini - Click here to learn more about Natalia Angelini.

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The Honourable Justice Brown has in recent months released several Endorsements that appear to be achieving the objective of assisting counsel and the Toronto Region Estates Office by clarifying and streamlining procedural requirements in certain estate matters.

One recent example of this arises out of the Armstrong decision, where after eight months of exchanges with the Toronto Region Estates Office, a non-resident applicant (residing in New Brunswick) had not been granted a Certificate of Appointment of Estate Trustee with a Will. The matter was then sent to a judge for consideration, thereby landing in the lap of Justice Brown. 

After consideration of the facts, including (a) the language of the applicable legislation; (b) that consent of the majority of the persons resident in Ontario had been obtained; and (c) that a bond had been posted in an amount equal to the full value of the estate; His Honour granted the request for a Certificate of Appointment.

While some could view this as a “better late than never” type of situation, as Justice Brown remarks, timely processing of such requests constitutes a critical service provided by the government to the public so they can deal with the assets of a loved one. The goal, therefore, is to achieve a turn-around time of no more than three or four weeks for the issuance of Certificates of Appointment.  

While admittedly this case was not the usual application thereby requiring judicial consideration, it seems we are on our way!

Have a good day,

Natalia Angelini - Click here to learn more about Natalia Angelini.

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Growing up, I used to watch Perry Mason television movies and dreamed of becoming a top litigator, regularly eliciting confessions from the ‘real criminal’ during courtroom trials full of intrigue and suspense.  As a law student and then practicing litigator, I quickly learned that there is a world of difference between trials and the legal system as depicted on (usually) American television, and the daily workings of the Canadian legal system. Sadly, I still cannot boast of any “You can’t handle the truth!” moments during my cross-examinations. 

A recent article in the National Post examined the influence of U.S. legal shows on Canadians, and noted that most Canadians do not understand the basics of our own legal system. In a recent high-profile Toronto murder case, a key witness’ testimony during the trial did not match what she had earlier told police. When asked if she understood what it meant to commit perjury, the witness indignantly answered that she knew what perjury was as she watched “Judge Judy” and “Judge Mathis”. As noted in the article, the “CSI effect” has led to an expectation among jurors that forensic evidence will solve a case. There may also be a “Law & Order syndrome” that leads to false impressions regarding courtroom procedure and legal concepts. For example, many Canadians may be shocked to learn that lawyers appearing in a Canadian court must usually wear gowns (but not wigs á la BBC legal dramas). 

The article notes that more legal education in our high schools may help counter the misleading influence of U.S. legal shows. Perhaps another Canadian legal drama like “Street Legal” could also help more Canadians learn about their own legal system.

Thanks for reading,

Bianca V. La Neve - Click here to learn more about Bianca La Neve.

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Listen to: Dinner with the Honorable Estates List Judges- Hull on Estates #205

This week on Hull on Estates Paul Trudelle and Natalia Angelini discuss their attendance at the Dinner with the Honorable Estates List Judges hosted by the OBA on Tuesday, April 27, 2010.
 

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

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

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

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In Re Estate of Michael O’Flynn, 2009 CanLII 57149 (ON S.C.), the Honourable Justice Brown encouraged the development of a culture of common sense in processing applications for certificates of appointment of estate trustee. This approach is further illustrated in the recent decision in Re Estate of Daniel O’Donnell, 2010.

In Re Estate of Daniel O’Donnell, the date of Mr. O’Donnell’s death was mistakenly listed as May 1, 2009 (not May 2) on the application for a certificate of appointment and resulting certificate. This mistake did not stop the administration of the estate. Mr. O’Donnell’s Will named Mr. Wilson as the sole estate trustee and sole beneficiary, and Mr. Wilson distributed virtually all of the estate assets to himself. He died a short time later, in July 2009. The administration of Mr. O’Donnell’s estate was yet to be completed, but the alternate estate trustee in Mr. O’Donnell’s Will had renounced her right to act. 

Accordingly, the named estate trustee for Mr. Wilson’s estate, Ms. Thomas, applied for a certificate of appointment as succeeding estate trustee with a will for Mr. O’Donnell’s estate. The application materials filed by Mr. Wilson’s estate trustee listed May 2, 2009 as Mr. O’Donnell’s date of death. The original error in the date of death went unnoticed for some time.

When the mistake in the date of Mr. O’Donnell’s death was finally identified, the Toronto Estates Office took the position that the applicant should bring an ex parte motion to correct the error made in the original certificate before the second certificate could be issued. Ms. Thomas argued, among other things, that she should not have to bear the cost of correcting a mistake she had not made and that the cost of preparing such a motion was out of proportion to what was at stake in the succeeding application (the succeeding application was only needed to complete tax filings and distribute the remaining assets valued at only $1,000.00.) 

Justice Brown’s solution was as follows. If the Estates Office identifies a discrepancy in the date of death between the original certificate and the application for a succeeding certificate, it should request an affidavit from the applicant that confirms that a mistake was made on the original certificate and attests to the correct date of death. Upon receiving such an affidavit, the Estates Registrar can then process the application for a succeeding certificate using the corrected date of death, and make any required changes to the original certificate and Ontario’s central registry which records information regarding estates. 

Thanks for reading,

Bianca V. La Neve - Click here to learn more about Bianca La Neve.

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In the course of reviewing medical records in advance of estate litigation, one will encounter a wide variety of cognitive screening tools used to identify cognitive impairment. A handful of these tools are described here:

• Confusion Assessment Method (CAM): an ICU assessment tool used to detect the presence or absence of delirium. A CAM assessment is usually carried out once every 8-12 hours (once per nursing shift). Results are presented as either ‘CAM-positive’, or ‘CAM-negative’, indicating the presence or absence of delirium, respectively.
• Mini-Mental Status Examination (MMSE): a quantitative measure of cognitive status in adults. Despite its well-documented limitations, the MMSE is the most widely used standardized cognitive screening test in both clinical practice and research. Scores (out of a maximum 30 points) are paired with an associated level of impairment, i.e. no impairment, mild impairment, moderate impairment or severe impairment.
• The Montreal Cognitive Assessment (MoCA): a rapid cognitive screening instrument used to detect mild cognitive impairment. This user-friendly tool assesses attention and concentration, executive functions (these are the high-level abilities that control more basic abilities and behaviours), memory, language, conceptual thinking, visuoconstructional skills, calculation and orientation. Studies have shown the MoCA to be far more sensitive than the Mini-Mental Status Examination (MMSE) in its ability to detect mild cognitive impairment.

There are dozens of other cognitive screens in use including the Mini-Cog, the Rowland Universal Dementia Assessment Scale (RUDAS), the Clinical Dementia Rating (CDR), the Memory Impairment Screen (MIS), and the recently published Self-Administered Gerocognitive Examination (SAGE). In the context of a dispute regarding testamentary capacity, cognitive screening results are valuable for the estate practitioner, in that they provide tangible, measurable, time-sensitive information regarding the testator's cognitive functioning, and serve as a tool for assessing the progression of the impairment.

Jennifer Hartman, guest blogger