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For those who take an interest in music or pop culture, it would have been difficult, if not impossible, not to be aware of Michael Jackson’s demise on June 25, 2009. 

At the time of his death, there were reports that his estate was indebted and/or had pending liabilities in the hundreds of millions of dollars. It is interesting to note that his “empire” is now said to have earned an amount approaching $1 billion since his date of death. Whether these reports are true will have I suppose to be seen. However, if they are true, these astronomical revenue figures would apparently elevate Michael Jackson’s estate to within the top five top earning dead celebrities. 

With such alleged earnings, it is not surprising that the dispute apparently continues regarding his estate and the appointment of the trustees to his estate (apparently litigation continues as between the family and those appointed as executors (administrators) of his estate). Other disputes regarding issues over copyright belonging to Michael Jackson and his estate and his assets and his death would seem not to have an end in the near future. What does appear not to be in dispute though is that his estate will continue to generate incredible revenues.

Thanks for reading,

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

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In yesterday’s blog, I mentioned that the election of the Ontario Bar Association (OBA), Trusts and Estates Section Executive for the year 2010-2011 was confirmed at the Section’s year end dinner on June 1, 2010. 

I am very pleased to be the incoming Chair of the Executive. The Vice-Chair will be Ed Esposto. The balance of the slate is as follows:

Past-Chair:                                          Suzana Popovic-Montag

Secretary:                                             Melanie Yach

Newletter Editors:                               Dina Stigas/John O’Sullivan

Continuing Legal Education

Liaison:                                                Joanna Ringrose/Eric Hoffstein

Regional Programming:                   Ed Upenieks/Mitchell Leitman

Members-at-Large:                           Ann Elise Alexander, Vincent De Angelis, Shael Eisen,                  Danielle Joel, Sean Lawler, Mitchell Leitman, Jane Martin, Deborah Petch, Wendela Roberts, Susannah Roth, Susan Stamm, Ameena Sultan, Sender Tator, Diane Vieira and Laura West.

I am looking forward to working with the Executive and having a very successful year.

Before turning the page on this past year, though, I would like to sincerely thank Suzana Popovic-Montag for all of her efforts, hard work and counsel as the Chair of the Executive.

Have a nice day.

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

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The Ontario Bar Association (OBA), Trusts and Estates Section, year end dinner was held on June 1, 2010 at Archeo (Distillery District) in Toronto. 

Suzana Popovic-Montag, the Chair of the Section for the past year, brought the past year to a close and the election of the OBA, Trusts and Estates Section Executive for the 2010/2011 year, was confirmed. 

The Section also paid 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. The criteria for the award is demonstrated leadership in the trusts and estates bar through knowledge, experience, skill, commitment, passion and strength of character, plus all or some of the following:

·         academic excellence through teaching at the Bar Admission Course, lecturing at a law school, participating in Continuing Legal Education and/or academic writing;

·         participation in the OBA Trusts and Estates Section Executive or the Law Society of Upper Canada on wills, trusts and estate matters; and

·         contribution to the development of wills, trusts and estate law.

In addition to the Award for Excellence, Lionel Smith was awarded with the Widdifield Award and Sender Tator was presented with the Hoffstein Book Prize.

Congrats to Hilary, Lionel and Sender.

In addition, there was a tribute to The Honourable Mr. Justice Maurice Cullity, who is retiring this year.

It was a wonderful change of venue for the dinner and a very enjoyable evening.

Thanks for reading.

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

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It's Friday, June 25, 2010 and as a result of the G20 summit, I am blogging remotely - from the comfort of my own home. As you know, the leaders from the G20 countries are meeting in Toronto this year to discuss key issues in the global economy.

The road leading to the summit has been a rocky one. I believe the words "fake lake" pretty much sums it up.

And you should be aware that there are traffic restrictions in effect today. For a list of the major highways with partial and full closures today through to Sunday, click here.

Even the judiciary has been impacted! If you are practicing in the area of estates, you are well aware that there were no judges sitting yesterday and there are none sitting today. My colleagues, Natalia Angelini and Paul Trudelle, noted that this was a topic of discussion at the recent Dinner with the Honourable Estates List Judges. 

Well, it's not just the courts that are closed today. In the Globe and Mail's 'local view' blog, which is dedicated to keeping us up to date on the "disruptions" and "drama" that Toronto has experienced in the lead up to the G20 summit, Siri Agrell informs us things have become personal. What could be so personal for Torontonians? Apparently the LCBO announced that it would close 7 of their stores.

If you’ve noticed that your local LCBO store is closed today and you need to stalk up for that party you're holding tomorrow evening (perhaps to celebrate recovery and new beginnings – this year’s G20 theme), click here.

Enjoy your weekend!

Kathryn Pilkington - Click here for more information on Kathryn Pilkington.

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This is the first time I have ever contributed to a blog, legal or otherwise, so you can imagine my delight when I noticed an article in the June 11, 2010 issue of Lawyers Weekly entitled "Legal blogs that work”.

The article, written by Geoff Kirbyson, discusses the benefits of legal blogging and includes helpful hints on running effective law-blogs.

Mr. Kirbyson points out that legal-blogging has become more common amongst law firms. This assertion comes as no surprise to me. My colleague, Sharon Davis, recently discussed the growing popularity of blogging amongst members of our profession. She noted that blogging is not an alien concept for lawyers as writing has always been a large part of our professional lives. You can find her blog here.

The increased attention given to on-line media makes sense when you consider the number of individuals who rely on social media for their information. A 2009 study by CNW Group and Ledger Marketing found that 50% of those surveyed accessed social media tools once per day.

So, what makes a legal blog effective? A managing partner of a Winnipeg-based firm opined that an effective blog showcases activity at a law firm, highlights developments in particular legal areas, demonstrates a firm’s knowledge and expertise, and enables a firm to engage in client service through social media. This is certainly true.

In my opinion, however, there is one more necessary component to effective legal blogging. In addition to being accurate, relevant, and current, a legal blog should be FUN.

Happy blogging everyone! I know that we’ll talk again soon.

Kathryn Pilkington - Click here for more information on Kathryn Pilkington.
 

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If you are working in Ontario by now you should be aware of Bill 168, the new workplace violence and harassment legislation, which came into force last week. 

An interesting article in the June 14, 2010 edition of the Law Times notes that Premier McGuinty’s government introduced the legislation in part in response to the murder of nurse Lori Dupont in 2005 in her workplace by her former boyfriend, an anesthesiologist at the hospital. The hospital had reportedly known of the doctor’s escalating harassment of Lori, but did not discipline him – they were supposed to work together the day he fatally stabbed her.

We should all be pleased with the introduction of the Bill, and I hope it has a positive impact on the health and safety in workplaces. Notably, breaches can attract fines of up to $500,000 for companies and up to $25,000 or 12 months imprisonment for individuals. Not something to take lightly.

Despite its importance, employers have apparently been having real difficulty complying with the new legislation by the June 15, 2010 deadline (just six months after the Bill received Royal assent). It seems many employers have not addressed their obligations in time, perhaps because they underestimated the amount of requirements they need to comply with, or possibly because they didn’t realize that a “wait and see” approach would not do as Bill 168 requires positive steps on the part of employers. Such requirements include:

-          conduct a risk assessment for violence and harassment in the workplace;

-          develop policies addressing the risks identified; and

-          complete staff training.

Are you ready?

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

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In our litigation practice, it is not uncommon to obtain orders permitting clients to register a Certificate of Pending Litigation (CPL) against title to property that is, for instance, an estate asset that one party is seeking to preserve until the litigation is concluded. 

If the litigation stagnates, which can happen from time to time, without reminders in place it is possible for the registered CPL to be left unaddressed. A recent decision in Novia v. Saccoia Estate (Trustee of) illustrates the impact of such a delay. 

The facts of the case are interesting and somewhat complicated, so I am drastically simplifying them here. In short, a dispute arose between a couple over the purchase of a property. A claim was commenced in 1988. A CPL was obtained in 1989. The plaintiff took no further steps in the litigation. The CPL remained on title for a while….oh lets say, until 2010! In 2006 the defendant passed away. In 2010 the estate trustee of the defendant’s estate brought a motion seeking to dismiss the action for delay (how the litigation had not previously been dismissed for delay by the Registrar is a surprise to me). 

The Court reviewed the applicable case law and, based on the evidence before the Court, it found that the delay was inordinate, contumelious and intentional. It also found that the prejudice caused was presumed and actual, as the defendant was no longer able to testify. Accordingly, the action was dismissed and the CPL discharged.

While the facts of this case are uniquely interesting, in my view this case generally serves as a good reminder to all of us to keep an eye on any CPL obtained and properly address its treatment over the life of the litigation.

Have a good day,

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

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I could not help but do a double-take when I came across an article with the above-captioned title in the Law Times (June 7, 2010 issue).

It was reported that in 2004, a Toronto lawyer was charged by the Law Society of Upper Canada (LSUC) with professional misconduct for conflict of interest while acting as an estate trustee and solicitor without adequate disclosure to the beneficiaries. It was also alleged that he breached his fiduciary duty as trustee by making several imprudent unsecured loans from the estate. It seems that the line between acting as estate trustee versus acting as lawyer for the estate may have been blurred in this case.

In 2008, the lawyer was found guilty, and he received a two-month suspension and a lifetime prohibition from acting for both borrowers and lenders in private mortgage transactions. The lawyer appealed the decision.

The appeal panel, with Larry Banack writing for the majority, granted the appeal. It found that the original proceeding had “compromised the appearance of fairness” and created a “reasonable apprehension of bias”.  This conclusion appears to have been based on the determination that interventions by the original panel during the lawyer’s oral testimony gave the appearance of “descending into the arena and assuming the role of the prosecution”. This is a departure from the proper role of neutral fact-finder.

This seems to be one of the first times, if not the very first time, that the LSUC appeal panel has made a finding of reasonable apprehension of bias. This decision is also noteworthy given that it involves benchers on the appeal panel being called upon to find against fellow benchers comprising the original panel. As noted in this article, this demonstrates that the LSUC can be very fair in its self-regulating function.

Have a good day,

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

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There has been so much that has been recently written about the release of the iPad and more recently, the new iPhone 4G. Some may remember that an Apple Software Engineer who was working on the iPhone 4G accidentally forgot the Smartphone at a local bar, prior to its release date. Gizmodo, known as a leading technology weblog about consumer electronics, purchased the Smartphone from the finder and published exhaustive details about many of its new features, thereby stealing some of the thunder from the creators of the iPhone.

Smartphones are certainly the hottest thing going forward in social, business and technological circles, and its time for us to start thinking about the revolution it has had on our lives. 

Thanks to Smartphones, most lawyers are now mobile. I read an article in the most recent LawPRO magazine named “Essential Smartphone apps for Lawyers”. For those of us who are not familiar with technological jargon, an app is short for “application software”, which is downloaded to a Smartphone. Some essential apps described in this article were: “Documents To Go”, which, among other things, allows lawyers to view and edit Microsoft Word, Excel and PowerPoint files, and “Timr”, another app referred to in this article, allows a lawyer to track their time and mileage. 

Smartphones have certainly made life convenient, but as lawyers it is scary to think about the privacy issues associated with all of the personal and client data that we store on them. With just a push of a button or a poke at the touchscreen, pretty much anyone who got hold of your phone could read your email, see pictures of you, your family etc. Smartphone’s contain far more personal data than would ever have been accessible on older mobile phones, now coined as the “dumbphones”.

Most of our privacy concerns can be remedied, which is as simple as enabling your security passcode, thereby locking your phone so that anyone who steals it or finds it if you have misplaced it cannot gain access.
 

Thank you for reading and have GREAT weekend,
 

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

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I recently read an article named “The Lessons of Famously Bad Estate Planning”, authored by Steven Morelli. This article looks at disasters that have followed celebrities because of the absence of a properly planned Will.

Jimi Hendrix died without a Will which started a family war that would end up in court for more than 30 years.

Sonny Bono, an American record producer, singer, actor, and politician, died without a Will. It is mind blowing that someone so successful would not have a carefully planned Will. Of course, numerous people lined up to advance claims against his estate, which included Cher, and the inevitable love child. Sonny could have saved his widow and everyone else involved a lot of grief and aggravation if he had taken the time to do some simple estate planning.

For those of us who have taken the time to prepare our Wills, Mr. Morelli reminds us of the importance of updating our Will. For instance, Anna Nicole Smith died with a Will; however, her Will contained a provision which specifically excluded “future children” from benefiting from her estate. This clause had the effect of leaving her entire estate to her now deceased son, and disinheriting her five month old daughter. A judge eventually fixed this estate mess, but it came at an unnecessary expense.

Mr. Morelli puts it perfectly: “The essence of estate planning: control. Whether it involves celebrities maintaining their image for all posterity, or wealthy land-owners keeping their families’ holdings intact, estate planning protects clients’ control. Quite often people don’t want to discuss estate planning because it involves their death. But clients should understand that it is essential to maintaining their family’s stability and dignity.”

Thank you for reading,

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

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Listen to:Settlement and the ADR Process-Part 2

This week on Hull on Estate and Succession Planning, Ian and Suzana continue the discussion on mediation, settlement and the ADR process. Topics discussed include: what is crucial to a case, good preparation, and the purpose of an open session.

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

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

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

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Listen to: Recap: OBA Trust and Estates Section - Hull on Estates #211

This week on Hull on Estates Craig Vander Zee and Chris Graham change the pace by recapping the OBA Trust and Estates Section, year end dinner that on June 1, 2010. Held in the distillery district, the evening was a tribute to those who had won awards and an opportunity to pay tribute to the Honourable Justice Cullity.

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

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

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

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Recently, I was looking over some of the leading cases in life estates. One of the questions that stood out in my mind was whether or not a life estate has a quantifiable value.

Aho v. Kelly, was heard in British Columbia in 1998, but remains a leading Canadian case that is often referred to when the valuation of life estates are being considered.

In Aho v. Kelly the wife and two children of the deceased were each left a 1/3 interest in the matrimonial home of the deceased. The court confirmed that the wife of the Deceased also held a life interest in the same matrimonial home, as per the jurisprudence in British Columbia. The wife commenced an application seeking a court order that the property be sold and the proceeds be unequally divided amongst the three owners of the property.

The wife argued that the proceeds should be unequally divided because she was entitled to further compensation as she had to be paid out for her life interest.

The Court held that a life estate is a property interest that has “some value”. The Honourable Justice Bauman stated that at common law a life estate is alienable, and that upon its transfer to another party it becomes an “estate pur autre vie” (that other life being the original life tenant). The Court concluded that the life interest has a value capable of capitalization, and that this value should be paid out of the proceeds from the sale of the house.

Aho v. Kelly is not binding in Ontario, however it goes a very far way in establishing the framework by which the value of the life interest can be calculated.

Thank you for reading and have a great day,

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

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With dementia on the rise and as our society continues to age, many pharmaceutical companies are taking aim at inventing a drug that will reduce if not cure dementia all together.

One such company, Novartis Pharmaceuticals Canada Inc., sold the Exelon patch, which essentially is a transdermal patch which is used to treat mild to moderate symptoms of dementia.

The popularity of the drug has been on the increase recently with nearly 18,500 prescriptions for the patch being dispensed in Canada in 2008 and in 2009 that number increased to nearly 65,000. What I found particularly interesting about this drug was the side effects associated with it. Novartis Pharmaceuticals has reported on its website that possible side effects of the patch could include nausea, vomiting, hallucinations and problems with heart rhythm. 

The Exelon patch was reported as a drug that would reduce the effects of Alzheimer’s. However, recently Health Canada has issued a warning about Exelon as there have been reported misuses of the patch in Canada. The misuses of the patch could pose a risk of overdose, leading to nausea, hypertension, slowed heart rate or death. 

Those of us with loved ones who suffer from dementia and Alzheimer’s can only look on with hope that there will one day be a cure.

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

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Former child actor Gary Coleman died after being hospitalized earlier this week with a head injury. He was 42.

Coleman is best remembered from the sitcom Different Strokes, where he played the comical kid actor, which led him to his fame.

Unfortunately, in what appears to be a trend among popular child actors, Coleman's career all but ended with the onset of adulthood, but that did not remove Coleman from the public eye. During his adult years, Coleman was plagued with legal troubles. In 1990, Coleman sued his parents and an ex-manager for allegedly extorting him of the fortune he had earned while on Different Strokes. He was subsequently awarded $1.3 million dollars. In 2007, Coleman married his girlfriend of five months, Shannon Price. The marriage was reported as a volatile one. Both were arrested, Price in 2009, and Coleman this past January, on domestic violence charges. They even aired their grievances on Divorce Court in 2008.

Gary Coleman’s alleged Last Will and Testament, dated April 5, 1999, recently surfaced. Under his Will, Gary appoints his former manager Dion Mial as his executor of his estate. What I found interesting, was under paragraph two of his Will, which states: “I direct my personal representative to cause my personal remains to be cremated and to plan a wake for me conducted by those who have had no financial ties to me and can look each other in the eyes and say they really cared personally for Gary Coleman.”

In Ontario, as I recently indicated in a prior blog, any instructions left by the deceased respecting remains, whether in a Will or otherwise, are precatory and are not binding on the estate trustee.

Thank you for reading and have a great day.

Rick Bickhram

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Listen to: Settlement and the ADR Process

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss settlement and the ADR process. This topic was spurred after the ILCO Conference in Quebec City that Ian and Suzana co-presented at.
 

Also, Suzana announced that a “Best Of” CD is available. This CD is a compilation of all the “best” podcasts over the past year. To get a copy of the CD email Suzana with your contact information at: spopovic@hullandhull.com.
 

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 to learn more about Ian Hull.

Suzana Popovic-Montag - Click here to learn more about Suzana Popovic-Montag.

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In a recently reported decision by the Superior Court of Justice, the Honourable Justice Newbould considered the issue of whether a solicitor who drafts a Power of Attorney owes a duty of care to the Grantee of the Power of Attorney.

In Barbulov v. Huston, the defendant was the solicitor for the plaintiff’s father. 

The father attended at the defendant solicitor’s office to execute a Power of Attorney for personal care and for property. The plaintiff was present with his father at this meeting. Some thirteen years after the father’s Power of Attorney for personal care was signed, the father suffered from brain damage, which impaired his ability to communicate or interact with others.

The plaintiff reviewed the Power of Attorney, but then realized that it did not reflect his father’s wishes and was concerned that the Power of Attorney would be used to terminate his father’s life support.  At the Consent and Capacity Board hearing, the attending physician for the father proposed a revised plan of treatment with reduced medical intervention in accordance with the Power of Attorney. The plaintiff appealed this decision and spent $30,000.00 on the appeal. The plaintiff sued the defendant solicitor alleging that he was negligent in drafting the power of attorney as it did not properly reflect the intentions of his father. The plaintiff sought damages for the legal expenses incurred by him in unsuccessfully appealing the decision of the Consent and Capacity Board.

Justice Newbould held that the defendant solicitor did not owe a duty of care to the plaintiff son. In his decision, Justice Newbould justified his decision by stating that the defendant solicitor “did not undertake to look after the plaintiff’s interests. He was concerned solely with the interests of the plaintiff’s father. The plaintiff was acting in the meetings with the defendant as a translator or messenger on behalf of his father. He was not there in any personal capacity with a separate interest that needed protection. There would not have been any expectation that the defendant was looking out for the plaintiff’s interest, and there was no representation that he was.”

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Certainly a firm's wills bank has traditionally been seen as a capital asset that generates work in the manner of files being opened both as estate solicitor and, oftentimes, executor. A recent e-bulletin released by Title Research elaborates on this basic premise to provide some interesting thoughts on the untapped marketing potential of an existing estates and trust practice.  

The author, Alistair Moyes (a consultant with U.K.-based Marketlaw), notes that "the value of the potential clients generated by a probate matter is increasing as the competition in the legal services market accelerates.... The question is how to retain them as clients and gain their next matter."  Because "people tend to go back to the last lawyers they used or had contact with" and because "probate (& wills) is third behind residential conveyancing and divorce (& family) it should be seen as a valuable access point to the profession and one that needs to be carefully managed to retain and gain clients within a firm." 

Essentially, an estates and trusts practice should look to its existing clients as being the source of future work after the Will or Power of Attorney has been drawn.  The key, therefore is to enhance the loyalty of the client to the lawyer.  The starting point is to "maintain a current, regularly maintained database of past clients that can be used to send them information about the benefits of your services."  Thereafter, regular (even as little as every 3 or 5 years) communication with these clients to remind them to update their will if required is a simple way to remain top of mind and show an interest in maintaining an ongoing relationship.

In addition, Moyes notes that any new legal developments can provide an opportunity to remind clients of the benefits of your services. "Writing to executors with brief details of their responsibilities can identify potential new clients." And suggesting your firm as an executor, when explained carefully to the client, similarly provides the potential for new work.

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

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Listen to: Solicitors Duty of Care

This week on Hull on Estates Paul Trudelle and Nadia Harasymowycz discuss a recent decision out of the Ontario Superior Court of Justice and the Honourable Justice Newbould. This decision deals with the issues of powers of attorney and the role of a solicitor in drafting the power of attorney and the obligations and duties that the solicitor may have due to others.
 

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

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

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

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This morning's blog asked:  How many grooves are there on one side of a 45 rpm record?

Answer: There is one continuous groove on each side of a 45 rpm record.

One song, one groove. 

Don't you just loathe trick questions?

Jennifer Hartman, guest blogger

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On May 31st, 2010, Chris Haney, one of the co-creators of Trivial Pursuit, died in Toronto at the age of 59.

While working as photo editor at the Montreal Gazette in the mid-70s, Haney met fellow journalist Scott Abbott. In December 1979, Haney and Abbott sat down at the kitchen table for a friendly game of Scrabble. Haney noticed that several tiles were missing from the game and after returning from the store with replacement tiles, he remarked to Abbott that 'the Scrabble guys must be making a fortune’. That started the wheels turning, and according to Abbott: “We sat down – then and there – and started doodling a game board. The whole thing was done in 45 minutes.” 

Bridging the gap from concept to market, however, was not without its challenges:

• Such an elaborate folding game board had never been seen before.
• Haney and Abbott reportedly spent $75 per game to produce the first 1,100 copies of TP. Essentially, the pair lost their shirts bringing the game to fruition.
• Trivial Pursuit finally debuted at the Canadian Toy Show in Toronto in 1981, followed by the Toy Fair in New York in 1982. Donkey Kong had just been released and Pac Man had been hungrily eating pac-dots (and coins) for a couple of years; fierce competition, to say the least.
• Each game contained a deck of 1,000 trivia cards. By the end of 1984, 20 million games of TP had been sold in the United States. That’s 20 billion cards, which accounted for 20% of mill production at Federal Paper, which was producing cigarette cartons for every single tobacco manufacturer in the U.S. at that time.

Haney, Abbott and their investors (a small group of co-workers, friends and family who chipped in about $1,000 each) persisted, and nearly 100 million copies of Trivial Pursuit have now been sold.  In 2008, the game was sold to Hasbro (makers of Play-Doh, Nerf, Tonka and Potato Head) for a reported $80 million (U.S.).

OK, trivia buffs, time to put your game faces on:

Q. How many grooves are on one side of a 45 rpm record? [Answer to be posted here this afternoon, and sent by rss feed to subscribers].

Jennifer Hartman, guest blogger
 

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In a recently reported decision, the Nova Scotia Supreme Court tackled issues of will interpretation and whether a gift in a Will is void for offending public policy as enshrined by provincial Human Rights legislation.

In Re Peach Estate, the testator purported to leave his residence to "an Anglican of Presbyterian..." 

The first issue was whether the word "of" was properly to be read as "or".  The Court, applying the doctrine falsa demonstratio noted that if surplus or inessential parts of a description in a Will are inaccurate, they may be rejected "if the remaining description is sufficiently certain to give the bequests a definite meaning.   If a will describes a certain person or thing with sufficient certainty to enable a court to recognize the person or thing intended by the testator, then the court will overlook any inaccuracy in the rest of the description."  Moreover, "in endeavoring to give effect to the testator's true intention the court may be able to utilize the doctrine by simply ignoring a mistake in the description of a person or property."

The court therefore concluded that "there is no evidence of an "Anglican of Presbyterian", and therefore the use of the conjunctive "of" was in error...the provision should read "Anglican or Presbyterian".

However, the correction was moot.  The restriction of prospective purchasers to only those of certain Christian denominations was found to offend the provisions of the Nova Scotia Human Rights Act.

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

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It is a simple fact that the vast majority of litigation settles before trial.  Yet as litigation practitioners, we learn early on (notwithstanding these statistics) to approach each new case as though it is likely to go to trial.  We therefore build a case always mindful that the threat of a successful result at trial may be what is required to procure the most advantageous settlement for the client.

But some cases are simply destined to go to trial.  And when they do, the right mindset is required to win.  I once received the following advice: "You will perform best if you do two things. First, do not ever entertain the possibility that you will lose. This does not mean that you adopt an irrational approach or ignore the way things are unfolding.  Rather, when you are an Olympian going for Gold, you must never allow your mind to entertain or dwell on the possibility of earning anything less. That’s not the way it's done. Secondly, do not worry now about the aftermath of a loss should it occur. If you do you will be paying interest on a debt before it is due."

Many books have been written on what can generally be called "the power of positive thinking."  While such an approach alone will not win a difficult case, better to have given it your best shot then to have focused on the risk of losing.

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

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A friend recently gave me a wonderful gift – “The Book of Awesome”. Upon first glance, with its colourful cover and unusual font, I wasn’t sure what to expect. After only several short “Awesomes” I realised that this book is a gift that I will never forget. 

In litigation, we are constantly engaged in combat, fighting on behalf of our clients. In estate litigation, we often deal with sad stories, unfortunate events and emotionally charged situations. In these circumstances it is easy to slip into a routine where the negative is the focus of the day; the pressing deadlines, the argumentative nature of our work, and the constant roller coaster of emotions. 

“The Book of Awesome” serves as a reminder that if we shift our focus to view small events, we may be surprised by how positive life can be.    Awesomes can be anything from getting a ‘pull-through parking spot’ to ‘drinking those little ice crystals floating in your freezing cold glass of coke’. I’ve been sharing the Awesomeness with friends for the last few weeks, and the response has been a true Awesome.   I’ve been receiving emails letting me know about an Awesome that happened that day or about the favourite Awesome from the book. I even have a friend, a teacher, who has asked her grade 8 students to each come up with their favourite Awesome and plans to decorate the classroom with the results. The students have shown great enthusiasm and apparently are having trouble narrowing their homework down to only one Awesome! 

If you haven’t jumped on the Awesome band-wagon, give it a shot. I hope that you are able to find an Awesome today, but if not, check out 1000awesomethings.com where the awesomeness started and search for a favourite.   With so many Awesomes to choose from, it will be harder than you think!

Have a awesome weekend,

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

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Whether you’re a fan or not, it’s hard to not have heard that LOST, the acclaimed television show about survivors of a plane crash, has recently celebrated its final episode.   In the last few weeks, it seems like every channel was telling me about this event. I haven’t been a devoted viewer of LOST for the last several seasons, but the commercials advertising the series finale left me thinking about the show from another angle. If I put aside the fact that it’s a fictional television show, the question arises – in real life, what would have happened to the survivors of flight 815. 

The story of LOST was centered around the people who were on the plane. However, if LOST was reality, the story of the other survivors, the family of the survivors, worried about their loved ones, would demand more focus. The family left behind struggles with the loss, and is often left with an ‘estate’ which they cannot deal with. In such a situation, without contact for years, there is a recourse which families may utilize in order to deal with the life their loved one has left behind. 

The Declaration of Death Act, 2002 provides for the very circumstance described above. It allows for a declaration that a missing person is deemed legally dead, and thus, the assets, and life left behind can begin to move on.    Generally this requires a 7 year absence, but disappearance in circumstances of peril may shorten that time frame.    It may not be the solution for every family, but with the option available, it may be worth consideration. 

Until tomorrow,

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

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Listen to: Assisted Suicide – Hull on Estates #209

This week on Hull on Estates, Natalia Angelini and Kathryn Pilkington discuss the fairly controversial subject of assisted suicide and how it affects us from an estate standpoint.

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

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

Kathryn Pilkington – Click here for more information on Kathryn Pilkington.

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Imagine for a moment that you go back to read your diary entries from your “Are you there God? Its me, Margaret” days.   You think to yourself, ‘these are pretty good, maybe I should put them together and write my life story’. So you sit down, get to editing and write your autobiography. For most people, a venture through their personal history leads to some reminiscing with friends or a good laugh, but not much more; For Mark Twain, it has led to a century old legacy.  

I don’t think my life story would be widely read, and thus have no current plans to write it. What’s more, even if I did write it, I don’t think I would instruct my executors to leave it unpublished for 100 years - but that is exactly what Mark Twain did. The most amazing part is that not only were those his instructions, but that his story is still relevant today, and is about to be published.

The author who changed the face of American literature with novels like ‘Tom Sawyer’ and ‘The Adventures of Huckleberry Finn’, passed away in 1910, and since 1962, The University of California at Berkeley has held Twain’s autobiography, beginning a count down to 2010. Although parts of his autobiographical work have been published in other biographies, the anniversary of Twain’s death will be celebrated, beginning on November of this year, with the publication of the first of three installments of his autobiography. 

As part of his autobiography, Twain apparently was critical of Christian missionaries in Africa; but he didn’t limit his critique to the foreign, he also allegedly wrote negatively about Theodore Roosevelt and many others.   If nothing else, the autobiography promises to be interesting with hopefully a touch of the humour that made Twain’s fiction famous in the first place. I can only dream that 100 years from now someone will be reading this blog and saying the same thing.

Until tomorrow,

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

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Moving towards being more technologically inclined appears to be a theme that isn’t only of interest to me. I can’t imagine a world where a computer wasn’t available to make last minute changes to a factum or where everay letter I sent required several days of ‘snail mail’ to arrive. That said, the touch screens of the Starship Enterprise were science fiction only several decades ago, and now the IPhone has made such technology common. The world is changing rapidly at a pace almost impossible to keep up with, and any advice to stay up to date, and which benefits my practice, is appreciated.

I was recently flipping through both “Briefly Speaking” and the “National” and each featured a different article on how to advance your practice with the use of gadgets.   The National had recently discussed the use of Smartphones, but took the opportunity this month to deal with Blackberries and the new applications available help make your legal practice run smoothly. Blacktrack was the app that I found most useful, as it aims to help you docket the time spent on client emails by recording the amount of time, and the name of the recipients and subject line in a handy chart format which can be easily used to docket time spent while on the go. Although I can best see the usefulness of this application, all 10 for legal practitioners certainly have their niche uses.

Briefly Speaking took a slightly more broad approach to the use of technology in legal practice and discussed the TECHSHOW hosted by the American Bar Association every year in Chicago.   The show hosted many visitors from all areas of the legal profession with a focus this year on social network marketing and smart phones. The show hosts sessions where the presenters are not vendors, but legal professionals who are particularly interested in technological solutions for everyday practice, which makes the information accessible and surely not too biased. April 2011 celebrates the 25^th consecutive ABA TECHSHOW and although only a year away, I’m sure there will be many new and useful technological advancements to hear about. 

Until Tomorrow,

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