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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The Smithsonian in Washington DC is the largest museum in the world and houses the legacy of an entire country.  A little known fact is that this American national treasure is owed to a legacy of a different kind, a single charitable bequest by a man who had never even visited the United States.
 
British Scientist James Lewis Smithson, in a Will drawn three years before his death in Genoa Italy in 1829, bequeathed a life interest in his estate to his only living heir, his nephew Henry James Hungerford and thereafter to Hungerford's heirs.  In a charitable giftover, if Hungerford died without heirs, the estate was to go to the United States of America.  When Hungerford died unmarried and without children just 6 years later, Richard Rush as agent for President Andrew Jackson claimed the money, which was awarded to the United States by the English Court of Chancery.  The estate was worth half a million dollars in English Gold Sovereigns at the time, about $8M today.  
 
It remains a mystery to this day, why Smithson left his fortune to a country with which he had no social or political  ties.  If you would like to read more about Smithson click here.  If you would like to hear more about Smithson, click here.
 
The Will stated that the estate was to go to the "United States of America, to found at Washington, under the name of the Smithsonian Institution, an establishment for the increase & diffusion of knowledge among men."  And the rest, as they say, is history - literally and figuratively!  
 

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

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Who says estates law isn’t glamorous?   A French judge in Nanterre, on the outskirts of Paris, has recently rejected the second attempt by Francoise Bettencourt-Meyers to obtain guardianship over her mother, Liliane Bettencourt.  87-year-old Bettencourt is the sole heir of L'Oreal, the world's largest cosmetics and beauty company that her father founded in 1909. She is the richest woman in the world, with her current fortune estimated at 17 billion euros.

Bettencourt-Meyers failed to produce a medical certificate and “in the absence of this document, nothing more can be done”, the Paris official said.  

According to Aol News, Bettencourt-Meyers wishes to protect her mother from a celebrity photographer who befriended Bettencourt and to whom the heiress has given gifts totaling a billion dollars.  France24 reports that Bettencourt accuses her daughter of "vile doggedness" and impatience to get her hands on her fortune.      

Whether a guardianship application is motivated by the desire for power and money or genuine love and concern, a court will not interfere with an individual’s autonomy lightly. For information on when a court will order a capacity assessment, see my previous blog on this topic here.

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

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Listen to: Examining Litigation in Ontario – Part 2

This week on Hull on Estates and Succession Planning, Ian and Suzana focus on Will challenges. More specifically, what a lawsuit or litigation would be like if those involved resided outside of Ontario. Issues examined include when more than one Will is left such as a primary and secondary Wills, what happens when someone gets married, summary judgments and costs.

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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While some may find the contents of certain Wills frightening, there is one type of clause that has the name to go with the concept: the in terrorem clause.

In terrorem is Latin for in terror, fright, threat or warning.  An in terrorem clause is drafted to discourage frivolous Will challenge litigation by beneficiaries. The clause provides that if the validity of the Will is challenged by a beneficiary who receives gifts, that beneficiary’s entitlement to the gift is forfeited.

A condition of this nature imposed on a gift can be effective in avoiding litigation in situations where the testator wishes to leave unequal gifts among beneficiaries (his or her children, for example), which is likely to be perceived as unfair.

If a gift to a disappointed beneficiary is substantial, that beneficiary should be seriously dissuaded from a frivolous or spiteful challenge to the validity of a Will containing an in terrorem clause.

Such a clause should be limited to challenges to the validity of the Will and not to proceedings relating to interpretation or related matters over which the court has exclusive jurisdiction, otherwise the clause may be ineffective.

For some helpful discussion of the in terrorem doctrine see Bellinger v. Fayers 2003 BCSC 563 (CanLII). 
 

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

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Listen to: Orders Giving Directions in the Context of a Will Challenge

This week on Hull on Estates, Craig Vander Zee and Nadia Harasymowycz discuss orders giving directions in the context of a will challenge. A will challenge offers an opportunity at the beginning of a case to assemble the evidence and consider how it will be dealt with going forward. Things to consider include:
 

• Is mediation required?
• What evidence is known?
• What evidence needs to be obtained?
• How is that all going to happen?
 

There are also factors to be considered at the beginning such as projected costs and the value of the estate either known to be or thought to be.
 

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

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

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

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When working with your legal colleagues, it is worth keeping in mind that we all have traits and characteristics that are a function of how and when we were socialized into the profession.

In "The Multigenerational Workforce, Managing and Motivating Multiple Generations in the Legal Workplace", Sally Kane posits the following about the various generations:

1. Baby Boomers (aged 46-64) hold positions of power and authority and comprise the majority of law firm partners and senior level executives. They are loyal and work-centric. High levels of responsibility, perks, praise and challenge motivate this generation.

2. Generation X’ers (aged 32-45) hold junior partner and senior associate positions in law firms and middle-management positions in corporate legal departments. They are ambitious and hardworking but value work/life balance. Diversity, challenge, responsibility and creative input motivate this generation.

3. Generation Y’ers (aged 21-31) hold entry level associate positions in law firms and corporate legal departments. They are creative, optimistic, achievement-oriented and tech-savvy multi-taskers who seek challenge and personal growth. Immediate feedback, praise and frequent communication motivate this generation.

According to an article by Robert Half Legal, the biggest benefits to a multi-generational workplace are that it:

• Brings together people of varying experience levels;
• Allows for greater diversity of project teams; and
• Allows for mentoring opportunities.

The biggest challenges are that the different generations have:

• Different work ethics and approaches to work life balance;
• Conflicting communication styles; and
• Different points of view, which make it harder to reach consensus.

Keeping these generational differences in mind could help you to understand and to work more effectively with a colleague or even a client.   

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

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In the hallowed halls of law school, contrary to what some “lay” people might expect, students are not taught “what” to think but rather “how” to think.  The law is a living thing and so for lawyers to truly add value they must be able to find and apply the law to their client’s particular circumstances and legal problem.

While being a specialist greatly assists the ability to know answers to the questions that pop up regularly in one’s area of expertise, we frequently find that there is a slight wrinkle in the facts that requires some research. 

The commercial services (LexisNexis and West) and the free CanLII are well used for case law, but there is no better place to start research than with secondary resources such as textbooks and journal articles.  Here are some online sources that that you might find useful:

• Irwin Law –  an online dictionary of terms from Irwin Law’s “Essentials Series” of textbooks; and 
• HeinOnline – an extensive digital collection of Canadian, US and International law journals as well as English Law Reports.  Free to members of the Law Society of Upper Canada.

For online guides to legal research in general, see:

• Catherine Best’s “Best Guide to Canadian Legal Research”, which provides effective strategies and techniques for finding and using secondary sources, case law, statutes and regulations, and legal research in other countries. You can also find tips on legal writing, comparisons of online case law services and suggestions for effective electronic searching; and
• Ted Tjaden's Legal Research and Writing, which is a companion site to the third edition of his book of the same name.  

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

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Business self-help books are legion.  And books chronicling the characteristics of the very wealthy (and how to be like them) comprise a good chunk of this category in your local bookstore. While our society's obsession with fame and perhaps just simple curiosity accounts for much of these sales, such publications contain useful advice which can inform anyone in business.

According to Joan Kane, a Manhattan psychologist, (as quoted in this article from forbes.com found on ctv.ca) "people who are very successful have an incredible sense of optimism.  They don't have the sense of limitations that most people have. There's no limit to their capacity to achieve and keep going. Age and family commitments don't deter them."

Billionaires "have a confidence bordering on arrogance that checks their fear and doubt--even as the bets grow larger and more complicated. Put another way, they have an uncanny ability to shrug off failure."

Suggested prerequisites for becoming a billionaire include the ability to answer "yes" to the following questions (inspired by Kane and executive psychologist Debra Condren and detailed in the above noted link):

• Can You Tolerate and Manage Ambiguity?
• Are You Willing To Make Tough Decisions For The Growth Of The Company?
• Do You Like Speaking In Public?
• Are You A Consensus Builder?
• Can You Delegate?
• Can You Deal with Isolation?

Have a great weekend!

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

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The Courts in England and Wales are gradually adapting to relatively new substitute decisions legislation (somewhat analogous to, but in many ways different from Ontario's Substitute Decisions Act).

In particular, the concept of "statutory wills" provides for a mechanism (in certain circumstances) where testamentary dispositions may be directed by a special court for incapable persons. Under the Mental Capacity Act 2005, which came into force in England and Wales in 2007, the Court of Protection must decide what would be in the person’s “best interests”. And some judges have decided that this includes how they would want to be remembered by their family:  “For many people it is in their best interests that they be remembered with affection by their family and as having done ‘the right thing’ by their will.”

As recently reported on-line in the Telegraph, this somewhat controversial application of the concept of "best interests" may inadvertently give rise to opportunistic relatives benefiting from an estate in which the now incapable testator would never have wanted such person to share.

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

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Alleging a forgery is one thing.  Proving it is another.  But it may be the surrounding circumstances, rather than handwriting analysis, that ultimately satisfy the trier of fact that a fraud was committed.

Consider a recent case reported in the British media.  A widow with a daughter and son left a Will and two Codicils.  Her spinster daughter, who had moved into her mother's residence in the years before her death, was found to have forged the Codicils.  Evidence led at trial suggested that the mother was suffering from Alzheimer's disease, and was confrontational with and suspicious of her daughter.

The deceased's original will divided her home and the rest of her estate equally between her daughter and her son.  But in a Codicil, she apparently wrote: “I wish my daughter to keep the house and everything in the house, and any remaining savings to be divided between my daughter and son... I am worried for my daughter’s future as she is unmarried and growing older and I wish her to feel safe here.” [emphasis added]. The second Codicil substantially echoed the first.

The trial judge concluded that the Codicils were forged and, even if not forged, were not made at a time when the deceased had the requisite testamentary capacity.

It may not have helped that the son of the deceased was a "spacecraft propulsion engineer" described by the trial judge as "practical and businesslike", while the daughter, representing herself, "struggled financially."

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

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Listen to: Examining Legislation in Ontario

This week on Hull on Estates and Succession Planning, Ian and Suzana talk about what a lawsuit or litigation would be like if those involved resided outside of Ontario. Issues discussed include knowing what to expect, what the system is about and how it works.
 

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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In blogs published on our site in March 2008 and January 2010, the fascinating story of the estate of Franz Kafka was considered.  As we have discussed in other blogs (see this blog on Nabakov), an executor of the estate of a literary giant may face temptation to publish unfinished works even in the face of an expressed intention of the testator to the contrary.  Such was the case with Kafka: his named executor and trusted friend chose to edit and posthumously publish certain works (to great acclaim it may be added).

In the second blog, Nadia Harasymowycz noted that certain letters and drawings gifted by Kafka to his mother and sisters prior to his death remained in a safety deposit box.  As reported yesterday online by the National Post, a bank in Zurich "opened up four safety deposit boxes containing some of the unpublished work, and will allow Kafka scholars to look at the work."  This decision follows on the heels of a ruling by the Israeli courts last week, wherein Tel Aviv banks were ordered to produce other similar documents.

Once the process of documentation is complete at the three banks, a judge will rule about the future of the papers: “whether they are the private property of the Hoffe sisters, who can then do with them whatever they want, or whether they constitute a literary treasure that must be transferred to a public archive.”

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

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My daughter turned 6 years old on Thursday, and on Friday, a pediatric ophthalmologist informed us that she is legally blind in one eye, and likely has been since birth. She can see light and motion with that eye, but little else. Parental shock would be an understatement. I am sharing our story so that others don’t fall through the cracks like we did.

With a background in health care, I made two assumptions, in error, along the way:
i. Surely I would be savvy enough to recognize signs of vision impairment in my daughter; and
ii. The sight screening performed at our GP’s office would act as an early warning system for any problems with her eyesight.

I was wrong on both counts. 

At no time was there any indication that my daughter was having difficulty seeing.  In fact, she excelled at school, both in terms of her reading and her writing.  Further, as recently as a few weeks ago, she passed her sight screenings (with flying colours, no less), because she was asked to cover her own eye, and obviously cheated by peeking through the tiny gaps at the base of the fingers where they meet the palm.  Sneaky little so-and-so.

A ‘sight test at a fixed distance’ comprised of covering one eye at a time and identifying letters/shapes on an eye chart is important, but it is not a substitute for a formal, comprehensive vision examination by an eyecare professional.  Formal eye exams, once every 12 months, are not only recommended for school-aged children, but contrary to popular belief, they are covered by O.H.I.P.  The Ontario Association of Optometrists is rolling out the Eye See…Eye Learn program in Halton, Hamilton-Wentworth, Windsor-Essex, Thunder Bay and Dufferin-Peel in September 2010.  This program will educate parents of children entering JK about the importance of eye health, encourage them to take their children for comprehensive eye exams, and will even provide free eyeglasses if they are required.

My daughter wears a patch over her ‘strong’ eye for 3 hours a day in order to force her brain to establish connections with her ‘weak’ eye. We try to lighten up the process by letting her choose which patch pattern to wear; today she chose the patch with the lipsticks and high-heeled shoes on it. Some days she jokes that she looks like a pirate princess. That's my girl.  We are hopeful that we will see some improvement over the coming months, although we recognize that an earlier intervention may have been beneficial to her long term prognosis.

To find an optometrist near you, visit The Ontario Association of Optometrists website here.

Jennifer Hartman, Guest Blogger
 

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The term "probate"  recurs throughout estates practice as a noun, verb and adjective.  The most common context refers to the process of getting a court to provide some sort of official certification or recognition that a testatmentary instrument is the Last Will of a deceased.  In Ontario, the probate process results in the issuance of a Certificate of Appointment of Estate Trustee With a Will (or Without a Will).

Under the modern Rules of Civil Procedure, the procedure resulting in the issuance of a Certificate of Appointment rarely requires that a judge review the application, or even the alleged Will.  By Rule 74.14, an application need be referred to a Judge only where, in the opinion of the Registrar, the application and the accompanying materials are not complete or contain information on which the Registrar has a doubt.  This results in an efficient administrative process, but any interested party can challenge the validity of a such a probated Will, and the fact that a Will has been "probated" has no probative value when it comes to proving the Will in solemn form, as it is called.  

A judgment upholding the validity of a Will does not necessarily "probate" that Will.  Parties to the proceeding may not want a Certificate of Appointment to be issued, and so they will not request that a Certificate of Appointment be issued as part of the Judgment.  This might be the case where the Will is a "corporate" or "secondary" will, and is restricted to assets that can pass outside of probate (often to avoid estates administration tax).

Have a great weekend,

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

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George Steinbrenner, owner of the New York Yankees, passed away yesterday.  During his 37-year ownership, the flagship franchise won 7 World Series Titles.   Steinbrenner bought the Yankees with a group of investors for $10 million from CBS in 1973.  His personal investment was $160,000, which has grown to an estimated $880 million under his ownership and management.

Because of the timing of his death, George Steinbrenner's estate (estimated by Forbes at US$1.15 billion) could escape the U.S. federal estates tax.  Steinbrenner died during a temporary 1-year lapse period - the tax lapsed at the beginning of 2010, and could not be revived in time to apply to the year 2010.  At 55% on estates worth $3.5 million or more, the straight tax hit would have been about $600 million. 

Of course, his estate's exposure to the estates tax would depend on his estate planning, as noted in this Wall Street Journal article.  But Steinbrenner's death is free of the 55% estates tax, unlike the death of Chicago Cubs owner P.K. Wrigley, whose family had to sell that franchise to fund the tax liability on his death in 1977.  That's fortunate, because according to the Wall Street Journal, the franchise is 95% leveraged in debt to finance the construction of the new Yankee Stadium. 

Steinbrenner's heirs are his wife and children, and the franchise will be apparently be spared succession issues.  Steinbrenner's sons have been managing the franchise since 2007 according to the New York Times.  Steinbrenner's succession plan, which he openly discussed in 2003, appears to be succeeding as with everything else he did. 

Have a great day,

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

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Estates law often has distinct legal meanings for common terms. Take the term "personal representative". The term is defined in estates statutes, but also appears with and without definition in business corporations statutes and other statutes. 

Adams v. Ontario (1996) provides that when the phrase "personal representative" is used in connection with a deceased and the administration of the deceased’s estate, it can have only one meaning, which is the meaning set out in the definition contained in the Estates Administration Act, the Trustee Act, and in the Succession Law Reform Act:

1(1) “personal representative” means an executor, an administrator, or an administrator
with the will annexed.

The term is therefore very broad: it includes both the executor (who may never receive probate) and the recipient of a Certificate of Appointment of Estate Trustee with a Will.

The same case acknowledges that the term “personal representative” can have other meanings when it is not applied to a deceased or the administration of a deceased’s estate, such as in Ontario's Business Corporations Act.

Thanks for reading,

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

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Listen to: Intensive Wills and Estates Workshop

This week on Hull on Estates, Natalia Angelini and Rick Bickhram discuss the Intensive Wills and Estates Workshop that recently took place at Osgoode Hall Law School. The three day workshop covered an array of will and estates matters, including questions that will be asked during an initial meeting to gather necessary information to start preparing a will.
 

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.

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

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Section 10(1) of the Estates Act provides that appeals in proceedings under the Act are to be made to the Divisional Court.  This is a procedural holdover from the old days before the Surrogate Court was merged with the Superior Court of Justice (or more perhaps more accurately, acquired by). The Surrogate Court was an inferior court, and therefore appeals had to be made to the Divisional Court. 

By section 10(2), any person beneficially interested in the estate may appeal, even if the personal representative does not.  This provision resolves potential technical complications associated with standing.  It is also required from a practical perspective since in many cases, the personal representative is also a litigant personally, and is largely and acceptably silent in his or her capacity as personal representative.

Note that this provision does not preclude appealing to the Court of Appeal, which by section 6(2) of the Courts of Justice Act has jurisdiction to hear and determine an appeal that lies to the Divisional Court, if an appeal in the same proceeding lies to and is taken to the Court of Appeal.   

Have a great day,

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

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While returning to the office after a meeting Wednesday afternoon, I couldn't help but notice how many people were watching the Spanish defeat the Germans on the giant movie projectors set up in Toronto's underground labyrinth (for non-Torontonians: the major downtown subway stops, shopping centers and towers are connected by an underground network of tunnels and food courts).  The scene was replicated all along my journey.  What I did not see were the weeping business owners, but they must be out there.

According to this AP article, and this similar article, the World Cup will cost the German economy US$8 billion (0.27% GDP), Brazil shuts down, and as for Italy: when Italian FIAT autoworkers went on strike, by sheer coincidence the timing was 30 minutes before game time (did management even notice?); the issue was whether the workers could watch the game.  The World Cup is the fourth largest sapper of the US economy because of afternoon timing not popularity (March Madness NCAA basketball is tops).

Congrats to the Spanish champions.

Have a great and productive week,

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

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I don’t know about you, but I would be enjoying this heat wave a lot more if I wasn’t smack dab in the centre of the smog advisory zone. Although, I can’t really complain as I wasn’t one of the unlucky people stuck in elevator shafts during the power outage earlier this week without air conditioning. Ugh.

On the opposite end of the spectrum, going through a hot summer confined in a cold air-conditioned office is another form of torture in my view. Interestingly, an article in the July 2, 2010 edition of The Lawyers Weekly on room temperature gathered the following data from a survey of 95 US office buildings:

·                    When the air gets too chilly, productivity declines.

·                    Symptoms were found of, among other things, problems with upper and lower respiratory tracts, eyes, and skin as well as headache, fatigue, and difficulty concentrating.  These symptoms were increased by 50% in buildings kept below 23 degrees (often temperatures are set on the assumption that the building is full - research indicates usually 40 to 50% of employees are there).

·                    When people experience temperatures they feel comfortable with (usually warmer than cooler) they do more work and spend more time at their desks.

Some recommendations offered are setting room temperature in common areas to industry standards, placing thermostats in individual offices, and possibly adding a humidifier. 

I hope you all find your own way of beating the heat, and the cold. Have a great weekend!

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

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Estate litigators in Ontario know full well that the historical rule that costs are usually paid from the estate assets is no longer the case. They are seeing a trend in the case law that if the Court is of the impression that one of the parties to the dispute has behaved improperly at any stage of the litigation, including advancing a position not supported by the evidence, significant cost awards against that person could be made. 

Moreover, Judges seem to be increasingly exercising their discretion to ensure cost awards are subject to the overriding principle of fairness and reasonableness in light of all the circumstances of each particular case, as well as proportionate to the amount at issue. So even if one is successful and has conducted herself appropriately in the litigation, she may still have to absorb a portion of (and possibly all of) her legal costs.

We are also seeing evidence of this trend beyond our borders, notably in a recent Alberta decision, where the Court dismissed a son’s Will challenge in respect of his deceased father’s estate, and similarly dismissed his dependant’s relief claim. 

Notwithstanding his loss, the son sought recovery of his legal costs from the estate. The Court found, however, that he was to personally pay his costs as, (a) the testator did not cause the litigation, (b) the challenge to the testator’s capacity and allegation of undue influence were unreasonable, and (c) the son rejected reasonable offers to settle. Moreover, the son was Ordered to pay “double party-party costs” of his sister, a beneficiary and estate trustee of the estate (as a result of the Rules of Alberta that seem to bear some resemblance to our Rule 49).

I suppose this serves as another reminder to us all to keep this issue top of mind throughout the life of a dispute.

Thanks for reading and have a good day,

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

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My blog posts this week have been inspired by a Globe and Mail article that a summer student handed to me about the late Gail Posner’s trust provisions for her dogs, Conchita, April Maria and Lucia.

In yesterday’s blog I noted that while Wills are an opportunity for individuals to provide for their loved ones, there is no guarantee that our stated wishes for our beloved companion animals will be sacrosanct. For example, the late Leona Helmsley’s $12-million trust for her dog Trouble was reduced to $2-million by a Manhattan Judge on the ground that the deceased lacked capacity with regard to her Will and the Trust Agreement.

In the Globe and Mail article that inspired my posts this week, Barry Seltzer noted that Canadian legislatures may wish to consider “ante-mortem” probate as a way to ensure capacity does not become an issue in these cases. Ante-mortem probate is a technique used in certain states, including Arkansas, North Dakota, and Ohio, to validate a will while the person is still alive so that it cannot be contested once the person passes away.

In some cases, the wishes of a testator regarding his pets are contrary to public policy and, thus, are held to be void. For example, some pet owners have included clauses in their wills directing that their pets be euthanized upon their death (perhaps because they feel that their animals will be distraught without them). 

In one such case a testator (Mr. Clive Wishart) directed that the Royal Canadian Mounted Police (“RCMP”) shoot four of his horses. The RCMP refused and the matter was brought to a New Brunswick Court where it was held that the direction to shoot “four healthy animals” was contrary to public policy because doing so would serve “no useful purpose” and “would be a waste of resources and estate assets even if carried out humanely.” 

For those of you interested in reviewing the case, the citation is: Wishart Estate (Re), [1992] N.B.J. No. 547.

Thank you for reading!

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

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Listen to: Observations Pertaining to Estates and Trusts Law

This week David Smith and Nadia Harasymowycz discuss Observations Pertaining to Estates and Trusts Law.

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

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

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

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Pets are becoming increasingly important to Canadians. According to a 2001 IPSOS-REID "Paws and Claws" pet ownership study, more than half of all Canadian households owned a cat or a dog in 2001, with one third of households owning cats and one-third owning dogs.

Since Wills are an opportunity for individuals to provide for their loved ones, it’s not surprising that people are choosing to make provision for their beloved animal companions. However, there is no guarantee that their wishes will be sacrosanct.

In a recent Globe and Mail article, Barry Seltzer (a Toronto estates lawyer) noted that this was certainly the case for the late Leona Helmsley who left 12 million dollars in Trust for her beloved Maltese named Trouble and left nothing to 2 of her grandchildren for “reasons that are known to them.”   As a result of a Will Challenge (and as noted in an earlier blog post), the Trust was undone by a Manhattan Judge who reduced it to  $2-million (much to the chagrin of Trouble, I am sure) and the disinherited grandchildren were awarded $2-million each. The basis: incapacity.

And because I know you are all wondering about Trouble, let me assure you that while the deceased's wishes were not carried out exactly as she had intended, recent reports indicate that Trouble is doing just fine! If you don't believe me, click here.

Yesterday I discussed the more recent headliner involving the Estate of the late heiress Gail Posner who left a mansion valued at approximately $8.3-million as well as $3-million in trust to her 3 dogs, while leaving only $1-million to her only son, Bret Carr. Well, I'm sure it will come as no surprise to you that Bret Carr has initiated litigation against the Estate. It appears that he is seeking to have his late mother’s Will revoked on the grounds that her level of devotion to her dogs is a sign of mental illness *gasp - dog lovers unite* and that household aids drugged her, convinced her that Bret was trying to kill her and induced her to change her Will and Trust Agreement.

Thank you for reading!

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

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There has been a great deal of discussion about the late Leona Helmsley who, when she died, left 12 million dollars in Trust for her beloved Maltese Trouble, while leaving nothing to 2 of her grandchildren for “reasons that are known to them.”

Well it’s happened again…another estate is going to the dogs! Our summer student forwarded me a Globe and Mail article discussing the provisions that the late heiress Gail Posner made for the benefit of her fabulously famous Chihuahua Conchita and her 2 other dogs, April Maria and Lucia. These pampered pooches are to receive an $8.3 million mansion and a $3-million trust fund under her estate while the deceased’s only son, Bret Carr, takes a meagre $1-million in comparison.

According to the terms of a Trust Agreement (amended by the late heiress in 2008), so long as she had dogs at the time of her death, the trustees:

1.  are to retain the mansion property (located in Miami Beach) plus a sum of money not more than $3-million to cover the carrying costs of the mansion.

2.  shall pay $5-million to Elizabeth Beckford to care for Conchita, April Maria, and Lucia. I note that the deceased provided that they are to be cared for with “the same degree of care” they received while Posner was alive (which, I suppose, will mean the continuance of their weekly doggie spa appointments).

Upon the death of the dogs, the mansion is to be sold and the proceeds are to go to charity. The remainder of the estate (after certain specific bequests) goes to animal shelters, breast cancer prevention, and suicide-prevention centres.

Those are some lucky dogs (shhhhh – don’t tell my dogs, Digger and Nicky. They’re spoiled enough)

Thank you for reading!

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