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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As lawyers well know, all lawsuits must be instituted within the applicable limitation period as a first hurdle to successful litigation. While the time periods within which one must start a claim are clear in the Limitations Act and in other legislation, the time from which those periods start to run is not always so clear and may be a matter for a judge to decide. 

In Zurba v. Lakeridge Health Corp. (2010), 99 O.R. (3d) 596 (ON SCJ), the plaintiff fractured his ankle in a way that exposed his bone and internal tissues to grass and dirt in August of 2003. The doctor who initially treated the plaintiff cleaned and dressed the wound with a cast instead of proceeding with the necessary surgery. Significant ongoing infection at the fracture site later caused another doctor to suggest amputation. The plaintiff refused and after lengthy course of surgeries and therapy with no improvement, the plaintiff retained counsel and initiated the law suit. The plaintiff subsequently received an expert medical opinion from an orthopaedic expert that the treating doctor’s care was negligent.

The Ontario Superior Court considered the Limitations Act, 2002 and its applicability with respect to the discoverability of the cause of action. Lauwers, J. found that a plaintiff must not only know of the injury but must also know that someone erred before the cause of action crystallizes and the limitation period commences running.

The Court went on to establish two categories of cases: 1) Where an expert opinion is not necessary to know whether to institute an action because all the material facts are known; and 2) where an expert opinion is required to trigger the limitation period because all material facts cannot be known without one. In Zurba, notwithstanding that the statement of claim was issued before the expert medical report was obtained, the Court found that it could consider the report with respect to discoverability in order to determine when the limitation period began to run.

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

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With the recent case law moving in the direction of “loser pays”, costs in estates matters are becoming more and more of a concern to litigants. If only there was insurance against such a risk, you say. Well, now there may be, in certain cases. It is called Opponent’s Costs Indemnity (OCI©) and it is offered by Lexfund Management Inc.  

Lexfund is a third-party litigation funding company that offers funding for what it determines to be meritorious commercial litigation lawsuits for monetary damages of $1 Million or more. For litigation that meets Lexfund’s criteria, funding is provided on the basis that the plaintiff owes nothing if the case is lost. Lexfund’s new OCI insurance is a companion product designed to alleviate the plaintiff’s anxiety and apprehension over the possibility of having to pay the defendant’s court costs if the claim is unsuccessful.   

Another service you may wish to check out is BridgePoint Financial Services. BridgePoint has a variety of plaintiff lending services. They offer flexible and affordable "bridge loans" to help plaintiffs carry on with their lives without financial stress while providing their lawyers the time needed to negotiate a reasonable settlement of their legal claims. BridgePoint will tailor a financing solution to specific needs while ensuring that every loan offered makes sense, relative to the claim.

Lexfund and BridgePoint offer a variety of options for plaintiffs with strong claims who might otherwise have to abandon their cases due to the financial pressures of litigation. 

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

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Listen to: Estate Administration

This week on Hull on Estates and Succession Planning, Ian continues to discuss estate administration. Specifically, he examines problems that may arise and how to avoid them.
 

If you have any questions, 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 Nolan v. Kerry (Canada) Inc., 2009 SCC 39 the Supreme Court of Canada considered, inter alia, when costs can be awarded out of a trust fund in the context of a pension plan dispute regarding the employer’s obligations. The pension plan contained defined benefit (“DB”) and defined contribution (“DC”) components.   The CA Employees Pension Committee (the “Committee”) sought to have funds paid into the pension fund to the benefit of the DB members only.

In considering when costs are payable out of a trust, the Court noted that there were three categories of cases in the wills and estate context: 1) Where trustees apply to a court to construe the terms of the trust deed so that they may determine the proper administration of the trust; 2) similar cases where beneficiaries of the trust apply rather than the trustees; and 3) where a beneficiary makes a claim which is adverse to other beneficiaries of the trust. In the first two cases costs may rightfully be paid from the trust fund. However, costs will not be paid from the fund in cases that fall under the third category.

The key question was whether the litigation was adversarial or whether it was aimed at the due administration of the trust. Adversarial claims did not qualify for a costs award from the trust fund. In Nolan v. Kerry the litigation was adversarial in nature because it was ultimately about the propriety of the employer’s actions and because the Committee sought to have funds paid into the pension fund to the benefit of the DB members only. The employer was successful and there was no reason to penalize it by diminishing the pension fund surplus, thereby reducing its opportunity for contribution holidays.

The Supreme Court of Canada affirmed the decision of the Ontario Court of Appeal in favour of the employer. The Committee was not entitled to its costs out of the pension fund and costs were ordered against it as the unsuccessful party.

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

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Ever dream of being an astronaut? If you were not one in life fear not, there is still the chance that you can travel in space after your death. According to a Toronto Star article by Nicole Baute, it would appear that when it comes to burial possibilities, the sky is not the limit.

Celestis Inc. is a company co-founded by commercial space age pioneer Charles Chafer that specializes in “Memorial Spaceflights”. The ashes are placed in aluminum capsules inside a Celestis spacecraft, which is a small cylinder that hitches a ride on a rocket heading elsewhere. The spacecraft breaks away from the rocket once it is deep in space and then orbits the earth for anywhere from a few years to several hundred years, depending on how far into space it goes. Solar wind and the natural degradation of the orbit eventually pull the spacecraft back into the earth’s atmosphere, where it incinerates like a meteor upon contact. The cost is anywhere from $695 to $12,500 $US.

If space travel isn’t for you, Baute reports on other unconventional options. Perhaps you would like to have your ashes pressed into a vinyl record for family and friends (the sound quality is a little scratchy and you might have to supply the turntable) or even an attractive paper weight. Those who are concerned about the environment can have themselves composted. As for me, I think I’d like to be turned into a diamond. 

Considering all the burial options out there, with a little imagination, you can go to infinity and beyond! 

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

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Maybe it was just me, or maybe it was a slow news month, but it seemed that August was replete with various reports of studies breathlessly declaring that common character traits of toddlers were accurate predictors of various adult frailties.  Charming.

Scott Stinson published an opinion piece in the National Post this week that poked some fun at the media's obsession with studies as being inherently newsworthy when, quite often, there is good reason to question not only the outcome of the study but the purpose of the study in the first place. Stinson hilariously begins: "Hello, friends. It’s time for another installment of research from the Institute for the Study of Things We Knew Already, where we poke at the soft underbelly of science research and the media that faithfully reports the findings."  He goes on to note that recent studies reported in the media include such earth-shaking pronouncements as: “Polygamy makes for unhappy families” and “Too much TV, video and computer can make teens fatter.” 

Studies are no doubt fodder for the mainstream media and a staple of such publications as Men's Health .  And they can be important means of informing the public of serious issues ( see, for example, Vitamin D , Climate Change, etc.)   On the other hand, sometimes a degree of cynism may be in order: Stinson notes a report that suggested that eating cheeseburgers caused asthma ("Cheese Wheeze" was the headline) when the report actually made the rather fuzzy observation that "lifestyle factors may favour its development..."

Have a Good Weekend,

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

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When a testamentary document comes before the Court, it is commonly understood that the Court will strive to give effect to the testator's intention to make a Will and to avoid an intestacy if at all possible. Of course, not every Will is drawn by a competent lawyer.  In the internet age (and the will kit age) do-it-yourselfers constantly challenge the Probate Court with documents which challenge common preconceptions. And lawyer-drawn Wills may themselves be modified after the fact by the testator's handwriting in an ill-advised attempt to save legal fees.

As a general proposition, handwritten portions of a will kit or the holographic part of any document containing non-holographic writing, may be probated as a Holograph Will provided the Court is satisfied that: (i) the document was intended to have dispositive effect; (ii) the typed printing is "superfluous or unessential"; and (iii) the holographic parts are capable of standing by themselves without the typed print.

Such was the case in Re Laidlaw Estate, a recent case out of the Court of Queen's Bench of Alberta.  The handwritten changes made by the testator to his lawyer-drawn and executed Will could not function as valid amendments given the absence of witnesses.  However, the Court considered the handwritten changes to the Will to stand on their own and therefore be probated as a Holograph Will.

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

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In the recent Newfoundland Court of Appeal decision, Dicks v. Dicks Estate, the Court had occasion to consider, among other things, whether the manner in which an estate trustee exercised her discretion to encroach on capital was cause to order her removal. 

The Testator created a trust benefiting his wife with the income with the capital passing to his four children (one of whom was the trustee) on her death.  The value of the estate was in excess of $1.5 million. In addition to her interest under the Will, the surviving spouse received assets as designated beneficiary and by right of survivorship of over $1 million.

The trustee had the power to encroach for the benefit of the surviving spouse. The terms of the trust also specifically relieved the Trustee from the “even-handed” rule and authorized her to use her discretion without regard to the interest of any residual beneficiary, even to the point of the complete exhaustion of the trust.  Notwithstanding this very broad discretion, the estate trustee did not acquiesce to every request for encroachment made by the life tenant.  The trial judge observed that this approach was "unnecessarily restrictive and was not consistent with what was contemplated in the Will" yet amounted to a reasonable exercise of discretion.

The Court of Appeal, in upholding the trial judge's determination, agreed that there was no evidence of lack of bona fides on the part of the trustee and no evidence that her position as a beneficiary influenced her decision making. Friction, hostility or animosity between the trustee and the other beneficiaries was not a reason to remove the trustee. Neither will every mistake or other failure by the trustee in the past result in removal. The appropriate question is whether the trust is likely to be administered properly in accordance with the fiduciary duties of the trustee with due regard to the interests and welfare of the beneficiaries.

Apparently, leave to appeal to the Supreme Court of Canada has been sought.  Stay tuned.

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

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Listen to: Forensic Document Examination

This week on Hull on Estates, Rick Bickhram and David Smith discuss forensic document examination and how it applies to the rules of evidence.
 

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.
 

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

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One day, when I was about 7 years old, my brother offered me a quarter, the caveat being that I would have to earn the quarter by running around the perimeter of the house, outside, in my bare feet. This would not have been so much of a barrier had it not been the middle of winter, and had the snow not reached the height of my kneecaps. Alas, my head spun with the possibilities… Dubble Bubble? Popeye cigarettes? Dip-N-Stix? Desperate times called for desperate measures, and with little hesitation, off came the shoes, off came the socks, and I burst out the front door and started the most hellacious sprint of my short life. I can’t adequately describe the searing pain that shot up both legs the moment my feet hit that snow. I tripped on the root of the overgrown euonymus bush on the side of the house and tumbled face-first into the snow, so now I was thoroughly frozen, but I got to my feet and kept my eye on the ball, or quarter, in this case, and continued around the house to complete my feat. My heart was pounding (early hypothermia?) but I was just so pleased with my accomplishment, and even more excited that I was well on my way to financial freedom. I heaved on the front door handle with the last smidgen of energy in my body, thinking only of the quarter that awaited inside.

The front door was locked.

As I stood on the front porch, eyes wide with terror, I could hear my brother laughing hysterically on the other side.

Flash forward to last week, when this CNN (online) headline caught my eye: “Siblings Still Pushing Your Buttons?”. The article’s author, Jane Isay, has written two books: "Mom Still Likes You Best: The Unfinished Business Between Siblings," and "Walking on Eggshells: Navigating the Delicate Relationship between Adult Children and Parents". [Frankly, I’m surprised I wasn’t contacted for either of these, but that’s an aside…]. Ms. Isay suggests that we reframe our historical experiences with our siblings in an attempt to achieve a new perspective, and even reconciliation.

As I scanned through the comments below the CNN article, I admit to being deeply comforted by the camaraderie of picked-on siblings out there. To the guy whose sister used to trick him into playing “Houdini” and would then tie him to the kitchen chair and leave him like that for a couple of hours while she went out to play, I raise my glass and say a hearty thank you for sharing your angst. Perhaps we can get a group rate on therapy….

Jennifer Hartman, Guest Blogger

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In a recent article published in STEP's Trust Quarterly Review, Audrey Giles profiles technological advances in the electronic recognition of handwriting.  For example, The Center of Excellence for Document Analysis and Recognition (CEDAR) at the University at Buffalo, State University of New York has developed electronic processes for the assessment of handwriting.  While such systems are funded by governments primarily concerned about white collar crime, forensic document examination is of great assistance to the estate litigator especially when trying to prove a fraud.

The difficulty is that, as Giles notes, while handwriting analysis can entail the comparison of hundreds of characteristics such as spacing between characters and the slope of letters, a signature is a very small sample which provides limited points of comparison for the document examiner.  To further compound the challenge to the document examiner, all signatures demonstrate some degree of natural variation and different people will exhibit different degrees of variation in their signature.  It is for this reason that the forensic document examiner will want as many samples of a true signature as possible before rendering an expert opinion.

The objective of the forensic document examiner is to provide opinion evidence for the consideration of the trier of fact as to whether a signature (on a Will for example) is that of the testator or a forgery.  One tool in the arsenal of the examiner is the Video Spectral Comparator which can reveal pencil guide lines or impressions that may have been used by the forger in an attempt to duplicate the testator's signature. Such attempts at forgery are remarkably crude when considered in the context of advances in scanners and software which present new challenges to those charged with trying to detect a fraud.

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

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Can a work of fiction that serves as a nice diversion from the latest case on the application of the cy-pres doctrine, actually have a plot device that would interest the estates practitioner? 

Stone's Fall is one of those books that, though a massive work of fiction, is a literal page-turner.  It is a mystery/thriller written by Iain Pears who, in 1998, gained huge notoriety for his book "An Instance of the Fingerpost."  The plot is compelling and (like An Instance of the Fingerpost) is told in the first person through multiple characters.  To further complicate things, it unfolds in reverse chronology.  Highly recommended.

Without in any way being a "spoiler", the story opens with a journalist leaving his day job to assist a widow's search for the unidentified child of her deceased husband.  His Will, it seems, identified a very significant sum of money for his unidentified son.  Until this heir is located, the business tycoon's massive estate cannot be distributed. Havoc ensues.

Certainly when I picked up the book, the estates angle was not readily apparent.  That the ascertainment of heirs could be a fundamental plot device in what Malcolm Gladwell called his favourite book of 2009 is more than a little surprising.  However, for a writer of mysteries, the world of estates and trusts can apparently provide ample fodder.  And, by the way, Stone's Fall has an amazing twist that would be a spoiler to disclose! 

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

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Justice Brown nostalgically opens his reasons for decision in Wallbridge Estate, 2010 ONSC 3409 (CanLII) as follows:

“Those of a certain vintage may remember the television ad for a certain brand of breath mint.  As the voice-over pronounced, “Two, two, two mints in one”, the two rolls of breath mint merged into one.  Does the principle of “two mints in one” apply to probate applications?  More specifically, can the Estates Office process an application for a certificate of appointment of estate trustee with a will when the applicant has placed required information in one affidavit, instead of the two stipulated by the Rules of Civil Procedure?

After succinctly summing up the question, Brown J. provides the answer: Yes.

In Wallbridge, the applicant for a Certificate of Appointment filed an affidavit that indicated that the Will in question was signed in the presence of two witnesses, and also that there were certain changes to the Will after it was signed. The Application was rejected because, although the necessary information was provided, the Applicant did not submit an Affidavit of Execution and a separate Affidavit of Condition. The matter was then placed before Justice Brown.

In his decision, Justice Brown cited extensively from his decision in Estate of Michael O’Flynn (See blog here). There, Brown J. allowed a party to combine a Renunciation, Consent to Appointment and Consent to Dispense with Bond form into one document.

In Wallbridge, Brown J. noted that the affidavit evidence complied with requirements of the legislation (if not the Rules). 

He also noted three additional reasons for granting the Application. Firstly, the Court failed to communicate with the Applicant’s counsel by email, which resulted in a waste of time. Secondly, the Applicant was dying of cancer: urgency was required. Thirdly, Brown J. referred to his O’Flynn decision and his complaint that the court was locked in the past with its reliance on a paper culture. Despite the concerns raised by Brown J. in O’Flynn, nothing to address the issue had been done. However, as a judge, he was constrained as to what he could do to address the problem. Thus, in addition to being satisfied that the technical requirements of the Succession Law Reform Act were complied with, he dispensed with compliance with the Rules “out of sheer frustration that those in higher places in government who can take steps to improve the efficiency of the probate system in this province, and thereby enhance access to justice for the Ontario public, are not doing so.”

(As an aside, Certs, the mint referred to by Brown J. in his opening paragraph, has been ruled to be a breath mint, as opposed to a candy mint, by the U.S. Court of Appeals for the Federal Circuit in Washington.)

Thanks for reading.

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

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The recent endorsement of Justice Annis in the case of Hedley v. Hayes Estate 2010 ONSC 4485 (CanLII) illustrates the fundamental requirement of serving financially-interested parties in estates proceedings.

Jeremy Hayes died without a Will.  His long-time unmarried spouse was granted a Certificate of Appointment of Estate Trustee without a Will (the "Estate Trustee").  As we all know, the intestacy provisions in Part II of Ontario's Succession Law Reform Act do not grant an interest to unmarried spouses, and the deceased had a number of relatives apparently with interests on any intestacy. 

The Estate Trustee brought an application for a declaration of a "Resulting/Constructive trust that Mr. Hayes' solely owned bank accounts and investments were held for Mrs. Hedley's benefit", apparently under the Family Law Rules' Rule 1(2)(c), and a motion to dispense with the need for a case conference under Family Law Rule 14(4.2).  The moving applicant Estate Trustee did not serve the relatives with either the application or the motion materials. 

The judge refused to grant the motion.  The failure to serve the relatives who may had interests on an intestacy meant that the "affected parties" (Family Law Rule 7(2)) had not been served.    The endorsement required service of these parties.  The parties could then consider whether this matter was better brought under Rule 75 of the Rules of Civil Procedure (Contested Estates matters), since this was not really a family law case and the issues related better to estates.  And as we all know, Rule 75 requires service of all persons "appearing to have a financial interest in the estate".  Finally, the judge also noted the inherent conflict of interest in the Estate Trustee bringing the proceeding in her personal capacity while being the only named respondent as Estate Trustee.

Thanks for reading,

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

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Listen to: Continuing Professional Development

This week on Hull on Estates, Sharon Davis and Natalia Angelini discuss a recent requirement put into place by The Law Society of Upper Canada. On January 1, 2011 lawyers and paralegals will be required to put in 12 hours of continuing professionalism each year.   Specifically, there will be three hours delegated to topics relating to ethics, professionalism and practice management.

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.

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

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The basic principle governing health care treatment of patients is that treatments should not be administered in the absence of the patient's consent, or where the patient is incapable the patient's substitute decision-maker: section 10 of Ontario's Health Care Consent Act ("HCCA").  The onus is on the health practitioner to decide whether the patient is capable and can give consent.  The range of persons within the HCCA's s. 2(1) definition of "health practitioner" is broad. 

A person who wishes to dispute the finding of incapacity by the health practitioner may apply under section 32(1) of the HCCA to the Consent and Capacity Board (the "Board") for a review of the health practitioner's finding that a person is incapable with respect to the treatment.  The Board may confirm the health practitioner's finding or may determine that person is capable.  Section 80 of the HCCA allows a party to appeal Board decisions to the Superior Court.  The court may exercise all the Board's powers, substitute its opinion for that of the health practitioner's, or refer the matter back to the Board with directions for rehearing in whole or in part.     

The standard of review for the Board's decision is correctness with respect to its interpretation of the law, and reasonableness with respect to its application of the law to the facts, since the issue of incapacity is a mixed question of fact and law: Starson v. Swayze, 2003 SCC 32 (CanLII), [2003] 1 S.C.R. 722.  Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts.  This means that the Board’s conclusion will be upheld provided it is among the range of conclusions that could reasonably have been reached on the law and evidence. 

Courts tend to carefully review appeals from Board findings of incapacity.  In Starson v. Swayze, the Supreme Court upheld the trial judge's overturning the Board's finding of incapacity.  The trial judge examined the extent to which the conclusions drawn by the Board were supported by the evidence from the examination, and concluded they were not reasonably so.  In Re Koch, the Board's finding of incapacity was overturned.  Again, the court found that the conclusions of the Board were not supported by the evidence from the examination.  Also, the examination itself was insufficiently probing to support the conclusions drawn.  In Hillier v. Milojevic, 2010 ONSC 4514 (CanLII), the court allowed an appeal of the Board's finding of incapacity where the hearing had not been conducted in an procedurally appropriate manner.  The allegedly incapable person had not been given sufficient time to answer questions, had been questioned rapidly in a manner that disrupted his train of thought, and had to attend the hearing without his glasses and a computer on which he relied for organization.  The court returned the matter to the Board with directions to conduct another hearing with the assistance of an amicus curaie.

Have a great day,

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

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What happens when an injured person requires urgent medical care, but is not able to personally consent?  Guardianship proceedings under the Substitute Decisions Act ("SDA") grant all parties, including the allegedly incapable person, the full protections of the Rules of Civil Procedure.  This is required given the effects of an order appointing a guardian, which effectively removes many aspects of adulthood from an incapable person. 

When urgent medical treatment is required, doctors and patients' loved ones cannot wait several months for a full guardianship application.  Ontario's Health Care Consent Act ("HCCA") provides a mechanism whereby consent to treatment can be given on an incapable person's behalf by a substitute decision-maker.  The HCCA's test for incapacity (s. 4(1)) is the same as that in section 58(1) of the SDA, and the HCCA also contains the presumption of capacity (s.4(2)). 

Section 20 of the HCCA provides a prioritized list of substitute decision-makers, in the order one would expect: court-appointed guardian of the person > attorney for personal care > HCCA Board-appointed decision maker > spouse > child or parent, etc.

Have a great day,

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

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Serving on a jury is one of our most fundamental civic duties. It can, however, pose hardships on those individuals summoned to the jury box, particularly when one considers the financial impact of giving up your income while acting as a juror.

Despite the financial hardship associated with jury duty, it is a serious undertaking and should be seen as such. As a juror, you are required to play an active role in the administration of justice and, together with other citizens, you will be required render a verdict of guilt or innocence in a criminal matter.  

A recent article in the Globe & Mail with the above captioned-title underscores the importance of taking jury duty seriously. 

A Michigan woman, summoned to be a juror, posted on her Facebook page that it was “Gonna be fun to tell the defendant they’re GUILTY”

Alarmingly, her post was found by the defence team BEFORE it had even started its case.

The next day, the juror found herself removed from the jury. Judge Druzinski told the Michigan woman that it did not matter whether she used Facebook to express an opinion or simply spoke to a friend about the case.

“You violated your oath. ... You had decided she was already guilty without hearing the other side”

By October, 1, 2010, the Michigan woman must submit an essay about the 6th Amendment to the U.S. Constitution and pay a $250 fine.

Have a great weekend!

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

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The National Post reviews the results of a recent poll that reveals Canadians fear our health-care system may not be able to handle the growing strain owing to the impact of aging baby boomers predicted to live longer than the previous generation.

Reportedly, there was broad agreement among Canadians that “urgent changes” need to be made so the system can provide today’s level of care to the baby boomers.  The feeling of urgency appears to be stemming from the fact that by 2036 Canada will have double the number of seniors it has now. 

The poll apparently indicated that few Canadians are prepared to fund this wanted change. Less than 25% said they are willing to pay more in taxes to ensure adequate health services for baby boomers as they age. Even fewer are willing to sacrifice health promotion programs. The majority prefer special temporary user fees for those who need services as a way to deal with the increased demand.

The Canadian Medical Association has apparently been pushing the idea of getting a national debate going on what kind of health-care system Canadians want, and how they want to pay for it. This would seem to accord with public sentiment, as the poll found that (contrary to Stephen Harper’s view) health care outranks the economy as the issue that should get the most attention from leaders. 

Have a good day,

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

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If you are a subscriber to the Hull & Hull LLP Toronto Estate Law Blog, you know that I am a relative newcomer to the blogging world.  What you couldn’t know is that I’m also a late convert to all things wireless and virtual.

My life is, for the most part, hard-wired. I still have a land line. I’m ashamed to admit that my printer is connected to my laptop by a cable. I insist on sending old-fashioned ‘snail-mail’ letters to friends and family, and when I’m throwing a party, I send a paper invitation!

I could go on ad nauseum, but you get my point: my life is not really organized by way of wireless technologies and virtual realities.

However, I’m intrigued by the idea of organizing my life, at least my work life, virtually. I was, therefore, drawn to the article in the September 3, 2010 issue of Lawyers Weekly with the above-captioned title.

The article was written by Luigi Benetton and he suggested that adding a virtual office to the physical office can, potentially, expand the market of a firm. According to the American Bar Association eLawyering Task Force, a virtual firm is “characterized by access by the firm’s clients to a password protected and secure web space where both the attorney and the client may interact and legal services are consumed by the client.” This type of lawyering, where the traditionally face-to-face meeting is not always necessary, certainly does create an additional medium for firms to connect with clients.

Hull & Hull LLP joined this virtual world in June 2008 when it launched an e-office on Second Life, a popular internet based virtual world created entirely by its residents. The office is used as an alternative medium to provide useful information for those seeking our firm’s expertise. 

While there are benefits of elawyering in terms of client service, there are pitfalls that make the virtual office a difficult reality. Our managing partner, Suzana Popovic-Montag, noted in the above-captioned article that elawyering is not well suited for every area of law and, by way of explanation, she noted that elawyering is “more difficult when you have litigation matters. There’ll still be examinations for discovery and court appearances, plus law society requirements to prove that clients are who they say they are.”

In the end, it seems that my hard-wired life style is not at risk of becoming obsolete any time soon. Rather, virtual mediums are proving to provide our firm with an additional platform for clients to connect with us and access important legal services.

Thanks for reading!

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

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Listen to: Designation of Beneficiaries under the Insurance Act

This week on Hull on Estates, David and Nadia discuss issues that arise surrounding the designation of beneficiaries under the Insurance Act and how they interact with provisions in testamentary documents.
 

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 Harasymowyc.
 

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Listen to: Designation of Beneficiaries under the Insurance Act

This week on Hull on Estates, David and Nadia discuss issues that arise surrounding the designation of beneficiaries under the Insurance Act and how they interact with provisions in testamentary documents.
 

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 Harasymowyc.
 

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 In my blog on August 26, 2010, I introduced the topic of predatory marriages and alluded that these marriages are, perhaps, too easily accomplished. I suggest that this may be the case because the test for capacity to marry, as stated in Banton v. Banton, is a very low one. In the Banton decision, the Honourable Justice Cullity held that the contract of marriage is a very simple one. Justice Cullity reached his decision by reviewing prior case law on the topic and, in particular, historical English jurisprudence dating back to the 1800’s which held that marriage does not require a high degree of intelligence to comprehend. 

Given that it does not require a high degree of intelligence to understand the contract of marriage, it is not too surprising that the test for the capacity to marry is much less stringent than the test for the capacity to make a Will or manage property.

The test for the capacity to marry, in my view, leaves the door wide open for greedy opportunists to marry vulnerable individuals for the sole purpose of gaining access to their property. We do see marriages between individuals with significant age differences and, at times, the elderly spouse is clearly being taken advantage of by a younger opportunist. Further, there are times when the elderly spouse becomes isolated from friends and family and dependant on the very person who is exploiting him or her.

Tragically, the exploited spouse may be left without the financial ability to support herself as she ages. Alternatively, the children and grandchildren of the exploited spouse may feel the brunt of the impact of the marriage where, for instance, the operation of the Succession Law Reform Act means that Will of the marrying spouse is revoked upon the marriage.

I would argue that the test for the capacity to marry, which dates back to jurisprudence from the 1800’s, is archaic in that it fails to acknowledge the very complex property rights that currently attach to marriage. In my view, and in light of the significant property rights at play, marriage should not be characterized as a simple contract. The test for the capacity to marry should, in my view, be broad enough to require that individuals understand the property rights that flow from marriage and the legal consequences related to marriage, including those that affect property.

How do we address this problem? There is, of course, potential for legislative reform. However, one would want to be careful that marriage does not become too heavily regulated.

What do you think?

Have a great day!

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

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In a prior blog by Paul Trudelle, a partner at Hull & Hull LLP, he explained the decision of Rooney Estate v. Stewart Estate (2007). In Rooney Estate v. Stewart Estate, the court highlighted some of the roles the Estate Trustee and the estate solicitor and held responsible for including, among other things, arranging for the funeral and disposition of remains.

Arranging for the funeral and disposition of remains can be burdensome, especially if the estate trustee was related to the Deceased. This task becomes even more daunting when they are dealing with the expenses of a funeral in which case, fewer are in the mood to bargain. Regrettably, this leads many spending more then they have to. 

I recently came across an interesting article, How to Cut Funeral Costs, which was published in The Wall Street Journal. Under this article, the author provides us with a few tips on how to keep costs reasonable when arranging a funeral service:

 

1.                  Learn your Rights: Funeral homes are prohibited from charging certain fees, and there may be a requirement that compels funeral homes to provide a written fee list upon request

2.                  Pre-plan: “Have a conversation with your family about what you want and what’s going to be meaningful to them.”

3.                  Consider pre-owned plots: Purchasing a pre-owned plot has always been a common practice; but the purchaser has moved out of the area where his plot is purchased. 

4.                  Compare Funeral Home Prices: it’s worthwhile to shop around. Prices vary from one home to another

Thank you for reading,

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

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In an aging society, our elderly can easily fall prey to predators looking to exploit them. Elder abuse can take many different forms: physical, psychological or financial abuse, or simply neglect.

I read an article yesterday about Huguette Clark, the 104 year old heiress whose wealth is estimated at half a billion dollars. During her lifetime, Clark made generous gifts towards those who cared for her. For instance, it is reported that Clark gifted $10 million dollars to her social secretary. 

It is reported that Clark’s wealth is being managed by her lawyer and her accountant. 

A former paralegal who worked for Clark’s attorney, has now blown the whistle on what she alleges is improper behavior by Clark’s attorney and accountant. According to reports, it is alleged that they “drafted a will that would have left money to [one of them], trying repeatedly to persuade her to sign it — then joked about their client and cursed her behind her back when she would not sign the will.” It is also reported that her lawyer allegedly solicited from Clark $1.5 million dollars to build a security system for a community where his daughters and their families live. In addition he allegedly sold a Stradivarius violin for $6 million dollars and a Renoir painting for $23.5 million. 

A criminal investigation has now been launched by the Manhattan district attorney, who has the Elder Abuse Unit of the New York County District Attorney's Office looking into the handling of Clark's finances.

It bears repeating that the complaints at this stage are unproven allegations. Nonetheless, the mere thought that this could happen provides us with a dreadful reminder of what the elderly face in our society today.

Thank you for reading,

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

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Last Friday, the Ontario Ministry of Health announced plans to introduce legislation later this month that will allow the province to expand its drug database to track prescription drugs. The narcotics database will identify prescription ‘hot spots’ and alert officials when a patient attempts to fill prescriptions from multiple doctors at multiple pharmacies. Prescriptions under both public and private drug plans will be monitored. [Currently, the tracking system only tracks drugs prescribed under a provincial program that funds meds for seniors, welfare recipients and the disabled.] Provincial Health Minister Deb Matthews indicates that the plan will also work with regulatory groups like the College of Physicians and Surgeons of Ontario to create ‘better pain management strategies for its members’. The proposed narcotics strategy has received resounding support from both the Centre for Addiction and Mental Health (CAMH) and the Ontario Pharmacists’ Association.

Earlier this year, I blogged about the issue of ‘doctor shopping’, defined as the practice of visiting numerous doctors, dentists, or pharmacies to fraudulently obtain prescriptions for non-medicinal use. Of particular concern are narcotics and other controlled substances, including painkilling opioids (including morphine, codeine-containing Tylenol 2s, 3s and 4s, Percocet, Oxycontin, and Fentanyl), stimulants (amphetamines such as Ritalin) and sedatives (such as Valium, Xanax, and Ativan).  Some stark statistics:
• In the past decade, prescriptions for oxycodone-containing drugs jumped 900% in Ontario. Last year, under the OHIP drug plan, the province spent over $150 million for narcotics, half of which was for Oxycontin.
• 18% of students (Grades 7 – 12) report using prescription opioids non-medicinally in the past year. The overwhelming source for the students’ opioids was not schools, or the street, but their own homes.
• Ontarians, per capita, use three times more prescribed narcotics than patients in other provinces.
• Last year, the Canadian Medical Association Journal reported that in Ontario, accidental deaths due to opioid use exceeded deaths from HIV.

As an aside, I am curious: In estate proceedings where testamentary capacity is in dispute, will the contents of the narcotics database be accessible pursuant to court-ordered production of “all relevant medical records”?
 

Jennifer Hartman, Guest Blogger