Listen to: Preparing for Trial
This week on Hull on Estates, Nadia Harasymowycz and Natalia Angelini discuss preparing for trial, specifically when doing a Will challenge.
If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz
Natalia R. Angelini – Click here for more information on Natalia Angelini.
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One of the objectives of our Hull and Hull blogs and podcasts is to contribute to the pool of educational material available on-line.
Recently, I was referred to the Khan Academy, a wonderful website which is also spreading education through the internet on a broad scale. The Khan Academy website uses streaming video to deliver lectures on a wide array of topics.
Founder Salman Khan explains on the website that "With just a computer and a pen-tablet-mouse, one can educate the world!" And Salman Khan does an excellent job of doing just that. The Khan Academy boasts over 1,800 educational, videos. Most of the videos are 10-20 minutes in length. They are conversational in tone, and are illustrated by Sal Khan using his tablet. Mr. Khan does an excellent job of explaining some very difficult topics.
The topics lean heavily towards the maths and sciences, but there are number of discourses on Economics and History, as well.
(Be sure to try out the "Blue Forehead" brain teaser.)
Thank you for reading,
Paul E. Trudelle - Click here for more information on Paul Trudelle.
Listen to: Interesting and Informative Books
This week on Hull on Estates and Succession Planning, Ian and Suzana discuss what they are currently reading for business and pleasure.
Some of the books they discuss are:
· The 50 Biggest Estate Planning Mistakes . . . and How to Avoid Them by Jean Blacklock and Sarah Kruger
· The High Road by Terry Fallis
· The Final Call by Kerry Fraser
· In Bound Marketing by Brian Halligan and Darmesh Shaw
· Say it with Series by Gene Zelazny
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 the matter of Estate of Divina Damm, 2010 ONSC 5119 (CanLII), Justice Brown reflected on the form of accounts to be used upon the filing of an application by a guardian for property to pass accounts.
Justice Brown noted that in passing accounts of a guardian, s. 42(6) of the Substitute Decisions Act, 1992 provides that "the procedure in the passing accounts is the same … as in the passing of executors' and administrators' accounts".
Rule 74.17(1) of the Rules of Civil Procedure specifies in detail the form of accounts to be filed. The Rule requires:
(a) an itemized accounting of assets under administration, cross-referenced to entries showing the disposition or partial disposition of the assets;
(b) an account of all money received;
(c) an account of all money disbursed;
(d) where investments are made, an account setting out all money paid to purchase investments, and money received by way of repayment or realization of assets in whole or in part;
(e) a statement of all unrealized original assets at the end of the accounting period;
(f) a statement of all money and investments at the end of the accounting period;
(g) a statement of all contingent or other liabilities at the end of the accounting period;
(h) a statement of compensation claimed; and
(i) such other statements and information as the court requires.
If the will or the trust deals separately with income and capital, the accounts are to show separately the receipts and disbursements of capital and income.
In the matter before Justice Brown, the accounts were said to lack the detail required by the Rules, and provided information at the "30,000 foot" level. Justice Brown felt that he could not hear the matter without greater particularization of the accounts. The accounts did not comply with the Rules; due to this lack of particularity, a question arose as to whether a respondent served with the accounts could properly understand the conduct of the guardian; and the Court could not link the particulars of the judgment (which sets out specific amounts for revenue receipts and disbursements and capital receipts and disbursements) to the evidence.
While he rejected the application, Justice Brown raised the question of whether the Rules should be amended so as to allow for a simpler form of accounts for smaller estates. However, until a rule change, all accounts must comply with the format set out in Rule 74.17(1).
Thanks for reading,
Paul Trudelle
The case of Antle v The Queen, 2009 TCC 465, 2010 FCA 280 (Can LII) (“Antle”) has been a much talked about decision. The appeal to the Federal Court of Appeal was dismissed just recently, on October 21, 2010.
Antle deals with the legality of a “capital property step-up strategy” whereby capital property with an accumulated gain (shares in a company) was shifted from the husband to a Barbados spousal trust. The trust sold the property to the beneficiary wife in exchange for a promissory note. The wife then sold the property to a third party purchaser and used the proceeds to pay off the promissory note. The trust distributed the funds to the wife as beneficiary, after which the trust was dissolved.
This scheme was apparently designed to result in no tax because there was no capital gain taxable in Canada, as there would have been had the husband sold the capital property directly to the third party. The capital gain arose in the trust in Barbados where there was no tax on capital gains.
While one might say that the case deals with the residency of the trust, the penultimate issue was whether a trust was created at all in the circumstances.
In order for a trust to be valid, there must be three certainties, namely, certainty of intention to create a trust, certainty in the subject matter of the trust, and certainty in the objects of the trust.
In this case, the Minister focused on the lack of certainty of intention to create the trust and the lack of certainty in the subject matter of the trust. The decision of the Minister was appealed to the Tax Court of Canada (“Tax Court Judge”). The decision of the Tax Court Judge was then appealed to the Federal Court of Appeal.
The Tax Court Judge found that there was no certainty of intention. The husband never intended to lose control of the shares or the money resulting from the sale and never intended to create a trust. The Tax Court Judge found that the husband’s actions and the surrounding circumstances could not support a conclusion that signing the Trust Deed reflected any true intention to settle shares in a discretionary trust, no matter how clear the language in the Trust Deed itself. It simply did not reflect his intentions.
The Tax Court Judge also found that there was no certainty of subject matter. The shares purportedly settled on the trust were in the possession of an unrelated party who claimed a beneficial interest in them. The unrelated party was paid out an amount of money on the final sale to the third party purchaser. The husband later successfully sued the unrelated party and recouped $1.38 million. The husband thereby retained an interest in the shares purportedly settled on the trust. If the husband transferred anything to the trustee, the Court found that it was not his full interest in the shares because there was an element of his ownership in the shares that did not pass. This created a lack of certainty of subject matter.
The Tax Court Judge also found that the trust was never constituted. It never came into existence because the shares were never transferred to the trust and were never in possession of the trustee. The shares remained in Canada throughout and no money ever reached the trustee. The timing and execution were such that the intended steps were not carried out sequentially so as to properly constitute the trust.
Notwithstanding the above findings, the Tax Court Judge determined that the above circumstance was not a sham, as also alleged by the Minister, as the transactions themselves were not disguised.
In an interesting twist, the Federal Court of Appeal concluded “that the Tax Court judge was bound to hold that the Trust was a sham based on the findings that he made”, and dismissed the appeal.
Enjoy the weekend,
Craig R. Vander Zee - Click here for more information on Craig Vander Zee.
Those wishing to vary a trust in Ontario, can look to the Variation of Trusts Act (R.S.O. 1990, c. V.1) (Act) for the authority to do so. Although the Act is surprisingly only one section in length, do not let the length fool you.
Essentially, the Act permits the Court to approve a variation of a trust under a will, settlement or other disposition on behalf of minor, unascertained, unborn or contingent beneficiaries if the variation, in the words of the Act, “appears to be for the benefit” of those persons.
While relying on the Act for jurisdiction to make a variation, there are many things to consider in pursuing a variation such as the procedure to follow and the criteria to meet in order to have the variation approved.
In the well-known case of R v. Irving, (1975), 11 O.R. (2d) 442 (H.C.), the Court set out three criteria to consider in determining whether to approve a variation, namely:
(i) does the variation keep alive the basic intention of the testator or settler?, (ii) does the variation benefit those for whom the Court is asked to consent?, and (iii) whether a prudent adult motivated by intelligent self-interest and sustained consideration of the expectancies and risks of the variation, would likely accept it?
There are a number of cases that have considered these criteria; too many to go into in this blog. Suffice it to say that the Act does provide an answer to the question as to whether one can vary a trust, but the answer is only a partial one as the Court will also consider criteria needed to be met in determining whether to approve a variation.
Thanks for reading,
Craig R. Vander Zee - Click here for more information on Craig Vander Zee.
Today’s blog looks at the case of Videchak v. Giarratano, 2009 CanLII 29914 (Ont. S.C.), which deals with, amongst other things, the common situation of an adult child holding assets jointly with a parent. Pecore v. Pecore, [2007] 1 S.C.R. 795 (S.C.C.) would tell us that in such situations, after the death of the parent, it is up to an adult child, who is not a dependant, to rebut the presumption that a resulting trust arises such that the asset, received for no consideration, is held for the benefit of the estate (that is, where the transfer into joint ownership is made for no consideration, the onus is placed on the adult child to demonstrate that a gift was intended).
Continue Reading...Listen to: Remedies for Breach of Duty by an Attorney for Property
This week on Hull on Estates, David Smith and Julia Evans discuss remedies for breach of fiduciary duty by attorneys for property acting on behalf of their incapable grantors.
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.
Julia Evans - Click here for more information on Julia Evans.
Continue Reading...Each year the Ontario Bar Association (OBA), Trusts and Estates Section, considers candidates for its Award of Excellence. Last year, the Section paid tribute to Hilary Laidlaw as the recipient.
The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates.
Any Trusts and Estates Section member of the OBA in good standing, as well as former members of the section who have retired or been appointed to the bench, but not including current officers of the Executive of the Trusts and Estates Section or the Executive of the OBA, are eligible to be nominated.
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.
Continue Reading...Having an open conversation with your parents about their financial matters and the importance of estate planning is never an easy task. Medical studies have indicated that people who have lived through the Great Depression prefer to keep their financial affairs to themselves. This presents a challenging task for loved ones trying to discuss with their parents financial matters and particularly who is best equipped to handle their finances if they are unable or how they expect to pay for long-term care should the need arise.
The New York Times recently published an article entitled, “Talking with Depression-Era Parents About Money”. In this article, Tara Siegel Bernard, the author, suggests the different ways that adult children could broach the topic with their parents such as:
Show and Tell: “Adult children could talk about their own estate plans - a show and tell”. This forces the parent to give thought to their children’s estate plan and opens the door for the child to ask how the parents have handled their own affairs.
Parental Duty: “Appeal to their duties as parents.”
Bring in a Pro: “Some parents may also feel more comfortable discussing their financial situation in front of a disinterested party, like a long time accountant, lawyer, or financial planner.” It appears that Ms. Bernard suggests having a disinterested party present could help the parent feel more secure, which likely would have the effect of the parent opening up about their financial matters. This sounds like a good idea; however, a word of caution, this suggestion also could lead to estate litigation, as arguments of undue influence could be advanced in the circumstances.
Timing: “Make sure you choose a good time and place to bring up the topic”. Obviously, having this sort of discussion at the family holiday party is not a good idea.
Thank you for reading and have a good day.
Rick Bickhram - Click here for more information on Rick Bickhram.
The Women’s Law Association of Ontario hosted a work and wellness luncheon with the Ontario Lawyer’s Assistance Program at the Ontario Bar Association yesterday afternoon.
The guest speaker, Naomi Nurgitz, an experienced lawyer and mediator, delivered an interesting presentation on Mindfullness Based Stress Reduction, a program that was developed at the University of Massachusetts Medical School.
Ms. Nurgitz discussed some of the physiological consequences of stress and the hormones released as a result of it, on our bodies. She explained that whether stress is caused by our perception of a threat of physical danger or by us experiencing anxiety provoking thoughts, the same physiological changes occur in our bodies. These changes include tremor, sweating, heart palpitations, headache, impairment of our immune defences, interference with our sleeping patterns and our cellular repair mechanisms.
Mindfullness Based Stress Reduction is a program that teaches people meditation and breathing techniques to cope with stress. As a lawyer, Ms. Nurgitz understands the kind of stresses lawyers experience in their practices. She offered powerful advice and insights into how we can reduce our stress so that we feel better and are able to approach our practices in a calmer more balanced way.
For information on Toronto based workshops on training in Mindfullness Based Stress Reduction see http://mbsrtoronto.com/
Julia Evans - Click here for more information on Julia Evans.
On Day One of the13th Annual Estates and Trusts Summit, Ms. Hilary Laidlaw delivered an excellent presentation on solicitor’s conflicts of interest in an estates practice.
The lawyer and client relationship is, prima facie, a fiduciary one. As a fiduciary, the lawyer owes her client the duty of loyalty which demands that a lawyer never place herself in a position where her personal interests or the interests of another conflict, or may reasonably be seen to conflict, with the interest of her client. As Ms. Laidlaw explained, the notion of conflicts of interest, “cuts right to the heart of the legal profession”.
Ms. Laidlaw pointed out that estate lawyers practice in an environment that is “ripe for conflicts” as they often represent couples, families and multiple clients at once. In these circumstances, there is the possibility that while the clients may begin the retainer with their interests aligned, as time passes, their interests diverge and the lawyer finds herself in a conflict of interest position where she cannot provide advice to one client that is not adverse to the interests of the other. Rule 2 and its commentary in the Rules of Professional Conduct http://www.lsuc.on.ca/media/rpc_2.pdf, provide guidance to lawyers entering and exiting these awkward situations.
Estate lawyers are often providing advice to clients who are themselves in a fiduciary relationship. For example, a solicitor for an estate trustee provides legal advice to the estate trustee who in turn has a fiduciary obligation to act solely in the best interest of the beneficiaries of the estate. Ms. Laidlaw highlighted the possibility of a conflict arising for a lawyer where an estate trustee, in pursuit of her own personal interest, seeks excessive compensation and the lawyer struggles to advise her client of her right to compensation but also of the client’s duty to act in the best interests of the beneficiaries of the estate.
Finally, Ms. Laidlaw not only directed us to Supreme Court of Canada jurisprudence and the Rules of Professional Conduct for guidance, but referred us to the Canadian Bar Association Task Force on Conflict of Interest Toolkit. http://www.cba.org/CBA/groups/conflicts/toolkit.aspx
Julia Evans - Click here for more information on Julia Evans.
Listen to: Assortment of topics
This week on Hull on Estates and Succession planning, Ian discusses an assortment of topics.
Topics include:
If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.
Ian M. Hull – Click here for more information on Ian Hull.
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Testamentary freedom is a highly valued and deeply entrenched idea in our society and in the legal system that governs it. People are often surprised to learn, however, that as cherished a value as testamentary freedom may be, its expression is not unrestrained.
Testamentary freedom is limited by certain provisions in the Family Law Act R.S.O. 1990 and by dependant relief legislation set out in Part V of the Succession Law Reform Act, R.S.O. 1990. These statutes provide that married spouses and other dependants of a deceased may bring claims against the deceased’s estate to receive more substantial shares than they receive under the deceased’s will. http://www.e-laws.gov.on.ca/navigation?file=home&lang=en.
The common law doctrine of mutual wills, which recognizes the possibility that a surviving spouse may have a contractual obligation to refrain from modifying his or her will after the death of the first spouse, may also be considered a kind of restriction on testamentary freedom. http://www.hullandhull.com/Text-From-2007-Breakfast-Series-Presentations/oct-2007-wills.pdf, .
Although the testator clearly has a strong say, he or she does not have the absolute right to determine by his or her will who shall be the long term guardian for his minor children. Section 61 of the Children’s Law Reform Act R.S.O. 1990 provides that parents may appoint a guardian of their minor children in their wills for the ninety days following their death, after which time, a formal court application must be brought. Also, testators may express wishes as to what becomes of their remains after death which wishes, while clearly morally binding on an executor are not legally binding: it is the executor who has the right to determine the place and manner of burial http://www.hullandhull.com/Articles/nov_2009.pdf http://www.hullandhull.com/Articles/june_2008.pdf.
Whether grounded in statute, the common law or notions of property, there are many limits on testamentary freedom.
Julia Evans - Click here for more information on Julia Evans.
Listen to: Continuing Legal Education
This week on Hull on Estates and Succession Planning, Craig and Rick discuss upcoming Continuing Legal Education (CLE) programs over the next few months. Specifically, they discuss the upcoming annual Estates and Trusts Summit on November 17 – 18, 2010.
If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.
Craig R. Vander Zee – Click here for more information on Craig Vander Zee
Rick Bickhram – Click her for more information on Rick Bickhram.
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Drawing Wills is Personal Business
The October-November edition of the Canadian Bar Association’s National Magazine http://www.cba.org/CBA/National/Main/ contains an interesting article on the virtues and drawbacks of a virtual law office. While it provides some helpful suggestions, wills lawyers and estate litigators both may find the following quote in the article somewhat problematic:
“The Web is perfect for people filing information on simple documents such as wills and estate plans, which are then reviewed by a full time, fully-certified lawyer. Not having to have our people collect this information in person reduces our costs, providing savings that we can pass onto our online clients through set fees. Everybody wins.”
We are often reminded by our insurer, LawPRO, http://www.practicepro.ca/default.asp of the importance of comprehensive notes and memos detailing our personal meetings with our wills clients, both when receiving instructions and attending to execution. http://www.practicepro.ca/LAWPROMag/WillDraftingErrors.pdf. These notes record everything from instructions and information regarding unique and relevant family dynamics to important observations regarding the testamentary capacity of our clients and the possible presence of undue influence. They can provide evidence that is valuable in resolving disputes among beneficiaries and may be useful to deflect claims against the estates of our clients. Comprehensive notes often lend critical assistance to the court as it works to discern and respect a testator’s final expression of his freedom.
It is often only through personal meetings with our wills clients that some of the most difficult questions can be asked and answered and some of the most painful, yet important, disclosures can be made by our clients. Surprising and crucial information often emerges out of a personal conversation with our wills clients that a web form just might fail to capture.
Value may well be added and efficiencies gained where clients review and consider form documents on the web to provide general information to their lawyers concerning their wills. That said, in my view, one of the closing comments in the article that acknowledges that, “There are …complex legal matters that demand in-person consultation and support from lawyers, that should never be delegated to an online web form” surely must include the complex legal task of drafting a will.
Until tomorrow,
Julia M. Evans - Click here for more information on Julia Evans.
It’s not too late to register for the 13th Annual Estates and Trusts Summit on November 17th and 18th taking place at the Law Society of Upper Canada this week. This two day event is an important annual opportunity for solicitors and barristers to hear some of Canada’s top estates counsel and members of the judiciary speak on several essential topics in wills and estates law.
Day One of the Summit, November 17, 2010, tailored to enrich the solicitor’s practice, canvasses topics ranging from updates in family law and estate planning for disabled adults to new developments in life insurance, current tax issues and thorny conflicts unique to an estates practice.
Day Two, November 18, 2010, is packed with valuable discussions and insights into the top 10 cases of the year, equitable remedies, mediation, capacity issues and more.
Whether you are a sole practitioner drawing wills or part of a large estate litigation team, both days of the Summit promise tremendous value to you and your practice. The solicitor’s practice will only be enhanced by a deeper understanding of the law and how it is applied when a will hits the pavement and the estate litigator’s practice will certainly be enriched with a deeper understanding of the issues and law involved in estate planning.
Hope to see you there!
Julia M. Evans - Click here for more information on Julia Evans.
A successful mediation requires all of the parties to commit to the process. Earlier this week, I blogged on Elder Mediation which has evolved into a distinct practice area. But, practically speaking, how do we enhance the prospects for success of an Elder Mediation where the personal care of a vulnerable yet capable single parent is in dispute?
More often than not, when there is a dispute between siblings as to the care of a single parent suffering from early stage dementia, the parent is residing with one of the children. In the lead up to the mediation, the "custodial" child has ample opportunity, motivation, and temptation to spin his or her argument to the parent. While this may be inadvertent in some cases, there are clearly instances where there likely is conscious scheming to repeatedly remind the parent of supposed grievances that the parent ought to harbour against the "non-custodial" sibling. Even if this kind of brainwashing (for lack of a better word) does not occur, the non-custodial sibling will harbour suspicions. The mediator is then challenged to establish credibility in the face of an atmosphere of distrust.
Mediators and counsel alike are increasingly challenged by disputes where capacity is not technically in dispute yet there is nonetheless consensus of all concerned that an elderly parent is vulnerable and in need of assistance. The first challenge is getting the parent to attend the mediation with counsel. This is a significant hurdle in that it requires the surrendering of a degree of control over internal family disputes (historically the parent's responsibility) to a complete stranger. Assuming the parent attends the mediation, it may be critical that the parent is separately caucused from the children to provide every opportunity for a successful mediation. Not only does such separation alleviate any lack of trust in the process by the non-custodial sibling but it affords the mediator the opportunity to meaningfully engage the parent in a process that can (in fact) be very intimidating.
Have a great weekend!
David Morgan Smith - Click here for more information on David Smith.
Cognitive impairment is not always readily apparent. When a patient sees a doctor for an ailment of a non-cognitive nature, there is no certainty that the doctor will spend sufficient time with the patient to detect the need for a capacity assessment. Indeed, the evidentiary value of medical records in estate or capacity litigation may be considerably limited when the focus of the treating physician is not the brain. Moreover, if a visit is for a limited period of time, there simply may not be sufficient time for any meaningful assessment of capacity even if there were an issue.
A new screening test that takes just two minutes could detect as many as eight in ten cases of cognitive impairment, according to an article in the Archives of Internal Medicine. Current screening tests take a minimum of 10 to 15 minutes, and require the patient to write with pen and paper. Not only is this a problem for people who are hospitalized but it is greatly dependent upon the patient's degree of literacy in the English language.
The “Sweet Sixteen,” (as it is known) is a product of Harvard Medical School that involves 16 elements including questions on basic orientation, items to remember, and counting sequences forwards and backwards. Although similar to the MMSE, or Mini-Mental State Examination, it takes less time and is apparently just as effective at finding mild cognitive problems.
Interestingly, payment for annual cognitive screening of all Medicare patients is a provision of The Patient Protection and Affordable Care Act which President Obama signed into law last year.
David Morgan Smith - Click here for more information on David Smith.
Listen to: Service and Social Media
This week on Hull on Estates, Paul Trudelle and Sharon Davis discuss two articles that discuss service via social media.
The two articles they discuss are:
If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
Paul E. Trudelle – Click here for more information on Paul Trudelle.
Sharon Davis – Click here for more information on Sharon Davis.
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There is a common perception that the auction is a staple of any estate administration. Of course, this is far from the truth: in many estates, much of the contents of the estate residence are destined for the dumpster rather than the auction block.
But there is nothing more newsworthy then an unexpected windfall from an estate sale. Indeed, Antique Road Show has built an entire franchise around the concept of the $100,000 cuckoo clock in the attic. And "Finding Money You Didn't Know You Lost" (like a ten dollar bill inside a book) is no. 995 on 1000awesomethings.com .
The Associated Press recently ran a story about a rare Honus Wagner (a.k.a. "The Flying Dutchman") baseball card that was bequeathed to a Baltimore order of Roman Catholic nuns and sold at auction for $262,000 to a card shop owner. The proceeds will go to the order's ministries in more than 30 countries around the world.
The moral of the story is that any executor should not throw up his or her hands when faced with an attic full of "stuff". Like finding a needle in a haystack (or, better yet, panning for gold), careful scrutiny may reward the beneficiaries and the executor alike.
David Morgan Smith - Click here for more information on David Smith.
One of the most remarkable, relevant and topical areas of scientific enquiry has to do with the "plasticity" of the brain and the stunning potential of the brain to "rewire" itself to adapt to injury and stimuli. In his recent bestseller "The Brain that Changes Itself", U of T professor Norman Doige explores this phenomenon.
But just as the brain has the ability to change for the better, there is growing evidence to suggest that overexposure to the Internet risks turning us into "scattered and superficial thinkers."
In a recent article published in the Telegraph on-line entitled "How the Internet is Making us Stupid" (or see the Wall Street Journal's title for the same piece: "Does the Internet Make you Dumber?"), Nicholas Carr notes the extent to which surfing the net makes us shallow thinkers. Text studded with links, busy multimedia presentations, emails, and yes, even blogs (gasp!) all are less "embedded" in our subconscious then more traditional means of receiving information such as books and radio. If "multitasking" was the buzzword of the nineties, the corollary is that the advent of technological advances to assist us has, some argue, made us less productive.
Carr summarizes the scientific findings: "When we’re constantly distracted and interrupted, as we tend to be when looking at the screens of our computers and mobile phones, our brains can’t forge the strong and expansive neural connections that give distinctiveness and depth to our thinking."
Personally, I find none of this surprising. Similar observations no doubt accompanied the introduction of the television into western culture. The difference with the Internet is the all-pervasive extent to which it tempts us in place of the most basic activities of reading and writing which, historically, have given us the greatest opportunity for subconscious reflection. All things in moderation perhaps?
David Morgan Smith - Click here for more information on David Smith.
Estates practitioners are nearly unanimous in their praise of mediation as a process especially well suited to the emotional strain of estate, trust and capacity litigation. And as a sub-specialty of mediation, "elder mediation" is focused on helping families and caregivers (and their advisers) forge a consensus about elder care.
There is certainly a demand: The New York Times refers to a 2001 study published in Conflict Resolution Quarterly which found that "close to 40 percent of adult children caring for a parent described 'serious conflict' with a sibling, frequently the result of one sibling shouldering the bulk of caregiving responsibility."
Elder mediators may benefit from a skillset that goes beyond mediation training and experience to include such subjects as the physical and mental effects of aging and how to communicate effectively with the elderly. As was initially the case with "Elder Law", the United States is ahead of Canada in defining Elder Mediation as a distinct practice area. Elder Care Mediators in Fort Wayne, Ind., for example, has trained 80 elder mediators nationwide. The National Eldercare Mediation Network posts profiles of elder mediators in all 50 states. Another Web site, Mediate.com, also allows prospective clients to search elder mediators by state.
In Ontario, when personal care of an incapable senior is in issue, the best bet is to go with a mediator who has had experience mediating guardianship disputes and who appreciates the subtleties of the personal dynamics inherent in sibling relationships.
David M. Smith - Click here for more information on David Smith.
At 114 years old, the oldest woman, a title she held for a very short time since May 2, 2010, has passed away. Eugenie Blanchard, called “Sweets” by her friends, was known for her kindness. She passed away in St. Barts, a French island in the Carribean. Born the 16 of February 1896, Eugenie served as a nun from the age of 26 to 60. Much of her career was spent ministering on Curacao, an island just off the coast of Venezuela.
The BBC reports that Eugenie was born at a time when La Boheme was in its first season at the French opera, just after the invention of the x-ray machine, Felix Faure was the president of France and Alfred Dreyfus was still serving his unjust sentence on Devil's Island. With the changes she witnessed, I’m certain that Eugenie saw many exciting advances which I can’t even begin to fathom.
As a result of Eugenie’s death, Eunice G. Sanborn of Jacksonville, Texas, born on July 20, 1896 is now the world’s oldest person, according to the two organizations that monitor such status.
I hope we all remember to live life to its fullest, whether young, old or 114. Have a great weekend.
Nadia M. Harasymowycz- Click here for more information on Nadia Harasymowycz.
In the midst of an American media frenzy after the Democrats lost control of the House of Representatives, forcing the issue of universal health care back onto the proverbial chopping block, a special section produced by the Toronto Star’s Health Zone on organ donation addresses health issues in our own backyard.
Raising awareness of key issues relating to health concerns is a constant battle. This is likely due to the fact that many of the potential solutions depend on funding and donations which are more frequent if individuals are aware. I have had the good fortune of never having been personally having to deal with organ donation, and thus, when presented with information regarding the organ registry in Ontario, I was surprised at some of the information I discovered, namely that for some organs, Ontario does not have a central registry, leaving each transplant hospital to control its own list.
Guest Blogger Jennifer Hartman outlined some of the changes to the Ontario organ donation system earlier this year. The recent discussion in the Toronto Star expanded on the changes to the legislation and gives personal stories about being forced through the system which waiting for a donation and struggling to survive. The stories centre on a will to live and note that Toronto has one of the worst records for organ donation in the province. The Toronto Star has compiled this special section in an effort to raise awareness and increase the donor list. Whatever your perspective on organ donation, check out the feature in the Toronto Star, an informed decision is always better.
Until Tomorrow,
Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz.
Listen to: Transitions
This week on Hull on Estates and Succession Planning Ian and Suzana discuss transitions, both personal and professional. They examine transitions currently taking place; how they affect us and different approaches one can take.
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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The Law Commission of Ontario, the Canadian Centre for Elder Law and the Advocacy Centre for the Elderly hosted the 5th Canadian Conference on Elder Law on October 29 – 30, 2010. www.acelaw.ca
The stated goal of this year’s conference, which was held in Toronto, was to “promote contribution and access to a knowledge base regarding legal issues affecting older adults, with a view to reducing vulnerability, social isolation, and abuse” with the overarching theme of the conference being to develop an anti-ageist approach to the law.
The speakers touched on a wide range of topics, including aging, access to justice, the role of law schools in responding to Canada’s aging demographic, the challenges and opportunities of a shift to a rights-based approach to elder law and approaches to law reform that include older adults.
In light of the stated goal, several speakers opined that there should be direct consultation with stakeholders. Senior’s Activist, Bea Levis, for example, stressed that laws, policies and programs must be informed by the lived experiences of older adults if we wish them to be both fair and effective. I couldn’t agree more.
The Canadian Conference on Elder Law is one of the many ways that individuals from diverse backgrounds and professions are able to increase awareness regarding the issues facing older adults and develop strategies to advance the interests of this often vulnerable population.
If you are concerned about elder rights, there are several things you can do, one being to sign up for next year’s conference. I hope to see you there.
Thanks for reading!
Kathryn Pilkington - Click here for more information on Kathryn Pilkington.
In today’s blog I discuss the legal and bio-ethical questions that stem from contracts between surrogates and “commissioning” parents.
Experts in the field of assisted reproduction suggest that surrogacy arrangements are becoming more commonplace in Canada. While there are no hard and fast statistics to support this proposition, I have no trouble believing it. Larry Kahn, a Vancouver based lawyer who specializes in assisted-reproduction and adoption law, recently advised the National Post that he has arranged more than 35 surrogacy contracts in each of the past 3 years, up from barely 15 such contracts a decade ago.
The National Post article for which Larry Kahn was interviewed dealt with a B.C. couple who urged their surrogate to abort the foetus she was carrying after it was discovered that the foetus would likely be born with Down syndrome. The surrogate, in contrast, wanted to carry the foetus to term.
The surrogacy contract provided that the couple would be absolved from any responsibility for raising and/or providing for the child, should the surrogate carry the foetus to term in the circumstances.
The above scenario raises questions about both the ethicacy and enforceability of a surrogacy contract, including:
1) Should contract law apply to this sort of transaction? If so, are children been reduced to the status of widgets? Juliet Guichon of the University of Calgary opines that the rules of commerce should not apply to the creation of children because children, unlike widgets, can get hurt and, of course, they are not produced on an assembly line.
2) Should family law rules prevail such that the terms contained within a surrogacy agreement which provide that biological parents do not need to support their child in the circumstances described above be invalid?
3) What role, if any, should the government play? To what extent should the surrogacy contract be regulated by provincial law?
The Assisted Human Reproduction Act, 2004 S.C.,c.2 (“Act”) is federal legislation which was proclaimed, in part, on April 22, 2004. On April 22, 2004, all of the prohibitions (sections 5 through 9) came into force except section 8 which came into force on December 1, 2007. Section 6 deals with surrogacy and, in brief, provides that payment of compensation to a surrogate is a prohibited activity under the Act (reimbursement of expenses is currently permitted). The prohibitions related to surrogacy in the Act do not deal with the enforceability of surrogacy contracts because the validity, including civil enforceability, of a surrogacy agreement is a matter of provincial law.
To date, no surrogacy contract has been challenged in a Canadian court, but it may only be a matter of time and it will be interesting to see how a court grapples with this complex issue.
Have a great day!
Kathryn Pilkington -- Click here for more information on Kathryn Pilkington.
I thought I would start off this week’s blogs by discussing planned giving. Planned giving provides a mechanism for people to contribute to programs that they support. In this way, people are able to target their philanthropic efforts towards programs that they believe will improve communities. The book, The Art of Giving: Where the Soul Meets a Business Plan, captures this idea perfectly and I recommend it as a must read. The authors, Charles Bronfman and Jeffrey Solomon, recognize that giving is meaningful and personal. So, for example, individuals who love animals may decide to donate part of their estates to animal welfare organizations.
So how do you want to improve your community? What about willing your body to a “body farm”? This is 1 of the 10 suggestions made in a CNN Report written by Elizabeth Cohen entitled “Ten uses for your body after you die”.
The body farm, as it is known, is located in Knoxville, Tennessee and has 650 skeletons scattered over 2.5 acres so that anthropology students are able to study bodies in varying stages of decay for the purposes of learning about body identification and time of death analysis.
If your charitable inclination is to donate your body to the University of Tennessee Forensic Anthropology Center (aka the body farm) click here.
If you’re undecided, check out the Art of Giving. It’s a good place to start if you are considering providing for charitable donations in your will.
Thanks for reading!
Kathryn Pilkington - Click here for more information on Kathryn Pilkington.
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