Toronto Estate Law Blog : Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I can’t remember a time in my life when being conscious of society’s impact on the environment hasn’t been at the forefront of the media. Each generation considers the legacy they leave behind in a different way, and certainly, we can look back through history and dissect the choices of generations past and the impact those decisions have had on our environment.   With hindsight being what it is, criticism generally flows naturally.   A recent article I read made me contemplate the environmental impact of certain modern day choices.

The Toronto Star recently reported on a town in England that has decided to put to use wasted energy for the purpose of heating a community sports complex.   The town council voted to implement the strategy of using this wasted heat, currently released with no benefit to the town, to heat the complex and potentially save the town $26,000 a year.    It sounds like a great plan right? The only catch (which seems to be entirely dependant on your subjective view) is that the wasted heat being redirected for this purpose is generated by a nearby crematorium.

The councillor for the British town of Redditch, Carole Grandy, has noted that such efforts have been used in Scandinavia with success.   Ms. Grandy has indicated that by redirecting the wasted heat, the town will likely be able to maintain programs that otherwise would have been cut. The social benefits seem clear.

Whatever your opinion on whether the use of the wasted heat from the crematorium is appropriate, it doesn’t appear that this will be implemented on this side of the pond anytime soon. In order to do so, Daniel Reid, director of sales and marketing for Park Lawn Limited in Toronto, believes that public opinion would need to change to support this particular use of the wasted heat.   Based on a quick survey of my peers, I doubt that the public dissent for this choice is likely to change anytime soon. I suppose at some point, the cost savings and environmental benefit may win out, and any criticism will be left to future generations.  Only time will tell.

Until Tomorrow,

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Are you ready yet?! No – in a minute, just warm up the car…I’ll be there in minute…Hurry! You’re late!! Run!!! ...RUN!

That’s how it begins. Every day. “The GO Train Cardioblaster Dash”. Why? 

The National Post reported last year that Toronto commute times “ranked dead last” among 19 urban centres, including Los Angeles, London, Chicago and New York. Many of us who live in the GTA are faced with unpredictable, nerve shattering drives on major highways that could get us to our downtown Toronto offices in time for coffee - - or lunch – depending on the weather or - - depending on nothing at all. So, we choose the Dash.  

Once on board, after we find our breath and our heart rate returns to normal, we think to ourselves: 1 hour and 15 minutes each way, every day adds up to almost an entire month of 24 hours a day of riding the GO train every year! It is no wonder so many of us would like to be able to use our commute time as part of our work day.  

How can a lawyer work on client matters on the train? In addition to the ridiculous physics involved in balancing your daily caffeine between your knees while your laptop randomly connects and disconnects from the internet and the train lurches from side to side, we have an important duty to protect our client’s information as set out in our Rules of Professional Conduct. The train can be a crowded public space where confidential information should not be displayed on a laptop or blackberry where others may be able to view it. The Ontario Bar Association is offering a program in February that offers tips on protecting your client’s confidential information as it is handled in various electronic and mobile forms.  

Some lawyers have told me they use pseudonyms for clients’ names while they draft in public spaces. Others have recommended purchasing privacy screens for their laptops and mobile devices. Others have given up trying to work on files at all and have chosen to use their time to do other important things. Some catch up on much needed sleep and others just relax and let their taxed minds wander to healthier places. Interestingly, this last option may prove to be the best one. Research from the University of British Columbia tells us that daydreaming enhances our brain’s problem-solving functions such that, “The quantity and quality of brain activity (while daydreaming) suggests that people struggling to solve complicated problems might be better off switching to a simpler task and letting their mind wander.”

So, rather than worry about how to make every hour of your annual month long commute a billable one, maybe its best to just sit back, relax and watch the fields go by so that every hour is a more productive one.  

Thanks for reading!

Julia Evans - Click here for more information on Julia Evans.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Wills deal with the distribution of property after one has died and so a fundamental task of the Wills lawyer is to ascertain all the property owned by his client. J. D. Salinger (who died one year ago today) knew very well that his stories were his property. In a recent article in The Economist , he is reported as having expressed his outrage that a collection of his short stories were published without his authorization this way:  

'Some stories, my property, have been stolen…someone's appropriated them. It's an illicit act. It's unfair. Suppose you had a coat you liked and somebody went into your closet and stole it. That's how I feel.”

In a related article, another journalist explains that Salinger was so protective of his property rights in his writing that in his old age he brought a lawsuit against Mr. Colting, author of a “sequel” to Salinger’s famous work, Catcher in the Rye. The case has settled a year after Salinger’s death, but it was his representatives that fought the remainder of the battle for property rights on behalf of his estate.

For Wills lawyers, this story highlights the importance of obtaining instructions that deal with all types of property a deceased may leave behind on her death. It may be that lawyers drafting wills for writers or other artists should consult specialized intellectual property counsel. This is especially recommended where the likelihood of dispute among surviving family members is high or where the stakes make litigation more tempting. In this way, difficult valuation issues and distribution decisions may be better understood and family turmoil on the death of an artist may be reduced.

On a final note, the Toronto Star recently reported that the mysterious annual visitor to the grave of Edgar Allen Poe may too have died and so no longer will red roses and cognac be delivered to the memory of the great author by this secret soul.   If only he had set up a trust.

Thanks for reading.

Julia Evans - Click here for more information on Julia Evans.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 Listen: Why

This week on Hull on Estates and Succession Planning, Ian continues his discussion on the book Start with Why By Simon Sinek.  This book can be found in the Hull & Hull LLP Reading Center.  Ian discusses why one becomes an executor and what it means to be an executor. This is followed-up with his first three duties for an Estate Trustee.

1. Make proper funeral and burial arrangements.
2. Determine that the Will appointing the Executors is the last will and testament.
3. Make provisions for the immediate needs of any dependants.

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Worse than watching Sidney Crosby’s head hit  on New Year's Day, was watching Crosby’s attempt to right himself after the blow and skate off the ice. Dr. Wennberg, a University of Toronto concussion expert and NHLPA consultant, summed it thusly: “To see it was painfully obvious. The telling sign was when he tried to get up. Mr. Crosby’s right foot slipped behind him as he got back on his feet, and his mouth guard slipped out of his mouth – subtle signs that that the hit from Washington Capitals winger David Steckel jarred Mr. Crosby’s brain.” Diagnosis: Concussion.

The word concussion is derived from the latin concutere (“to shake violently”). By definition, a concussion is a traumatic closed-head brain injury caused by a blow to the head and resulting in a temporary loss of normal brain function. The old school of thought was that concussions were considered ‘minor head injuries’ because the effects were seemingly temporary, and indeed, most individuals who suffer from a mild concussion will have no long-term effects. There is increasing evidence, however, that some people who sustain a concussion, and an even larger proportion of those who sustain multiple concussions, will endure long-term consequences. In 2009, the NFL finally conceded that “It’s quite obvious from the medical research that’s been done that concussions can lead to long-term problems.” In fact, a study commissioned by the NFL found that former NFL players were being diagnosed with Alzheimer’s Disease at a rate 19 times greater than the background rate for their non-NFL peers (see last year’s blog by Rick Bickhram on dementia and the NFL).   Long-term neurological effects, which can be permanent, may include memory loss, poor concentration, impaired reasoning, seizures, and depression.  Still not convinced?  The February 2011 issue of National Geographic  includes a graphic photograph of brain deterioration due to repeated hits to the head.

For additional information on concussions, and to access resources on concussion prevention, please visit www.thinkfirst.ca , a national injury prevention charity founded by brain surgeon Dr. Charles H. Tator.

Jennifer Hartman, guest blogger

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Listen: Parental Support

This week on Hull on Estates, Paul Trudelle and Sharon Davis discuss filial responsibility or parental support. Specifically they talk about Sections 32 of the Family Law Act which discusses the obligation of a child to support a parent.

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Medical research has shown that regular physical exercise is effective in delaying the onset of dementia and Alzheimer’s disease.  Other studies have shown that people who continue to exercise not only their bodies but their minds may function better. Doing crosswords, playing board games and participating in leisure activities like dancing and playing musical instruments may reduce the risk of dementia.   

Getting one’s legal affairs in order can help prevent both crisis in the event of physical and mental incapacity and the unwelcome intervention of strangers in personal decision-making. By preparing Power of Attorney documents relating to both personal care and property, a person can express his wishes and advance care directives to loved ones. If people are open about the purpose and content of these kinds of documents, important discussions among family members may result that help clarify everyone’s expectations, abilities and needs. We have blogged several times on Powers of Attorney in a broad range of contexts. 

Taking simple, inexpensive steps to look after your body, your mind and your rights promises some protection for you and for your family in the event that dementia touches one of you.    

For more information on dementia or Alzheimer’s disease and the protection of the vulnerable people suffering from these illnesses, you could contact the Alzheimer’s Society of Canada,  the Advocacy Center for the Elderly and The Office of Public Guardian and Trustee. The Office of the Public Guardian and Trustee (OPGT) - Ministry of the Attorney General. Finally, there are several blogs and podcasts on our website that offer useful insights into many of the legal and social aspects of these illnesses.

Julia Evans - Click here for more information on Julia Evans

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Dementia and its devastating effects on its victims and their families has been a popular topic in the news recently:

·         On January 17, 2011, we learned of the tragic death of a woman in Toronto who succumbed to the frigid temperatures as she wandered a few blocks from her home in the middle of the night. The Toronto Star followed with this opinion piece shining light on the nature and scope of this disease and its impact on us all. 

·         In Southern California’s Press Enterprise, it was reported that the husband and children of soul icon, Etta James are in a court battle over the decision-making in respect of both her personal care and property since she has lost her capacity to make decisions in these areas of her life. .

·         Ron Reagan, son of Former President, Ronald Reagan, has written in his recent book that his father suffered the early stages of Alzheimer’s during the last few years of his presidency.

·         On January 22, 2011, the Toronto Star ran a full page story on the sadness the family of singer, Pauline Trudel, are enduring as her memory and capacity have been taken by disease. . 

We know that the elderly population is increasing in our society and that we are experiencing a significant incidence of dementia among our citizens. Developing more effective medication , continuing scientific research on dementia and enhancing public awareness of dementia and its effects on its victims, their families and society are all part of our societal, public defence against this significant threat to so many of us and our loved ones. Individuals, however, can take simple, immediate steps now to help protect themselves or their loved ones from experiencing at least some of the painful effects that dementia could otherwise have on their lives should they find themselves within its grasp and tomorrow, I will discuss what those steps might include.

Thank you for reading.

Julia Evans - Click here for more information on Julia Evans.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The cover story in the year-end edition of The Economist was entitled: "The U-Bend of Life:  why, beyond middle age, people get happier as they get older."   Personally, I was more captivated by the abbreviated title: "Why Life Begins at 46."  Ever hopeful, I snatched up a copy!

Very simply, the thesis is that the bottom of the "U" is the well-known phenomenon of the midlife crisis and that, after working through their acceptance that dreams will likely not be fulfilled, people become happier.  Ironically, the explanations for this phenomenon range from the downright depressing ("unhappy people die early") to the somewhat less depressing ("because the old know they are closer to death...they grow better at living for the present").  As noted by the author, such studies of happiness have given rise to such policy initiatives as Bhutan's Gross National Happiness ("GNH") assessment.   

The U-Bend Thesis is an enticing prospect for those of us in their mid-forties who have heretofore preferred denial to getting older. And, in closing, it seems fitting to repeat a famous quote attributed to Maurice Chevalier that appears in the article: "Old age isn't so bad when you consider the alternative."

Have a great weekend.

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Listen: Breakfast Series

This week on Hull on Estates, Nadia Harasymowycz and Craig Vander Zee discuss the Hull and Hull LLP breakfast series that was held on January 13, 2010. This breakfast series was accredited by the Law Society for professionalism requirements and continuing professionalism.

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

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

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Apart from the moral obligation to benefit family discussed in yesterday's blog, a testator may feel an ethical obligation to benefit charity.  This is another way of leaving a legacy.  If the testator performed volunteer work for a specific charity, a testamentary bequest can be seen as a natural extension of a lifetime commitment to a cause. 

Of course, the groundwork for a legacy may be laid outside of the testamentary context.  For example, consider the inter vivos donations made by Michael DeGroote to McMaster University leaving a legacy not only of financial support but by the naming of McMaster's business and medical schools in recognition of Mr. DeGroote's generosity.

Testators who were generous to charities in their lifetime often will similarly wish to benefit those same charities in their Wills. Indeed, a charitable bequest in a Will to a charity to which the testator had a history of donating is useful evidence in support of the validity of a Will.  Conversely, a significant charitable bequest to an entity entirely unknown to the testator may (in certain circumstances) raise a red flag. 

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Moral and legal obligations overlap when the Legislature or the Courts make laws respecting the governance of family relationships.  For example, science tells us that we have a moral obligation to care for our minor children hardwired into our DNA.  And the common law has clearly defined the fiduciary duty that overlays this moral obligation.

Conversely, at the other end of our life, the reciprocal duties between parents and their adult children are not always as clear cut.  As my colleague Natalia Angelini pointed out in a recent blog, the Courts in British Columbia have applied the applicable provincial statute to legally enforce a parent's moral obligation to provide a fair share of his or her estate to their adult children.  In Ontario, where there is not the same statutory authority, the Court of Appeal has nonetheless observed the existence of moral obligations that exist between parents and children. 

While, in Ontario, the legal enforcement of the moral obligation to provide support to adult children from one's estate appears to first require dependency, the situation is less clear where parents are in need of support from their adult children. This may be a developing area of law for the family law bar.  More than one commentator has predicted an increase in the seldom used provision of the Family Law Act mandating adult children to support their parents as the demographic shift to a more aged population continues.

On a closing note it is interesting to note that China is considering imposing a legal obligation on adult children to visit their aged parents. As reported by CNN: "A draft amendment to China's 'Elderly Law' requiring the children of elderly Chinese to visit home more often is being considered by the government. If passed, it would require children to care for their parents' “spiritual needs and cannot neglect or isolate them.”

David M. Smith - Click here for David Smith.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Listen: Year of 2011

This week on Hull on Estate and Succession Planning, Ian discusses the year of 2011. Specifically, he discusses the book Start with WHY by Simon Sinek, which can also be found in the Hull & Hull LLP Reading Center. Ian examines the question of why in regards to estate planning issues and contentious planning matters.

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The term "legacy" has expanded beyond its traditional meaning.  Historically, a legacy fit squarely within its definition as found in Black's Law Dictionary:  "a disposition of personalty by will.  A bequest." 

Of interest to the estates bar is a limitation period respecting claims to recover an unpaid legacy.  If a beneficiary is advised of the terms of a Will which names him or her as a legatee of a particular sum, a ten year limitation period from the date of death applies to any claim for an unpaid legacy. Interestingly, this limitation period is a very old provision that first appeared in English statute and has survived in Ontario as s. 23 of the Real Property Limitations Act, R.S.O.1990, c. L.15.

But beyond its bare legal meaning, there has, in recent times, been considerable commentary  and reflection on the cosmic (for lack of a better term) meaning of "legacy" and what it is that testators seek to accomplish when creating an estate plan.  The discussion of the meaning of a legacy reflects how we view the meaning of our lives and how we can maximize the impact of the footprint (i.e. legacy) that we leave behind. This may explain the prevalence of the term in websites such as Legacy.com (an obituary site) and Legacyfamilytree.com (genealogy software)

Such an approach to will-making will presumably translate into good news for charitable causes. The motivation need not be about leaving a legacy so much as feeling good about one's estate plan. According to an online article at CNN.com , a 2008 study in Science found that people were happier spending $20 on others than they were on themselves. In general, research supports the idea that people feel good when they feel they are making an impact with their money in a personal way.

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It is no secret that the legal profession has a challenge convincing the general public that every adult should make a Will.  It is estimated that only 21 percent of Canadian adults under the age of 35 have a Will.  

But once a Will is made, it may also be a challenge to ensure that wills (and estate plans generally) remain up to date.  Lawyers commonly will advise their clients to review their estate plan at least every five years unless there has been an intervening event (such as a birth, death, divorce, sale of an asset, or change in the law) that may impact the terms of a Will. Often, however, the impact of such an event on one's estate plan is given little immediate thought, particularly if the testator is relatively young.

As a cautionary tale, consider the tragic death of Mark Madoff, (son of disgraced financier Bernie Madoff) who committed suicide on December 11, 2010.  Mark Madoff, 46, did not amend his will  after his father’s downfall. Mark Madoff named his father as co-executor of his estate, but because Bernie Madoff cannot serve as executor, the sole remaining executor is Andrew Madoff, Mark Madoff’s brother.  Not only did Mark Madoff not change his executor; a trust created for his children was never amended to include his 2-year-old son, Nicholas, born after the Will was made. 

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Lawyers called to the Bar in one province who want to practise in another province in Canada can now generally do so with ease, thanks to a series of agreements reached among the provincial law societies. They are:

• The National Mobility Agreement
• The Territorial Mobility Agreement
• The Quebec Mobility Agreement

With the adoption of these three agreements, there are now avenues available for lawyers to work permanently in all provinces and territories, and temporarily in all provinces.

Lawyers who:

• are entitled to practise in a signatory jurisdiction that has implemented the National Mobility Agreement;
• have liability insurance and defalcation coverage; and
• have no outstanding criminal or disciplinary proceedings, no discipline record, and no restrictions or limitations on the right to practice, may provide legal services in or with respect to the law of a reciprocating jurisdiction for up to 100 days in a calendar year, without a permit. They do not have to advise the host law society that they are providing legal services on a temporary basis in or with respect to the law of that jurisdiction.

If a lawyer establishes an "economic nexus" with a jurisdiction he or she becomes ineligible for temporary mobility, but may apply to transfer to the jurisdiction (Permanent Mobility). An economic nexus is established when the lawyer does anything inconsistent with temporary mobility, including:

• Providing legal services for more than 100 days;
• Opening an office from which to serve the public;
• Opening and operating a trust account; and
• Becoming a resident in the jurisdiction.

Lawyers interested in exercising temporary or permanent mobility should communicate with the law society of the province or territory for complete information. The contact information for the law societies is available here.

Have a great weekend,

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Within hours of the unconscionable shooting of Democratic Congresswoman Gabrielle Giffords, the discussion turned to Giffords’ prognosis. The phrase ‘cautiously optimistic’ smattered the evening newscasts. In Giffords’ favour is a wealth of research indicating that undamaged areas of the brain can compensate for damage to brain areas that control language, movement, and even memory and attention.

The brain’s plasticity, also known as ‘neuroplasticity’, refers to the brain’s malleability, or ability to adapt in response to new experiences. The concept of neuroplasticity is relatively new; just a few decades ago, scientists believed that the brain was hardwired, and thus ‘fixed’. The times they are a-changing, and indeed, on February 26, 2010, ‘plasticity’ was knighted Word of The Day by the New York Times.

Neuroplasticity has applications in a number of facets of neurological inquiry.  For example, plasticity is relevant to stroke recovery and rehabilitation. Plasticity is also the cornerstone of studies that suggest that healthy aging (stimulating social interactions, regular exercise, and a healthy diet) can one day defend against Alzheimer’s Disease. The success of a cochlear implant is dependent on some degree of neural plasticity. When a child suffering from intractable seizures undergoes a hemispherectomy to remove half or a portion of half of the damaged side of their brain that is contributing to the seizure activity, plasticity allows the remaining brain to take over some of the functions of the lost hemisphere.

If your interest is piqued, here are some on-point links:

•  January 3, 2011 Newsweek article: Can You Build a Better Brain?
•  Oliver Sacks’ latest book: The Mind’s Eye (released October 26, 2010)
•  September 30, 2010 episode of CBC’s The Current: an interview with neuroplasticity pioneer Norman Doidge, M.D.
•  November 28, 2008 episode of CBC’s The Nature of Things: The Brain That Changes Itself
•  January 19, 2007 issue of TIME magazine: How the Brain Rewires Itself

Jennifer Hartman, guest blogger
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Just one month after I blogged about a B.C. Supreme Court Judge who varied a father’s Will to undo the exclusion of his four daughters in favour of his only son, another B.C. Court judge has reportedly varied the Will of a deceased mother, Mrs. Lougheed, to give her daughter, Kelly, an additional $5.5-million despite the objections of the father.

The award is one of the largest dependant's relief orders ever made in B.C.  In the decision, the court reviewed in detail the privileged life of the family, and found the daughter enjoyed “a harmonious and loving relationship from the time of [her] birth until [her mother’s] death. There were no strong disagreements or even riffs between mother and daughter, much less periods of acrimony or estrangement. Their bond was natural and deep.”

As the will did not reflect the close relationship of mother and daughter (the bulk of the mother's $20-million estate was given to her spouse), the Judge found that “...the testamentary provision made for Kelly under the 1989 Will falls below the moral obligation of a contemporary judicious parent in all of the objectively assessed circumstances.”  The judge concluded that it was incumbent on the court to exercise its discretion to vary the Will “to provide the justice to Kelly that the 1989 Will failed to achieve, commensurate with [Ms. Lougheed’s] moral obligation.”

If this decision signals the developing and broadening view of the bench in B.C., we may start to see a whole new wave of dependant support claims brought not on the ground of actual financial support but on the ground of moral obligation.  I wonder...will this "moral obligation" foundation for a claim now become an easier method in which to upset a testator's bequests than bringing a Will challenge or other type of claim? Is fairness trumping testamentary intention? Will this ultimately dissuade people from making Wills when more and more often wishes expressed therein are not carried out? 

As I noted in my earlier blog, the B.C. legislation is unique in Canada.  While a general trend developing in Ontario is to consider moral obligations (see Tataryn and Cummings), this is treated as but one factor to consider in the context of support claims.   So I think it is unlikely that we will see this kind of award made outside of B.C. anytime soon.  Time will tell I suppose... 

Have a good day,

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Mediation is a large part of an estates practice, particularly in Toronto where it is mandatory. It is a critical process that often leads to faster and more cost-effective resolutions than trial litigation.   Finding the right mediator, who is also available to mediate when you need it to happen, is not always easy. Different cases call for different types of mediators. 

The particular dynamic of a dispute may, on occasion, make it advisable for counsel to seek a sitting judge as a mediator.  This approach is somewhat unconventional as it is almost always the case that lawyers, certified mediators or retired judges are selected to mediate a case.

In an interesting article by The Honourable Warren K. Winkler in the Winter 2010 issue of The Advocates' Journal , His Honour touches on the movement towards mediation in the civil justice system over the years, the arguments for and against judicial mediation, and the difficulty of judicial mediation being both a reality and fantasy in Ontario (this is a good read). On this last point, His Honour notes the fact that while judicial mediation exists, its availability is complicated by several things, including lack of court facilities to hold mediations, difficulties with timetabling and, most importantly, judges who do not want to work in the “too unfamiliar and informal” mediation environment.

Winkler J.’s view is that judicial mediation should be expanded to meet the pressing demand within the civil justice system, and the court system ought to adapt to allow it.  I, for one, would be very pleased to see this happen.

Have a good day,

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Elizabeth Edwards sadly passed away last month at the age of 61 after her battle with breast cancer.

It has been reported that she made a new will shortly before her death.  Apparently,  the new Will dated December 1, 2010 divides her assets among her three living children and appoints her eldest, Catherine, as executor.   

The Will also apparently names Catharine as guardian for her younger brother and sister. Whether Catherine will ultimately take on this role is an open question. In Ontario, a guardianship appointment by Will expires after 90 days from date of death, unless the named guardian applies within that time-frame to the Court to be appointed.

Notably missing from the Will (although perhaps not surprisingly) is estranged husband John Edwards, a U.S. vice presidential and presidential candidate. The couple separated in early 2010, after John finally admitted to fathering a child during an affair. Edwards’ memoir, Resilience, recounts her humiliation over John’s affair.

Elizabeth Edwards was first diagnosed with breast cancer in 2004, in the midst of the election campaign of that year. The cancer returned in March 2007, during John Edwards’ run for a presidential nomination. Her first memoir, Saving Graces, was about how friends and strangers helped her through her life, including her struggle with cancer treatment and the death of a son.

Elizabeth Edwards was touchingly buried beside her son, Wade, who died at age 16 in a car accident.

Thanks for reading,

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Today’s blog is a reminder that Hull and Hull LLP has another of its Breakfast Series on January 13, 2011. The Breakfast Series provides members of the bar with presentations on topics of importance to estate practitioners.

At the January 13^th Breakfast Series, Ian Hull will present on “Protecting as Estate from Unjust Enrichment Claims ” while Rick Bickhram will present on “Guardianship – What Is It and What Is Required” and I will present on “A Review of Recent Trust Case Law ”.

The program is being held at the Ontario Bar Association, 2^nd Floor, 20 Toronto Street, Salon 2 & 3, Toronto, Ontario. Breakfast begins at 8:15 a.m. with the Presentations starting at 8:30 a.m. A fee of $30.00 ($26.55 + $3.45 HST) is payable to Hull & Hull LLP upon registration by cheque, VISA or MasterCard. Materials are included. This seminar will also be offered via Webcast.

A CD or Cassette Tape recording of the Breakfast Seminar will be available at a fee of $20.00 ($17.70 + $2.30 HST).

To register, please contact Diane Labao at (416) 369-1140 (press 0) or by email to dlabao@hullandhull.com.

See you there.

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In the grey zone between benign forgetfulness associated with normal, healthy aging and the memory loss associated with Alzheimer’s Disease (AD), lies an intermediary condition known as mild cognitive impairment, or MCI. A person with MCI will experience greater memory problems than would be expected for his or her age and education, but would not suffer from the pronounced personality changes or cognitive problems (e.g. in the domains of learning, reasoning, decision-making) that characterize Alzheimer’s Disease, and would have ‘no significant daily functional disability’. According to Baycrest, individuals diagnosed with MCI have a 50% risk of developing AD within 5 years.

Since the introduction of the term MCI, two key questions have arisen:
i) How should MCI be diagnosed?
ii) Can we predict which individuals with MCI will go on to develop AD?

Clinical Diagnosis
The mechanisms by which MCI is diagnosed vary widely. Some physicians use the same diagnostic tests as those for diagnosing dementia; i.e. history-taking, physical examination, brief cognitive testing and possibly lab tests to rule out other reversible causes of memory loss. These tests are sometimes supplemented with imaging tools such as PET scans, CT scans and the MRI. In terms of cognitive screening tools, the Mini-Mental Status Examination has been shown to have low sensitivity to detect MCI while in contrast, the Montreal Cognitive Assessment has high sensitivity to detect MCI.

Risk of Progression
Research has demonstrated that there are measurable changes in people suffering from Alzheimer’s Disease many years before symptoms appear. Recent strides have been made in testing for these early changes, which include loss of brain volume and a reduction of a protein called amyloid in the cerebrospinal fluid.

It is estimated that 8% of Canadians over the age of 65 have dementia.

Jennifer Hartman, guest blogger

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 Listen to: Subset of a Dependent Support Claim

This week on Hull on Estates, Nadia Harasymowycz and David Smith discuss the subset of a dependent support claim, which is a claim that is advanced by an estranged spouse. For more information on this topic, please see the article in the December issue of The Probater entitled “When is Dependant’s Support Paid to an Estranged Spouse?” by David Smith.

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

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

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I hope everyone had great holiday season.

With the close of 2010, we turn and look to the promise of 2011. In looking ahead to 2011 many may wonder if they have properly protected and provided for those they intend to protect should something unexpected happen to them. Questions may also arise regarding whether a spouse or parent has taken steps to provide for themselves and/or those they intend to provide for.

While there are no doubt many things to consider for the new year from a family perspective, perhaps this is the year to resolve to consider, or reconsider, whether your family’s legal affairs have been properly planned.

I wish everyone a healthy, happy and prosperous 2011.

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