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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There is a big difference between a profession and a business – or is there? Traditionally, lawyers have been taught to believe that law is a profession, not a business. The majority of us do what we do (partly or only) because we want to help people, to make a difference. 

I heard exactly this at the recent tribute to the life of one of Ontario’s more extraordinary lawyers, Laura Louise Legge, held by the Law Society of Upper Canada. Mrs. Legge, who passed away on October 5, 2010, was LSUC’s first female bencher and first female treasurer. Mrs. Legge was a brilliant woman loved and respected by all who knew her. Those who spoke recounted the story of her amazing personal and professional accomplishments. Her rich life was marked by generosity and appreciation of the needs of others. 

If, as Mrs. Legge has been heard to say, you don’t get into law to make money, but to help others, then how do we reconcile this with the need to be profitable enough to keep your doors open to those who need you? In recent (precarious) economic times we have learned that you cannot practice your profession unless you effectively run your business. The practice of law is just not the same as it was in 1948, when Mrs. Legge was called to the bar, or even 1983, when she first became treasurer of LSUC. We now live in the competitive internet age where not only access to information, but access to a wide variety of professionals, is just a click away. 

Of course, all of this begs the question of whether one can make a success of oneself while putting others’ needs and interests ahead of their own. I suggest that not only can it be done, it must be done if one is to achieve extraordinary success of the kind achieved by Mrs. Legge. In fact, it is the first of the five laws of stratospheric success. Tomorrow, I will discuss these five laws and the theory behind them as related to success in law. I’ll bet that you are just a little bit curious…..

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

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As I sit here thinking about what junk food I'm going to indulge in today, Fat Friday, I fully realize that it is probably not the greatest idea. On top of the obvious reality that I will be feeding both of my longstanding sugar and salt addictions, I can appreciate that making this a habit will likely not help extend my life-expectancy.

I normally wouldn't let such thoughts creep in on a Friday, except for the fascinating article I just read on the quest for longer life. This is just a bit of what I learned (some of it new to me, some not so new):

·                    Extreme longevity is determined largely by genes - that includes a long life span, as well as a long "health span". Noteably, the research has apparently revealed that of the centenarians studied none of them exercised regularly, almost 30% were two-pack-a-day smokers, and 30% were overweight or obese back in the 1950s (a time when this was not that common). Fat Friday here I come!

·                    That said, the most important observation in life-extension research was reportedly first made in 1935 - that feeding rats just barely enough to stay alive extended their life span by 50%. Since then, calorie restriction on health and longevity has been shown to hold true for more than just rats. Among other things, it also reportedly prevents heart disease, cancer, diabetes, Parkinson's and Alzheimer's. It may also preserve intellectual function in rodents.

According to the article, researchers cannot tell whether calorie restriction extends human life, but they are trying to see if it improves the biomarkers of health status. Even if true, I certainly don't think I have the desire to subject myself to a regimen of barest of nutritional necessities (and we all know the serious risks of taking this lifestyle to the extreme). So while it isn't probably the best idea I've had this week, I think I may not toss my Fat Friday feast ritual out the window just yet....hey, my genes may dictate how long I last anyway!

Have a great weekend!

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

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I could not help but be terribly saddened to learn of a battle reportedly underway between parents of a terminally ill boy and a London, Ontario hospital over whether his ventilator ought to be removed.

The parents want to get their 13 month old son a tracheotomy so they can take him home, so he can live his last few months with those who love him (the same thing they were able to do for their daughter who was tragically afflicted with a similar neurological condition nine years earlier).

A court Order requiring the father to give consent to removal of the breathing tube by Monday morning was rendered last week. The Judge was upholding a decision of the Consent and Capacity Board. No doubt this is a very sensitive and difficult issue to adjudicate, and I can imagine it was not made lightly. 

The parents have reportedly not complied with the Order.  As the London hospital could not get consent to remove the breathing tube from the infant’s parents or other family members, it may seek consent from the Office of the Public Guardian and Trustee.

Alex Schadenberg, executive director of the Euthanasia Prevention Coalition, apparently questioned why doctors, not parents, should have the final say over their baby’s care. It is a tough question to ask, but this kind of case may require us all to look closer at it.

Thanks for reading,

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

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Moneyville is launching a series online all week examining the financial considerations and logistics involved in organizing a funeral. Some noteworthy statistics I picked up from Moneyville’s Sunday posting are:

· there were a little over 88,000 registered deaths in Ontario 2009;

· slightly more than half of the funerals involved cremation, with the rest being burials; and

· pre-paying is common practice – apparently as of 2009, 230,814 people in Ontario had pre-paid funeral contracts purchased.

Pre-payment and pre-planning was addressed in further detail. From this discussion I gathered that:

· there are a variety of payment methods e.g. out of pocket, setting up direct withdrawals from a trust account over time or buying insurance and paying from the policy proceeds;

·expenses one is faced with will be impacted by several choices that need to be made about the funeral facilities, vehicles, the casket/vault or urn, the choice of final resting place (grave, crypt etc.), what sort of monument or memorialization you want, and fees for the cemetery/crematorium, religious service, newspaper announcements etc;

·    pre-planning is promoted as it ensures the majority of the costs are paid for up front:

· under a guaranteed contract, if there are insufficient funds to cover the services arranged in advance no additional money will be owed at the time of your death (except possibly taxes), provided the terms of payment have been met; if there is money left over the balance is paid to your estate;

·  under a non-guaranteed contract, if there are insufficient funds for the funeral the shortfall will need to be paid from your estate assets;

·  you can cancel a pre-arranged contract at any time before the services or supplies have been rendered and the provider must refund your money; and

·   while pre-planning helps alleviate stress on loved ones, service providers suggest that to avoid disappointment you should leave some things for your family to decide.

On this last point, while I can appreciate the need for family to feel part of the process, they may not always agree. My cautionary note is to keep in mind that your estate administrator has the final say...so choose wisely.

Thanks for reading,

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

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The core issue in a very interesting cy-près appeal decision of Bentley v. Anglican Synod of the Diocese of New Westminster was succinctly put as testing "the ability of the members of four Anglican parishes to remove themselves from a diocese of the Anglican Church of Canada (“ACC”) and from the oversight of their Bishop, while at the same time continuing to use the church buildings and related assets of their parishes for Anglican worship.”

What sparked the move was that the General Synod of the ACC pronounced that same-sex blessings were not in conflict with the core doctrine of the ACC.   As such blessings were not adopted by many ACC dioceses or the Anglican community, this created an unprecedented and deep divide.  

The dissenting group applied to the Court for an order for possession and control of church properties and for a cy-près scheme. They contended that the properties were held on an implied religious purpose trust, and that as such purpose could not now be carried out a cy-près scheme was needed. The defendants argued that the dissenters were free to leave the Anglican Church, but without any rights to parish properties. The Court dismissed the main action (I will not address the second action), but declared invalid the Bishop’s purported removal of certain parish trustees. 

On appeal, the Court noted that there was little authority to support the notion that internal disagreement on a doctrinal issue can support a cy-près claim - one could not say that it had become impracticable to carry out the purposes of the charity.

The Court of Appeal concluded that the trial judge did not err in declining to grant a cy-près order in the main action. It rested its conclusion on the basis that the purpose of the trusts is to further Anglican ministry in accordance with Anglican doctrine, and that the General Synod has the final word on such matters.   The Appellants could not remove themselves from their Bishop’s oversight and the diocesan structure and retain the right to use properties held for purposes of Anglican ministry. 

The Court indicated that this was a very difficult decision made “after much anxious reflection”. I can only imagine how much harder it would have been if it had been asked to wade into and adjudicate upon the doctrinal issues that divide these litigants!

Have a great day,

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

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I thought I would end the week by tying a few events from the past week together. Of course, Monday was St. Valentine’s Day (I hope you didn’t forget), and on Tuesday, I blogged on the odds of dying from certain causes.

A story reported on by KTLA in California seems to tie these two diverse topics together.

According to the story, an 18 year old Welsh woman shared a first kiss with her boyfriend. Moments later, she collapsed and died. Although the exact cause of her death is not known, it is believed that she suffered from a hidden heart rhythm disease brought on by Sudden Arrhythmia Death Syndrome (“SADS”). 

According to the SADS Foundation, each month in the United States, between 250 and 600 young people die suddenly and unexpectedly due to cardiac arrhythmias. As many as 12 in every 5,000 young people may have one of the conditions that can cause sudden cardiac death. Most sudden cardiac deaths are due to hereditary conditions. Most cardiac arrhythmias and structural defects that may cause sudden death are identifiable and treatable.

As with most conditions such as this, education goes a long way towards saving lives. Please visit the Canadian SADS Foundation for details of the warning signs, and other information. 

Do it for someone you love.

Have a great Family Day weekend.

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

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Previously, I podcasted with Sharon Davis on the topic of courts authorizing service via social media. The courts appear to be, to a certain extent, embracing the electronic media, and bringing the administration of the courts into the 21^st century.

I recently came across the decision in Meaford v. Grist, 2011 ONSC 895 (CanLII) which provides further evidence that the courts are opening up their processes to adopt modern technologies.

There, the matter involved several hundred parties. In the course of submissions, it was suggested that a website be established to facilitate service of materials for use on various pending motions. The court accepted this suggestion, and ordered that service of any subsequent materials may be effected by the electronic downloading and posting of such materials in accordance with the protocol of the law firm establishing the website. The parties and the judge are to be advised of the website and the protocol, with instructions as to how to access the site and how to download and post materials relating to the pending motions.

Unfortunately, paper copies any documents must continue to be filed with the court, with appropriate proof of service.

As noted by Brown J. in Pershadsingh v. Thompson, 2010 ONSC 4932 (CanLII), it is time for the court to establish a system for the electronic filing of court documents, for the convenience of the parties and judges. In that decision, Brown J. noted that the words of the Constitution are not frozen in their 1867 sense, but must receive a progressive interpretation to address the realities of modern life. “So, too, the provincial obligation to maintain courts is not frozen at the level of support that existed at Confederation”. Brown J. laments that other than replacing ribbon-tied bundles of papers for cirlox-bound bundles of paper, and other minor changes, the document and file management systems maintained by the Courts have not really changed much since 1867.

As seen in Meaford v. Grist, the tide may be shifting, albeit slightly and slowly.

Thank you for reading.

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

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Albert Einstein died in 1955. In his will, he bequeathed the literary rights for the more than 75,000 papers and other items in his estate to the Hebrew University in Jerusalem. Since his death, this is said to have generated millions of dollars, mostly through the marketing of videos, bobblehead dolls and Halloween masks.

Recently, as reported by CNN, Einstein’s granddaughter, Evelyn, has cried foul. She states that she has not received anything from the marketing and sale of Einstein merchandise. She asks what Einstein’s image has to do with the bequest of his literary estate. On a sentimental note, she states that she is 69, and a cancer survivor who needs the money for health care.

The University takes the position that the bequest of Einstein’s intellectual property includes the rights to the use of his image. It counters the granddaughter’s emotional plea with a statement to the effect that the income from Einstein’s estate is dedicated to scientific research.

It is not apparent as to whether any legal claim has been commenced by Evelyn.

As an aside, in 2002, Evelyn wrote an introduction to “Dear Professor Einstein: Albert Einstein’s letters to and from children”. In her introduction, she states that Einstein died when she was 14, and that she had little contact with him, although she exchanged correspondence with him.

As a further aside, Einstein’s brain was removed upon his death for scientific purposes. Controversy and questions surround this episode of Einstein’s estate, as well. In a 1994 documentary, Einstein’s Brain, film maker Kevin Hull depicts an encounter with Einstein’s granddaughter by adoption, Evelyn Einstein, who believes that she is biologically related to Einstein and who has been in dialogue with an institute to compare her DNA to that of Einstein’s brain. A book by Michael Paterniti, Driving Mr. Albert: a Trip Across America with Einstein’s Brain is a further account of the author driving across the US with the brain and the brain’s supposed keeper, Dr. Thomas Harvey, to deliver the brain to Evelyn Einstein.

Thank you for reading.

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

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Listen: Institute

This week on Hull on Estates and Succession Planning, Natalia Angelini and Nadia Harasymowycz discuss a recent Institute, Brave New World: Building a Thriving Trusts & Estates Practice in the 21st Century, which was held on Thursday February 3, 2011.

There were variety of topics at the Institute, including:

· Planning for Disabled Beneficiaries: How Recent Legislative Amendments have Changed Estate Planning

Nimali D. Gamage, Jan Goddard & Associates

· The Role of Social Media in Marketing an Estates and Trusts Practice

Suzana Popovic-Montag, Hull & Hull LLP

Terry Fallis, Thornley Fallis Communications

· The Impact of Divorce, Remarriage and Common Law Relationships on Estate Planning
Daniel S. Melamed, Torkin Manes LLP

· The Legacy of Hare versus Hare:Limitation Periods and Promissory Notes
Ed Esposto, Blaney McMurtry LLP

·         Damages for Mismanaging Trust Investments
Sean Lawler,Shibley Righton LLP

· The Role of Collaborative Law in Resolving Estate Disputes
Clare E. Burns, WeirFoulds LLP

· Recent Cost Decisions in Estate Litigation
Justin de Vries, de Vries Litigation
Kimberly A. Whaley, Whaley Estate Litigation
Jane E. Martin, Eisen Graham

For more information on New World: Building a Thriving Trusts & Estates Practice in the 21st Century, please click here.

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

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

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

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Listen: Understanding the Role of an Executor

This week on Hull on Estates, Ian Hull discusses the role of an executor and how you can anticipate problems that may arise.

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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As noted in a recent article in the Huffington Post, your chances of dying are one in one. However, WHAT you will die from is not so certain.

The article in the Huffington Post, by Dean Praetorius, reports, in pictorial form no less, on the 2010 edition of “Injury Facts”, published by the National Safety Council, out of the U.S. The National Safety Council report provides the lifetime odds of death for selected causes of death for the U.S. in 2006. These odds are as follows:

Heart disease: 1 in 6
Cancer: 1 in 7
Stroke: 1 in 28
Motor vehicle accidents: 1 in 85
Intentional self harm: 1 in 115
Accidental poisoning/noxious substances: 1 in 139
Falls: 1 in 184
Car occupant: 1 in 272
Assault by firearms: 1 in 300
Pedestrian: 1 in 623
Motorcycle rider: 1 in 802
Accidental drowning: 1 in 1,073
Exposure to smoke, fire: 1 in 1,235
Bicycle accidents: 1 in 4,147
Air and space transport accidents: 1 in 5,862
Firearms discharge: 1 in 5,981
Exposure to excessive natural heat: 1 in 6,174
Exposure to electric current, radiation, temperature and pressure: 1 in 9,412
Cataclysmic storm: 1 in 51,199
Hornets, wasps, bees: 1 in 62,950
Lightning: 1 in 81,701
Dog bite/attack: 1 in 119,998
Earthquake: 1 in 153,597

Be careful out there. We may not be able to beat the odds, but hopefully we can delay the payout as long as possible.

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

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Listen: Second Marriage Planning Issues

This week on Hull on Estates, Julia Evans and David Smith discuss how to address and minimize future conflict between a second spouse and children from the previous marriage.

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

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

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

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The frontal lobe of the brain is a true workhorse; it is responsible for reasoning, planning, sequencing, modulation of emotions, and conversion of thoughts into speech. The temporal lobes (one right, one left) are no multitasking slouches either. They serve to process auditory sensation and perception, are integral to language comprehension, and also play a role in the formation and retrieval of long-term memories. 

In frontotemporal dementia (also referred to as Frontal Lobe Dementia), the frontal and/or temporal lobes degenerate, resulting in dramatic personality and behavioural changes. These changes can include lack of insight, impaired judgment, lack of empathy, loss of inhibitions, inappropriateness, a general decline in social graces, impulsivity, withdrawal, ease of distraction, and perseveration of actions. In the later stages of FTD, symptoms include loss of language (‘aphasia’) and loss of muscle movement (‘akinesia’).

Onset of frontotemporal dementia (FTD) can occur at any time during adult life, however most individuals are typically between 50 and 60 years of age. There is currently no known cure for FTD, nor is there a means of slowing its progression. The average length of disease is about 8 years.

FTD accounts for approximately 2-5% of all dementias. Risk factors for the development of FTD are currently unknown, however there is a form which is passed genetically from one generation to the next, although it is extremely rare.

Jennifer Hartman, guest blogger
* image courtesy of Fotolia

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Everyone likes gossip. For those who place themselves in the public spotlight their privacy is constantly invaded, even after death. In an article entitled, “Dead People Science Won’t Let R.I.P.”, Joseph Calamia looks at famous people whose buried bodies have been exhumed. 

Bodies are exhumed for numerous reasons such as to determine the cause of death, to answer historical questions, or identify the deceased, if he or she was either not identified or misidentified at the time of burial.

I found Mr. Calamia’s article to be a little creepy, but nonetheless interesting. For instance, archaeologists discovered Tutankhamen's tomb in 1922 and subsequently learned that the 19-year-old pharaoh “wasn't exactly the model of health.” Egyptian researchers learned from genetic testing “that inbreeding and disease may have left King Tut so crippled that he could barely walk.”

In an article entitled, “Michael Jackson’s Body Might Be Exhumed”, it has been suggested that Dr. Conrad Murray’s legal team may be considering exhuming Michael’s body to suggest that an overdosing of propofol was the least of Michael’s health concerns. 

It appears that even after death, there is no expectation of privacy for some. After numerous attempts were made to snatch the body of former U.S. President, Abraham Lincoln, it was decided that Lincoln’s coffin would rest in steel and concrete. Whatever happened to rest in peace?

Have a good weekend,

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

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Although we are presently in the midst of a cold freeze here in Toronto, many newlyweds are glowing with happiness as they prepare for their weddings. Yes, the wedding season is right around the corner, and with that said, it might be just as important for those who are getting married, to consider reviewing their wills.

The general rule regarding marriages and wills are set out under Section 15(a) of the Succession Law Reform Act ("SLRA"): A will or part of a will is revoked by marriage, unless it is saved by a provision under section 16 of the SLRA. Section 16 of the SLRA states:

1.                  A will is revoked by the marriage of the testator except where,

(a)               there is a declaration in the will that it is made in contemplation of the marriage;

(b)               the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or

(c)               the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate. R.S.O. 1990, c. S.26, s. 16.

An article published in the Globe & Mail, entitled, "Holy matrimony! Time to review your will," reminds us of the importance of reviewing our wills. Some good points raised in this article were:

1.                  Have a backup plan. You need to name a replacement in the event that your executor dies, becomes ill or is incapacitated, otherwise someone will have to apply to the courts to do the job.

2.                  Count your blessings. Have you had any children since you wrote your will?

3.                  Take stock of your assets. Outdated descriptions of your assets can create confusion when you die. 
 

4.                  Leave no grey areas. Ambiguous wording in your will can lead to more than one interpretation. 
 

5.                  Protect your disabled child. Some parents leave outright bequests to children who are on government disability support plans, unaware that this can put these benefits at risk. You should consult with a professional to obtain advice. 
 

6.                  Plan for death and taxes. If you hold shares in your own company, you have the right to make two wills. You should consult with a professional to obtain advice. 

Thank you for reading,

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

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Dianne Nice, an author for The Globe and Mail, wrote a piece on her experience in planning her estate. Her article, "Will Mistakes: I've Made a Few", focuses on errors that she encountered when creating her estate plan. 

Ms. Nice states that while she was pregnant with her second child, she and her husband decided it was time to draw their wills. Ms. Nice and her husband met with a local estate lawyer and instructed the lawyer to prepare two simple wills with their children's welfare in mind.  However, no consideration was given to the possibility that either her or her husband could become incapacitated. If this unfortunate circumstance was to occur, it would likely lead to several other legal issues. For instance, after speaking with a reputable estate lawyer, Ms. Nice learned that even though her husband and her were joint owners of their home, if her husband became incapacitated and did not name her as his power of attorney, she would not have the right to sell or refinance their home.  Also, just because they are married, that did not mean she has the right to make financial decisions for her husband without a power of attorney or a guardianship order.

Other common errors that Ms. Nice pointed to were:

•           Placing too much trust in your delegated financial decision maker

•           Avoiding making a will by using beneficiary designations and joint ownership of assets

•           Leaving behind a handwritten or will kit will instead of retaining professional assistance

•           Neglecting to update your will as you enter marriage or a committed relationship

•           Not updating wills to reflect the life stages of your children

•           Trying to change your will by writing on the original or a copy of the will, or using too many codicils

The above errors should provide insight for consideration when we are considering our estate plan.

Until tomorrow,

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

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In an article published over the weekend, Alison Griffith of the Toronto Star writes that over 21 per cent of Canadian households had received an inheritance averaging $91,000.  This amount is likely to jump as our society continues to age.  As estate lawyers we are often so focused on the importance of advising clients of having an estate plan that we rarely consider the other side: after you have received your inheritance, how do you manage the new found wealth?

Ms. Griffith states: "unexpected money - and sometimes expected money - creates both financial and emotional challenges."Many of us who receive these windfalls often stress over the idea of what to do with the money and how will it be managed. 

In her article, Ms. Griffith recommends that anyone who has received a windfall should follow the following four steps, which will likely assist them in making more informed decisions:

1. Take a deep breath and acknowledge the reality of the situation.  If you received an inheritance the chances are there is a death of someone important in your life.

2. Don’t rush.  Ms. Griffith tells a story of an old friend who inherited over $200,000, following the death of her mother.  She advised that she intended on "playing around" in the stock market.  Six month later - she didn't want to talk about how "play time" ended.  Ms. Griffith states:  "As the calendar advances you almost certainly will change your mind about what you want to do with your windfall.  Meanwhile, park it in short-term GICs or high interest savings account."

3. Seek advice.  "Contact a fee-only or fee-for-service financial planner who doesn’t sell anything other than their services."

4. Reduce your expectations.  "Don’t expect your windfall magically to turn you into a blissful resident of Shangri-La."

Receiving an inheritance can cause the beneficiary to experience mixed emotions.   It is important to consider the above steps to avoid making an impulsive decision, which is likely to lead only to regret.  

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

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Can a deceased person, immediately before his or her death, be found to have been in a common law spousal relationship with two persons, each of whom could assert a claim for support as a dependant?  This was the interesting question recently considered on a motion for interim support under Ontario's Succession Law Reform Act ("SLRA").

In Blair v. Cooke, the Applicant commenced an Application against the Estate seeking dependant support, and subsequently brought a motion seeking interim support from the estate.   In support of her application, the Applicant filed an extensive affidavit describing the history of her relationship with the Deceased and argued that she is a dependant spouse of the Deceased, thus, entitled to support under the provisions of the SLRA.  The court was also provided with numerous affidavits of friends and acquaintances confirming the Applicant’s 11-year relationship with the Deceased.

The Respondent is the estate trustee of the estate for the Deceased, and also argues that she is the Deceased’s common law spouse.  It is important to clarify that the Respondent does not make a claim for dependant support, but rather opposes the Applicant’s application.  In doing so, the Respondent filed her own affidavit and the affidavit of friends and acquaintances, which would corroborate that she was the Deceased’s common law spouse.  The Respondent argued the court should not make any finding of entitlement to support for the Applicant, because doing so would preclude her from claiming support (if she decided to make a claim at a later date) or claiming that she was in fact the “spouse” of the deceased. 

In considering whether or not a person could have two spouses for the purpose of making a dependant support claim, the court considered section 57 of the SLRA, more particularly the following definitions:

1.      “Dependent” can be a  “spouse of the deceased...to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death...”. 

2.      “Spousal” is further defined under the SLRA as “either of two persons who...are not married to each other and have co-habited...continuously for a period of not less than three years”; and

3.       “Co-habit” is defined to mean living together “in a conjugal relationship”.

The “twist” that I found interesting in this case, was that the court found that there was enough evidence to conclude that the deceased may have co-habited with two different women, in different homes.  The court stated that they did not have to determine that one party was a spouse and the other was not for purposes of awarding interim support; in fact both women could qualify.  The Applicant was awarded interim support.

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

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To anyone who has spent time with me in the last year, you know that the word ‘awesome’ has become a permanent fixture in my vocabulary.   So much so in fact, on June 4 of last year, I blogged about, ‘1000 Awesome Things’, a website and concept that I find truly entertaining and interesting; apparently, enjoying the finer points of life is spreading. The Awesome Foundation has sprung up in many cities, throughout the world, and is devoted to spreading and supporting ‘awesome’ concepts. Unfortunately for some, there is a good chance the frequency of use of my favourite word may increase dramatically based on this ‘website with a purpose’.  

The Awesome Foundation has a pretty simple goal: to distribute $1000 per month to a person with an awesome plan for the money.  It’s website states that “[t]he Foundation provides these grants with no strings attached and claims no ownership over the projects it supports…”. The goal is so simple, and so ‘grass-roots’ that the funds can be handed over in a paper bag.

It seems too good to be true, but as Estate litigators, we see many people who leave a portion of their Estate to a charitable or philanthropic cause. What if we took our dreams and goals, as minor as they may be, and really tried to put them into action. This can be through being one of the people who ‘stuffs the bag’ or being one of ones with the big ideas.   The Awesome Foundation, on what can be considered a small scale basis, is sure to make a large scale impact. 

If you have an idea that you think is Awesome, try your luck here and let us know how it goes.  

Have an Awesome Weekend,

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

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A Vancouver court is about to make a decision that will have a significant impact on the world of Estate litigation. The issues before the court, related to sperm-donation, have become so much a part of our culture that a movie dealing with some of the same issues is nominated for four academy awards.

A Toronto woman has launched a lawsuit challenging B.C.’s Adoption Act arguing that she has a right to full knowledge of her history.   Ms. Prattan was conceived with the assistance of a sperm-donor, who chose to remain anonymous. Ms. Prattan clearly takes the position that she is entitled to information relating to her biological father. The matter has been heard and Justice Elaine Adair is expected to render her decision soon.

A recent article in the National Post outlines a significant number of arguments, on both sides of this fight. The long term impact of whether a child will have access to information which was given without the intention that it would ever be shared is still likely too fresh to digest.

Sweden, Norway and the Netherlands have already banned anonymous sperm-donations. With this matter moving its way through the courts, Canada may not be far behind. However, an old adage states ‘with knowledge comes power’, and it certainly holds true, in respect of how this legal issue plays out in the Estate litigation field. 

With sperm-donation being only approximately half a century old, and having dealt with significant legislative changes and requirements throughout its short history, the legal world continues to bounce along and keep up with society and our ever increasing demands. I know that I for one and curious how this matter will turn out, and whether children borne with the assistance of sperm-donation, who may now have access to previously confidential information allowing them to know their parentage, will legally be treated as heirs. 

Stay tuned….

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

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Every year on Groundhog Day I can't help but reflect on Bill Murray and his contribution to the modern North American psyche.  It must be a massive ego trip to know that, on one day of the year, most everyone reflects on a movie that you have made.  With all due apologies to Punxsutawney Phil and Ontario's own Wiarton Willie, Bill Murray is to Groundhog Day what Cupid is to Valentine's Day (that other February distraction).  And you can't escape him.  Groundhog Day (the movie) is played endlessly in syndication (especially on, well, Groundhog Day) unrivaled in its mind-numbing repetition except by the inescapable "Bridget Jones Diary" and Murray's other masterpiece "What About Bob?" 

But I digress.  Groundhog Day (the day, not the movie) speaks to our deepest yearnings for the coming of Spring in the depths of what is now a very frigid winter. And Groundhog Day (the movie, not the day) observes the mind-numbing monotony of everyday life coupled with the fantasy of excelling at a given endeavour if only given 365 chances to repeat it.  There is a lesson in there somewhere...I am just not sure what it is.

Here's to trying to get it right the first time...whatever "it" happens to be!

 I hope you enjoyed this minor tribute to my favourite Bill Murray movie, and that Wiarton Willie was accurate in his prediction this morning.

Until Tomorrow,

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

* The text of this blog was originally posted on Groundhog Day, 2010.

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Listen: Why - Part 3

This week on Hull on Estates and Succession Planning, Ian continues his discussion on "what" it means to be an estate trustee and "why".  Specifically, he talks about dealing with and protecting special assets.

Ian continues his list of Duties for an Estate Trustee continuing with:

4. Dispose of perishable assets and secure and protect all other assets including business interests and rental properties.

5. Review insurance coverage and obtain increased or additional coverage of the assets where necessary.

6. Determine and list the names, addresses and ages of beneficiaries and notify them of their interest.

7. Determine the nature and value of the assets and debts of Louis, an inventory of the Estate, and arrange valuations where necessary.

The “Why” series was spurred by the book Start with Why By Simon Sinek which can be found in the Hull & Hull LLP Reading Center. 

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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Listen: Dependent Support

This week on Hull on Estates, Natalia Angelini and Rick Bickhram talk about a recent decision where the court awarded dependent support to two dependents of the deceased. Click here for more information on the case discussed during this podcast or the citation is Blair v. Cooke, 2011 ONSC  498.

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

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

Rick Bickhram Click here for more information on Rick Bickhram.

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We’ve all heard the jokes about our profession; generally not the most complimentary. For the most part, you brush it off, develop a thick skin, and continue to work hard to build a successful practice and a positive reputation. A recent article in the February 2011 issue of ‘Briefly Speaking’, provided some helpful tips on how to practice law without compromising your integrity when faced with counsel who gives that reputation some basis in reality. 

The article takes a creative and humorous approach to some of the most common day-to-day occurrences that make you say “hmm”, in the practice of law, notably, the infuriating letter and the aggressive opposing counsel. One would think that the issues dealt with in this article reflect basic common sense, but as we often live in a world where time is precious and civility thus falls by the wayside, apparently a few reminders are necessary. 

I took what I believe to be two valuable lessons from Mr. Meehan’s article. The first, how I react is up to me. Every choice has consequences, but the choice is always mine. Attention should be paid to how we behave in any given work situation as the consequences can be extreme, both short term in potential costs awards, and long term in damaging your reputation; The second, that my mom gives good advice; I can hear her now, ‘If you have nothing nice to say, don’t say anything at all’. I don’t think that my mom knew that her little words of wisdom would be useful resource throughout my life, but I’m sure she’s pleased to hear it.

Take the time to read this article and moreover, give it some reflection. Perhaps the next time you are dealing with counsel and you have the notion to act in a reactive fashion, you can choose to be civil because, as Mr. Meehan states, it’s not only the right thing to do, it’s the strategic thing to do.

Something to think about,

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