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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I regularly tutor students who are preparing to write the Estate and Trust section of the Solicitor’s exam for the Law Society. One of the more common questions that my students ask is for help in explaining two concepts: lapse and the “anti-lapse provision”.

The common definition of a lapsed gift, is a gift that has failed because it is incapable of taking effect.   Two common reasons for a gift to be incapable of taking effect is where the beneficiary predeceases the testator or the gift is disclaimed by the beneficiary.  

Pursuant to Section 23 of the Succession Law Reform Act, unless a contrary intention appears in the Deceased’s Will, if a gift is incapable of taking effect, the failed gift will fall into the residue of the testator's estate and distributed accordingly.

Section 31 of the Succession Law Reform Act is commonly referred to as the anti-lapse provision. The anti-lapse provision saves a failed gift if the beneficiary falls into the class of beneficiaries set-out under this provision and that beneficiary leaves a spouse or issue who survived the testator. If these conditions are met, the gift will not fall into the residue, however it will take effect as if it had been made directly to the spouse or issue of predeceased beneficiary.

Thank you for reading, and have a great day.

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

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In a recent court decision, the Honourable Justice Stinson considered a motion from competing family members for the appointment of an estate trustee during litigation.

In Buswa v. Canzoneri, the Deceased died without a Will on September 29, 2010. The Deceased did not have a spouse and was survived by seven siblings, and two children.

The concern in this case was that the Deceased did not leave anyone with legal authority or responsibility to arrange his funeral and dispose of his remains.

Two of the Deceased’s siblings, the Applicants, applied for a Certificate of Appointment of Estate Trustee Without a Will. The daughter of the Deceased, the Respondent, also applied for a Certificate of Appointment of Estate Trustee Without a Will.

In his decision, the Honourable Justice Stinson considered the legal interpretation of section 29 of the Estates Act, which reads as follows:

As the Deceased did not have a spouse, the court considered the definition of “next of kin.” In the Black’s Law Dictionary, “next of kin” is defined as “the person's nearest of kindred to the decedent, that is, those who are most nearly related by blood.”

Applying these concepts, the court held that the Respondent daughter was related to the Deceased by blood in the first degree, whereas the Applicants siblings were related to the Deceased in the second degree. Accordingly, the Respondent daughter was appointed as the Estate Trustee During Litigation.

Thank you for reading, and have a great day.

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

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Reality Television has now embraced the world of estates.  "Heir Hunters" is a production of the BBC that tracks the efforts of probate researchers to track down missing heirs. The closest Canadian  parallel I can think of is Manhunter but the plot lines are obviously different:  For example, the episodes include searches "for relatives of Red Cross nurse and hairdresser Ivy Hudson, who died at the ripe old age of 103" and " the heirs of Vera Humphrey, who was given up for adoption as a child, and Arthur Comaskey, who died alone in Essex."

I have not had the opportunity to watch an episode but I am certainly curious.  The search for heirs is often a difficult undertaking and can require a certain degree of sleuthing that, in the right hands, I can see making for engaging, if not riveting, TV.  Estates practitioners may represent a disproportionate group of viewers of the show.

The obligation of an estate trustee to search for heirs has been discussed in a past Probator newsletter on our website at this link. 

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

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Listen: 10 Things You Really Need to Know to Practise Law

This week on Hull on Estates Sharon Davis and Natalia Angelini discuss a recent article in Canadian Lawyer Magazine 4 Students "10 Things You Really Need to Know to Practise Law" . Specifically, this article discusses "what more you need to know besides the law?"

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

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

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

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Within the next twenty years, Canada's baby boomers are in line to inherit a substantial fortune, which will represent the largest transfer of wealth from one generation to the next.

In an article written by Jennifer Power Scott and published in Canadian Living, Ms. Scott discusses the  bittersweet bonanza that many heirs face and cautions the impulsive spender: "There are a lot of people in this world who might go out and blow the whole thing in a week, and that's not appropriate. Unless you're well-heeled to begin with, flushing the funds into trips to Las Vegas, sexy cars and plush home theatres probably isn't the smart way to go."

In her article, Ms. Scott stresses the importance of carefully planning what to do with your inheritance, so that your inheritance can turn into a gift that lasts. Ms. Scott urges those who have received a windfall inheritance to:

1. Take a breath. Put your inheritance somewhere safe that earns a good guaranteed rate of interest for a few months while you think things through
2. Once you are ready to make a decision, speak to a certified financial planner
3. Consider your option, such as satisfying outstanding debts, investing into an RESP for your children, or an RRSP or RRIF for yourself

Essentially Ms. Scott's article forces her readers to consider their long-term goals as opposed to their short-term goals. "It pays to step back a little bit. Some people will immediately say, I've got this money, I don't deserve it all, and maybe I should start helping out my kids right away. But they need to make sure that their financial future is properly secured before they do that."

Thank you for reading, and have a great day,

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

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On March 30, 2011, the Family Law Section and Trusts and Estates Section of the Ontario Bar Association are holding a joint event to meet the Province’s new Children’s Lawyer, Ms. Lucy McSweeney. Ms. McSweeney was appointed to the position of Children’s Lawyer for Ontario on September 18, 2010. I understand that Ms. McSweeney’s legal background includes civil litigation, human rights, constitutional and labour law. The Office of the Children’s Lawyer is part of the Ministry of the Attorney General and provides legal services on behalf of children under the age of 18, and in estates, on behalf of the unborn and unascertained, as well.

Ms. McSweeney will address both the Family Law and the Trusts and Estates Sections. This event will allow those in attendance to meet and hear Ms. McSweeney. The program chairs are Dan Goldberg, Senior Counsel, Office of the Children’s Lawyer (Personal Rights) and Susan Stamm, Counsel, Office of the Children’s Lawyer (Property Rights). 

For more information, please contact Blossom Pangowish, OBA Sections Co-ordinator, at (416) 869-0513, ext. 399 or at blossom@oba.org.

See you there.

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

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Today’s blog is the last in my series this week touching upon certain aspects of preparation for trial/hearing in a contested passing of accounts. The items discussed this week were certainly not meant to be, nor were they, exhaustive. Preparation necessary for a hearing/trial with narrow issues, few documents, few evidentiary concerns and an uncomplicated Estate will obviously be different than a case with numerous issues, voluminous documents, evidentiary issues and a complicated administration. The critical aspect of trial preparation is that it begins at the beginning of a case; not literally, but certainly in the sense of being mindful at pre-trial stages of the evidentiary considerations and how the evidence is to be marshalled and presented.

Aside from ensuring that you have appropriate resource materials at the trial (such as texts dealing with the rules of evidence, the Rules of Civil Procedure, Probate Practice etc.), it is important to have prepared your opening and closing statements (to the extent possible), have prepared the necessary law regarding the substantive issues in dispute (casebook, factum), have addressed costs submissions (organizing offers to settle, preparing a Bill of Costs etc.), and have a trial binder with you at trial for your own use. 

A trial binder may contain the pertinent materials that you would like to have at your fingertips during the trial (ie. pleadings, orders, witness lists, witness summaries, answers to undertakings, listing of the types of evidence, objections, offers to settle etc.). The trial binder will allow you to have quick access to information that you might only have a few minutes or less to locate and quickly review. 

While most contested passings settle at a pre-trial stage, if a trial is necessary, success may hinge on the preparedness of the parties.

Thanks for reading.

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

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Today’s blog is a continuation of my blogs this week addressing some aspects of preparation for a trial/hearing in a contested passing of accounts. I briefly touch upon transcripts, the Request to Admit and Witnesses today.

It is important in preparing for trial to review the transcripts of the examinations conducted to assist counsel with locating evidence in the transcripts during trial, including admissions and/or inconsistent statements made by a witness at trial, to address the completeness of questions on the examinations, and whether additional discovery is needed before trial.

If a damages brief is to be provided by the opposing party as a result of an undertaking at examinations or otherwise, one can ensure that it has been provided.

A party may also, further to Rule 51.02 of the Rules of Civil Procedure, at any time, by serving a Request to Admit, request any other party to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document. A copy of any document mentioned in the Request to Admit shall, where practicable be served with the request (unless a copy is already in the possession of the other party).

The opposing party must respond to the Request to Admit as required by the Rules of Civil Procedure, failing which the opposing party will be deemed to admit the truth of the facts asserted in the Request to Admit or the authenticity of the documents referred to in the Request to Admit.  

There may be cost consequences if a party refuses to admit the truth of a fact or authenticate documents which are proven or authenticated during the trial.

Requests to Admit may be effective to: (i) reduce the facts in dispute, (ii) reduce the number of witnesses to be called and/or the examination of a witness, (iii) minimize the costs and length of the trial, and (iv) avoid having to authenticate documents.

With respect to witnesses, amongst other things, it is helpful to make a witness list of anticipated witnesses for each of the parties, prepare a chart of the issues/documents to be proved by each witness and identify and consider the concerns, evidentiary or not, with the evidence and documents to be dealt with by each witness. If the witnesses are experts, the Rules of Civil Procedure have certain requirements. Summons to Witness should also be considered (Rule 53.04) as well as whether an Order excluding witnesses is necessary (Rule 52.06).

Thanks for reading.

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

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Listen to: Interpretation of Wills

This week on Hull on Estates, Paul Trudelle and Sarah Halsted discuss the Estate of W. J. Halliday, 2011.  Specifically, they examine how it pertains to the Interpretation of Wills.

If you have any questions or 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.

Sarah Halsted - Click here for more information on Sarah Halsted.

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My blogs over the next three days will touch upon certain aspects of preparation for the hearing of a contested passing of accounts. Today’s blog will relate to the parties, the scheduling of the hearing, and the preparation of documents/productions for trial. 

The issue of whether all of the parties who ought to be involved in the passing are involved, and, if so, whether any of the parties who do not have representation need representation, must be considered. In considering who the appropriate parties are, or should be, the following questions might be asked: Are there self-represented parties?  Have they been notified of all matters related to the proceeding?  Has any party filed a Notice of No Objection to the accounts?  Has anyone filed a Statement of Submission of Rights (if so, have they been served by the applicant/plaintiff with written notice of the time and place of the hearing)?  Is a minor involved (Rule 7.03(2), The Office of the Children’s Lawyer)?  Is there an adult party who is disabled (Rule 7, The Office of the Public Guardian and Trustee)?  Is a representation Order necessary (Rule 10)?

Regarding the scheduling of the hearing, an order of the Court for directions, or otherwise, at any pre-trial stage, or at the pre-trial conference might address same. It may be that the date of the trial, fixed in its length, is to be fixed by the Registrar on a date mutually convenient to the parties.  If, on the other hand, the proceeding is to be set down for trial further to Rule 48 of the Rules of Civil Procedure, that Ruleallows for the proceeding to be set down for trial after the close of pleadings and when a party is ready for trial. In any case, inquiries might be made with the Court office where the trial is to take place to determine what, if any, forms need to be filed with the Court to confirm that the trial is to proceed.

Regarding the preparation of documents/productions for trial, it is critical that the documents in respect of the proceeding be organized prior to trial. If the documents necessary for the trial are not in counsel’s possession when preparing for trial, for whatever reason, they should be obtained prior to trial.  Such documents include, but are not limited to, all pleadings, the estate accounts, certificate of appointment, prior Judgments for passing of accounts, all Orders regarding the passing of accounts, all Notices of Objections (and withdrawals), Statements of Submission of Rights, Consents/Releases of any party, Affidavits of Service, and the documents exchanged between the parties as a result of the Rules of Civil Procedure, any agreement of the parties, and/or Court Order. 

Issues of privilege regarding the documents should also be dealt with prior to trial, if possible.

Thanks for reading.

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

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The Ontario Bar Association (OBA), Trusts and Estates Section, year end dinner is taking place on May 31, 2011 in the Distillery District in Toronto.    I, as the Chair of the Section, will have the pleasure of bringing this year to a close. The Section will also pay tribute to this year’s recipient of the Award for Excellence in Trusts and Estates, Mary MacGregor.

The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates.

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.

Mary’s distinguished and esteemed career has included her unwavering commitment to, as well as the achievement of, excellence in these areas.   

In addition to the Award for Excellence, the Widdifield Award and the Hoffstein Book Prize will be presented.

For more information, please contact Blossom Pangowish, OBA Sections Co-ordinator, at (416) 869-0513, ext 399 or at blossom@oba.org or award@oba.org.

Enjoy.

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

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Three bakers won the Lotto Max $50 million dollar prize this week, they plan to stop working and enjoy their retirement (as reported by the Toronto Star here). It seems that winning approximately $16.6 million dollars each has allowed them to consider themselves wealthy. 

The perception of wealth has taken a beating in the last few years. With the recession causing a bumpy ride for many since 2007, the recent economic improvement in the stock markets has perhaps again altered our expectations. The number of people who can claim millionaire status in the United States jumped by 8% last year (based on net worth). Shocking? Maybe, but the number still falls short of the highs of 2007. 

I’ve written a fair bit this week on our individual view points, however, today’s blog is the one in which I feel that our subjective perspective is likely the most varied. The reality is that depending on how you calculate millionaire status, being a millionaire may not allow you the freedom you wish for. A million dollars may seem like a significant amount, but if the majority of your net worth is tied up in real estate, an economic downturn like the recent recession will quickly bump you off that list. That’s just one of the many considerations that should be on your mind when reading these statistics.

So where does your number rank? I’m convinced that at most water coolers, around the time that your receptionist asks if you’re in for the office lottery ticket pool this week, you may start to plan what your life would be like if you win. Certainly, even moderate amounts make a difference. The number of people lined up at Tim Hortons with their ‘Roll up the Rim’ free coffee in hand proves that.  Still, I leave you with this, in a recent survey conducted by Fidelity Investments (reported here), it takes having $7 million in net worth to feel wealthy. I think I could probably do with less than that. If you’ve ever seen me win a free coffee, you know what I’m talking about.

Have a great weekend,

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

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My grandma recently celebrated her 91^st birthday. I have on a few occasions asked her what keeps her ‘young’; the answers vary depending on the day. If someone was to ask me what her secret is, I would probably tell you that having lived through World War II, immigration and the difficulties of starting a new life in a country where you don’t speak the language, you learn to take life as it comes, and to stop stressing about the things you can’t change. In my opinion, the secret to a long life lives somewhere in those experiences and your reaction to them. 

A recent study, “The Longevity Project”, found that society’s pre-conceived notions of ‘who lives longer’ may be wrong. The findings, reported in a book of the same title, are the culmination of eight decades worth of research following 1,500 participants, the longest study of its kind. Like any research based study, the results are not impervious to challenge.  An interview with Leslie Martin, co-author of the book, was recently reported in the Toronto Star (found here), addresses some of the potential issues with the research.

Apparently conscientiousness, living honestly and living happily can help you live longer. It is noted however, that the study isn’t based on a closed environment. The variety of factors that can lead to a long life can’t necessarily be easily categorized or quantified.  Even if isolation of each factor were possible for the purpose of examination, those factors exist in relation to each other, with each person bringing their own unique string of factors to study.

I’m certain that we can all take steps to live a healthier, happier and generally longer life. The choices you make are ultimately personal, but I invite you to look at this study, you never know what may apply to you. The one thing glaringly missing in the Longevity Project is the complete lack of genetic data for the sample. For now, I think I’m going to hang my hat on that – Thanks Grandma.

Until Tomorrow,

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

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In the early fall of last year I blogged on the death of Tony Curtis. Recently, Curtis’ estate has again been the subject of many blogs, newspaper articles and even television shows. It has been reported that Curtis left a Will which named his wife, Jill Vandenberg Curtis, as the sole beneficiary. 

It has been reported that the Will was written only five months before the death of the actor, and somewhat surprisingly cuts out his five surviving children. Jamie Lee Curtis, most notably of Halloween fame, and daughter of Tony Curtis was also left out of the Will. Jamie’s disinheritance is not surprising to some, as she had publicly stated that he had been an absent parent.   Despite this apparent rift in their relationship, Jamie gave the eulogy at Curtis’ funeral.

A family breakdown leading to disinheritance is not something that makes the average estate litigator flinch. This case is generally no different. However, it is worth noting that the Will specifically names the five surviving children (a son had predeceased Curtis), and states that the disinheritance was done intentionally and that knowingly Curtis choose not to provide for them. The Will was apparently challenged by one of his children, but the contest was denied. 

It seems that Curtis’ estate will go to his wife, as his last will and testament directs.

Until Tomorrow,

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

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Listen to: Removing Estate Trustees

This week on Hull on Estates, David M. Smith and Nadia Harasymowycz discuss the removal of an Estate Trustee.  Specifically, they refer to the case Johnston v. Lanka.

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

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

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

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If you are anything like me, a window on your computer was set aside on Friday to CNN to follow the aftermath of the Earthquake in Japan. Watching the near constantly updated clips of the horror leaving no part of the country untouched, seeing the ocean turn into a whirlpool, knowing that reports are stating that 10,000 are feared dead and hearing that the search and rescue efforts are now well underway all remind me of how precarious life can be.

Although aftershocks are still ravaging the country and the threat of a nuclear meltdown is still a reality, the world has banded together and relief efforts are surging in from around the globe. The global village concept has, in my opinion, never been more obvious than now, as geographic distance becomes less of a factor with the internet providing a simultaneous report of tragedies allowing us to lend aid as soon as possible. 

The unfortunate stories marked by the mass impact of the earthquake and subsequent tsunami are certain to be heard for generations to come. Sadly, this is likely to be a standard by which we rate natural disasters. However, already it appears that another story may surface from this devastation; we may be able to use this tragic event as a demonstration of the communities of the world banding together to assist one another.

Our thoughts and condolences go out to all those who have been personally affected by this global tragedy.  If you wish to contribute, a variety of relief efforts and ways to donate can be found here.

Thanks for Reading,

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

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It was April 2000 and then-mayor of New York Rudy Giuliani was at his desk when he got the call. The voice on the other end of the phone was that of his urologist, who was about to deliver the results of Giuliani’s recent biopsy for prostate cancer: “The tests came back and they were positive”. Giuliani said thank you and hung up the phone with relief, believing that 'positive' had been used in the literal sense. In his mind, ‘positive’ meant ‘good news’. In fact, a positive test, in medical terms, indicates the presence of the parameter for which the test has been run. Giuliani had prostate cancer.

Health literacy is defined as "the degree to which individuals have the capacity to obtain, process, and understand basic health information and services needed to make appropriate health decisions". A 2006 study by the U.S. Department of Education found that 36 percent of adults are only able to understand hospital discharge instructions written at, or below, the fifth-grade level. Canadians don’t fare much better. In 2007, the Canadian Council on Learning (CCL) reported that only 40 percent of Canadians had the necessary skills to understand and act upon health information. Both the U.S. and Canadian studies revealed that poor health literacy disproportionately affects the poor, the unemployed, and recent immigrants. Statistics amongst seniors are particularly shocking; 88 percent have less than adequate health literacy skills.  Even geography plays a role, as illustrated graphically in this interactive map produced by CCL as part of their report.

Solutions that bridge the gap between the medical community and the patient abound: the use of computer software to flag jargon and suggest alternatives (e.g. replace ‘hyperlipidemia’ with ‘high cholesterol’), the use of videos or handouts with lots of illustrations, the creation of opportunities for ‘teach-back’ that allow the doctor to confirm that his/her instructions were fully understood, and enhanced follow-up care after discharge to home from hospital.

Why are governments interested in health literacy? Susan Pisano, Vice President of Communications for America’s Health Insurance Plans sums it thusly: “Health literacy affects every single thing we do. The implications are mind-boggling.” Poor health literacy leads to higher rates of hospital readmission, unnecessary complications, and even death. Solid health literacy, in short, contributes to good health.

Jennifer Hartman, guest blogger 

* photo courtesy of iStockphoto

 

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In estate litigation, it is not uncommon to deal with issues regarding human remains. People may be fighting over remains, a person’s remains may need to be transported, and so on.

In the Canadian film “Highway 61”, a Canadian barber/would be jazz musician finds a frozen corpse in his backyard, and agrees to accompany a roadie who claims the dead man as her brother to the United States. Meanwhile, the roadie actually intends to use the body to smuggle drugs to the United States. Clearly, this would constitute an extreme violation of any number of statutes.

But how about transporting remains via post or courier? Does one commit a faux pas by transmitting remains this way? While Canada Post will ship cremated remains, Canada Post’s Priority Worldwide service refuses to ship “human corpses, human organs or body parts, cremated or disinterred human remains”. Purolator refuses to ship remains to domestic or U.S. destinations. Internationally, the easiest way to transport remains is to hire a service which will fly the remains out of the country, or you can fly with them yourself. In conclusion, shipping remains by mail is safe to do within Canada (although not by Purolator); just do not cross the border unless you’re willing to have someone take a plane trip with the remains of the deceased.

Sarah Halsted – Click Here For More Information About Sarah Halsted

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Just last week, my parents attended a seminar at a local funeral home to assist them in planning for death. They came home all abuzz about such terms as “spousal trusts” and “mirror wills”.

Helping your parents plan for death is a very complex enterprise. For starters, they may not want your help. If they do, they may want help ensuring their assets will not be squandered after death, and, if you are anything like me, the last thing you want to think about is what is going to happen after your parents die. Avoidance of the problem is a possible consequence.

However, avoiding the issue is not a way of coping with the inevitability of the death of your parents and other loved ones. It is crucial that, for instance, an Estate Trustee that will abide by your parents’ last wishes is chosen. It may be advisable to pay attention to Mom when she tells you what she wants done with her remains, regardless of whether the conversation makes you uncomfortable. Further, wills should be updated in the case that they wish to give gifts to, for instance, recently born grandchildren or great-grandchildren, or revoke gifts given to the undeserving. In my case, my parents’ Wills are about as old as I am and stand in need of revision. If input is requested by one’s parents, listening to what your parents want and encouragement to be communicative is key.

Sarah Halsted – Click Here For More Information About Sarah Halsted

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Listen: Paper Reduction in the Law Office

This week on Hull on Estates, Paul Trudelle and Rick Bickhram discuss a recent audio webcast titled "Scanning and Paper Reduction in the Law Office 101."  Specifically, they touch on how a law office can make the transition to becoming a paperless office.

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

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

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

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In King v. King, an ex-husband brought an application for a declaration that his former wife waived her entitlement to his survivor’s pension by way of a separation agreement that contained a release by the wife of any claim or interest in the pension.

Section 24 of the Pension Benefits Act establishes a joint and survivor pension in the case where a former member has a spouse on the day that the first instalment of the pension is due to be paid. Because the first instalment of the pension was due at the time that the ex-husband was married to his second wife, the pension became a joint and survivor pension.

However, the separation agreement does not resemble the statutorily required Form 3. As such, the ex-husband cannot rely on the Act’s exception that would have been grounds for a declaration that there was a waiver of the wife’s entitlement to the pension. Justice Cornell remarked that “given the mandatory requirement that in order for the waiver to be valid, the prescribed form must be used, Mr. King has found himself in the unfortunate position of being caught in a trap for the unwary”.

To avoid such problems, those drafting separation agreements should be aware of the specific legal requirements regarding particular types of pensions.

Note also that Form 3 was revoked in 2000, so going forward, this is not likely a restriction.

Sarah Halsted - Click Here For More Information About Sarah Halsted

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One can’t deny that social media has changed the way we interact with one another. To better embrace this new way of social interaction, we’ve been working hard at Hull & Hull LLP to help you stay connected to us by creating several media options to empower you with legal and practical knowledge on estate matters.

We invite you to visit our Media Centre via our website www.hullandhull.com, where you can follow us on multiple social networking sites such as Twitter, Facebook and LinkedIn, to help keep you up to date with our latest blogs, podcasts, news and events. While visiting our Media Centre you will also have the option to subscribe to our RSS feed for blogs and podcasts, as well as be given the opportunity to download our material on iTunes or follow us on our YouTube channel.

We are also excited to introduce the new online subscription of our quarterly newsletter “The Probater”, so you can have every issue sent directly to your inbox.

If you have any questions at all, please contact our Social Media Coordinator, Amy Cochren, at acochren@hullandhull.com.

Thanks!

Suzana Popovic-Montag - Click here for more information on Suzana Popovic-Montag.

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I recently bought a book titled “The Power of Half”.  It is the story of one family’s decision to stop taking and start giving back. The adventure started when 14-year-old Hannah Salwen spotted a homeless man in her neighbourhood and at the very same time an expensive Mercedes car pulled up beside them. Hannah turned to her father, Kevin Salwen, and said that if that man had a less nice car, then the homeless man could have a meal. When Hannah was stopped in her tracks by the glaring disparity, her parents had to act on her urge to do something.

As a family, they decided to sell their dream home, downsize to a home half its size and give half of the proceeds to a worthy charity. Their efforts and contribution to “the Hunger Project” in Africa saved entire villages: Truly amazing and inspiring.   

One of the things Hannah did was to work in a soup kitchen, where she served food to the homeless. Now I’m no Hannah, but I have had occasion (and will have more in the future) to serve breakfast to the homeless. I found it a very rewarding and enjoyable experience. An added bonus is that I was able to do it close to home in a familiar environment, surrounded by other lawyers (I’m not quite ready for Africa)! 

TheLawyers Feed the Hungry program operates in Toronto, London, Ottawa and Windsor. In Toronto, hot meals have been served since 1998 in the Law Society of Upper Canada cafeteria at 130 Queen Street West, Toronto.

 Program times are as follows:

• Wednesday Dinner at 5 p.m.
• Thursday Breakfast at 6:45 a.m (brown-bag lunch also provided).
• Friday Dinner at 5 p.m. (brown-bag lunch also provided).
• Sunday Breakfast at 10 a.m. (brown-bag lunch also provided).

The program runs year round thanks to donations to The Law Society Foundation and the assistance of volunteers. 

Another source of support for the program comes from a yearly fund-raising event. This year’s event is called “Rockin’ the Courthouse” featuring lawyer rock bands such as “Tortious Conduct” and “The Soul Practitioner”. It is being held May 6, 2011 at the Courthouse restaurant.  

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

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I don’t know about you, but I love it when the courts consider novel ideas as a practical solution to a legal problem. That is why the decision of Re D’Angelo Estate, 2010 ONSC 7244 (CanLII) caught my attention.

In D’Angelo Estate, Faust D’Angelo, deceased, resided in St. Catharines, Ontario. In his Last Will, he appointed his son, Emidio, and Emidio’s daughter, Denise as co-executors. His estate was divided equally amongst Emidio and his three surviving siblings. The estate, situate in Ontario, was worth approximately $1.5 Million.

Emidio and Denise, because they both lived in the United States, were obliged to obtain a Foreign Executors’ Bond. The insurer would only issue a bond if a lawyer in counsel’s firm was appointed by the Court as a monitor to supervise the administration of the estate.

The Court allowed the co-executors’ motion and appointed the monitor. Here are a few of the interesting findings leading up to its decision:

·        The co-executors both had standing under Rule 74.15(1)(i) as persons who appeared to have a financial interest in the estate. Emidio had a financial interest because he was a beneficiary. The Court found that the financial interest contemplated by the rule may be direct, indirect or contingent and although Denise was not a beneficiary, she had standing due to her entitlement to claim executor’s compensation, which was a contingent financial interest in the estate.

·        The Court noted that monitors had been appointed by courts in other situations to monitor the business and financial affairs of a charity and under the oppression remedies in the Ontario Business Corporation Act, which makes no provision for a monitor. 

·        The monitor would be an officer of the court and the responsibilities of an officer of the Court are: 1) to act fairly, honestly and impartially as a fiduciary on behalf of all persons having a financial interest; 2) to comply with the powers granted in the order of appointment; and 3) to be accountable to the Court and to the persons in 1).

·        The appointment of a monitor did not require approval or input from the beneficiaries (the motion was made without notice).

·        Pursuant to Rule 1.01(6), it was okay to modify the prescribed forms as circumstances required and so the form of Certificate could be varied to a “Certificate of Appointment of Estate Trustees with a Will and Court-Appointed Monitor”.

I certainly think this case is novel and provides an alternative that could be quite a useful solution in some situations.

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

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I was appalled at the recent report in the news of a 68-year-old woman found unconscious in a cold garage, where she had been forced to live since last November. The woman was taken to the hospital in life-threatening condition and was treated for frostbite. Her son and daughter-in-law were charged with failing to provide the necessities of life, as well as criminal negligence causing bodily harm.

It is estimated that between 4 and 10 per cent of Canada's seniors experience some kind of abuse. Most incidents relate to verbal and financial abuse, and the kind of extreme physical abuse experienced in this case is, thankfully, more rare. However, elder abuse is prevalent enough in Ontario to prompt the provincial government to take steps to eliminate it by committing annual operating funding for prevention initiatives. 

The Ontario Network for the Prevention of Elder Abuse has launched a new province-wide toll-free hotline to assist abused and at-risk seniors. The Seniors Safety Line will provide information, referrals, and support 24 hours a day, 7 days a week, in over 150 languages. The hotline is a confidential resource for seniors suffering abuse, including financial, physical, sexual and mental abuse and neglect. The Seniors Safety Line can be reached at 1-866-299-1011.

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

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Listen to: 10 tips: lawyer-client communication

This week on Hull on Estates and Succession Planning, Paul Trudelle and Sharon Davis give insight into 10 tips for successful lawyer-client communication. 

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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Law, like any coin, or the law of nature itself, has two sides that are equal and opposing forces: The drive to be to be a noble profession and a successful business. Another simple truth is that opposites attract and, when co-existing in proper harmony, form an unstoppable and impenetrable force. 

Yesterday, I mentioned the five laws of stratospheric success. These laws are the theory of Bob Burg and John David Mann expressed in their best-selling book, The Go-Giver.  This little red book is a parable; a quick and enjoyable read. It won’t take much of your time to read it, but you just might spend the rest of your life applying it. 

The five laws are:

1. The law of value – your worth is determined by how much more you give in value than you take in payment
2. The law of compensation – your income is determined by how many you serve and how well you serve them
3. The law of influence – your influence is determined by how abundantly you place other’s interests first
4. The law of authenticity – the most valuable thing you have to offer is yourself
5. The law of receptivity – the key to effective giving is to stay open to receiving

Creating opportunities in one’s career is a concept that has been scientifically studied and reported in educational journals. Scholarly publications on serendipity, synchronicity, and happenstance, all attest to the theory that one’s career development is not linear, progressive, and rational. Career destiny cannot be predicted in advance. Rather, it is a function of the beneficial, unplanned and unanticipated events, opportunities and learning experiences that are generated by one’s actions. 

How then, as lawyers, do we reconcile our need for certainty and control with the thought that our careers are at the mercy of the fickle finger of fate? In considering this theory, it is important to note that we always have control over our actions and choices, which in turn determine our professional experiences and opportunities. This is not just dumb luck.

I have had the privilege of speaking with many successful lawyers over the years and what they all have in common is that they have all instinctively applied the five laws and have invariably experienced the power of happenstance in their careers. 

Once such successful person is Chief Justice Warren Winkler of the Ontario Court of Appeal, with whom I have recently had the pleasure of speaking about how one becomes successful in the legal profession. If you are interested in hearing his thoughts on this topic first hand, you can do so on March 30, 2011 at a special event being held by WLAO. 

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