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In the August 2011 edition of the STEP Journal, Natasha Kapp writes on the duties owed by a departing trustee to his or her successor.  Kapp makes the following observations:

• The "fundamental duty of a trustee upon resignation or removal is to surrender the trust property under their control;"
• This duty encompasses a further duty to "cooperate fully and actively with the new trustee by making all relevant documents and correspondence available and to answer all reasonable questions";
• This duty is not satisfied by prior performance of such disclosure to the beneficiaries of the trust; the new trustee is entitled to "establish for themselves" what assets compose the trust;
• Failure to cooperate with the new trustee giving rise to the assistance of the Court could well attract full indemnity costs against the departing trustees; the beneficiaries ought not to be in any way penalized by the shortcomings of the departing trustees

In Ontario, removal of trustees is governed by s. 37 of the Trustee Act.

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

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 Listen to: Hull on Estates #259 - Fiduciary Duty and the Obligation to Pass Accounts

This week on Hull on Estates, David Smith and Nadia Harasymowycz discuss fiduciary duty and the obligation to pass accounts.  Specifically, they comment on the case Hooper (Estate) v. Hooper, 2011 ONSC 41140 (CanLII).

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

Click here for more information on David Smith. 

Click here for more information on Nadia Harasymowycz. 

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Retiring baby boomers will slow the rate of growth of the labour force significantly over the next twenty years, according to Statistics Canada.

While there could be as many as 22.5 million people working by 2031, up from 18.5 million last year, projections suggest that the rate of growth will slow to between 0.2 per cent and 0.7 per cent a year in the early 2020s. This is in contrast to the '70s, when the labour force increased at an average rate of some four per cent a year.

In 1981, there were roughly six people working for each retiree. By 2031, the ratio will be three to one, Statistics Canada forecasts. By that time, the entire baby-boom generation will have reached the age of 65.

Statscan states: “The projected decline in the overall participation rate over the next two decades would be largely attributable to demographic phenomena, such as the aging of the baby boom cohorts, increasing life expectancy and a fertility rate below the replacement level of 2.1 children per woman.”

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

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Ramnarine v. Ragoo is the latest Ontario case to pronounce on just what is required to sever a joint tenancy.  In this case, the mother of the deceased unsuccessfully sought Judgment declaring that she had a beneficial interest in a home purchased by her son and his common law spouse (the "Respondent") as joint tenants.  The mother argued that a trust agreement was signed by her son giving her such entitlement.

The application failed for the following reasons: (i) there was "no evidence to reasonably support the deceased’s intention to sever the joint tenancy before his death" (ii) the Respondent and deceased were "cohabiting as spouses on the date of his death." (iii) There was "no witness to the agreement, nor was it registered on title." (iv) the deceased mortgaged the property long after the date of the agreement and contrary to the agreement. (v) Had the Respondent predeceased the son he would have received her interest by right of survivorship and (vi) The mother "admits there was no mention of severing the joint tenancy by the deceased at the time the agreement was signed." 

The Court noted that the four unities required to create joint tenancy were present when the deceased and the Respondent took title: "The deed granting title to Ms Ragoo and Mr. Ramnarine was never changed or compromised.  The deceased continued to deal with the property in the same way as before the agreement as evidenced by the remortgaging."  

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

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With summer almost over it is time to look forward to the new beginnings of fall. On September 13, 2011 the courts will open for the new session. To mark the Opening of the Courts, there are a number of special events to which all members of the judiciary, lawyers and paralegals are invited. 

The schedule of events is as follows:

• At 10:00 a.m. there is a Special Divine Interfaith Service at the Church of the Holy Trinity at 10 Trinity Square (Near the Eaton Centre);
• At 3:30 p.m. the Opening of the Courts of Ontario ceremony will take place in Courtroom No. 6-1 at the Toronto Court House, 361 University Avenue; and
• At 4:30 p.m, following the ceremony, the Law Society of Upper Canada will host a reception at Convocation Hall, 130 Queen Street West, Toronto.

It is a very special opportunity to be a part of tradition and to mingle with many esteemed colleagues, members of the bench and government officials. Come be a part of the celebration of the accomplishments of our legal system.

Hope to see you there!

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

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In one of my blogs earlier this summer, I discussed the new Rule 20 of the Rules of Civil Procedure with respect to summary judgment and the two approaches to its interpretation. One takes a narrow view that the test has not changed much, and the other, more expansive view, is that the new rule significantly expands the powers of the motion judge. 

Pursuant to an order of the Honourable Associate Chief Justice for Ontario, the Ontario Bar Association (“OBA”) was appointed as Amicus Curiae to render assistance to the Court on the meaning and scope of Rule 20 in the group of five appeals heard by the Ontario Court of Appeal this summer. The Court’s decision will interpret Rule 20 and provide some guidance regarding the scope of the new powers and the implications for the rest of the proceeding.

In its factum, the OBA does not comment on the merits of the individual appeals but does address the following issues:

1.      Whether the test for summary judgment has changed in that once a motion judge has exercised the powers under Rule 20.04 (2.1) & (2.2), is there any limitation on his or her ability to find facts and to grant or refuse judgment that would not apply to a judge who has conducted a full trial?

2.      When is it appropriate for the motion judge to weigh evidence, evaluate and draw reasonable inferences in order to grant or refuse summary judgment under Rule 20.04(2.1)?

3.      When is it appropriate to hear evidence under Rule 20.04(2.0)?

4.      What are the principles to be considered in issuing orders under Rule 24.05?

For the answers to these questions and more, see the factum for yourself here.

We will be looking forward to hearing from the Court of Appeal itself on these issues. Stay tuned.

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

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We hear a lot about fiduciary duty in the practice of wills and estates. But what is it exactly? According to this definition in Irwin law's online dictionary, a fiduciary is “a person occupying a position of trust vis-à-vis another person”.

In the recent case of Hooper (Estate) v. Hooper, 2011 ONSC 4140, the court discusses the concept of fiduciary duty.  In Hooper, the estate trustee, who did not defend the proceedings against him, placed himself in a fiduciary relationship with respect to not only the deceased, but also in relation to the other named beneficiaries. 

The court commented that when a person in such a fiduciary position fails to pass accounts or otherwise account for his or her actions, he or she can be required to repay the amount unaccounted for to the estate. Breach of such a special relationship gives rise to wide array of equitable remedies.  Such equitable remedies are always subject to the discretion of the court, and are designed to address not only fairness between the parties, but also the public concern about the maintenance of the integrity of fiduciary relationships.

In exercising its equitable discretion, the court is concerned not only with compensating a wronged plaintiff, but also with upholding the obligations of good faith and loyalty, which are the cornerstone of the concept of fiduciary duty. 

The freedom of the fiduciary is limited by the nature of the obligation he or she undertakes, an obligation which “betokens loyalty, good faith and avoidance of a conflict of duty in self interest.”  In short, equity is concerned not only to compensate the plaintiff, but to enforce the trust which is at its heart.

Fiduciary duties are clearly those which should never be entered into lightly or on an uninformed basis.

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

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Listen to: When Meeting Your Lawyer For the First Time - What You Both Need to Know

This week on Hull on Estates, Paul Trudelle and Sharon Davis review what you should expect with your initial client meeting.  They also address a variety of questions, such as how to prepare for the meeting and what kind of documents will be required of you, while touching on some common anxieties that occur when meeting with a lawyer for the first time. 

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

Click here for more information on Paul Trudelle.

Click here for more information on Sharon Davis. 

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The Canadian Bar Association held its Canadian Legal Conference and Expo on August 14-16 in Halifax, Nova Scotia. One of the keynote speakers was the Right Honourable David Johnston, Governor General of Canada. 

Johnston is a former dean of law at the University of Western Ontario, and is a lawyer who knows that of which he speaks. He commented that as lawyers we enjoy a social contract with society whereby in return for self-regulation and a monopoly over the practice of law, we are duty bound to improve justice and serve the public good.

He further commented that Canadians in all provinces wait too long to have their cases heard in court, and face unacceptable delays once there. He singled out Ontario for the worst court processing times in the country, and said that despite efforts to reverse the trend the pace of change is slow.

Johnston said judges and lawyers must act with urgency to break through what criminologists have called a court culture of complacency, if they hope to streamline the process.

Other comments of note by Johnston were that Canada’s law schools are losing touch with practicing lawyers in the real world, and rely too heavily on narrow criteria, such as the standardized Law School Admissions Test (LSAT), for selecting new students.

He also lamented the lack of work-life balance in law firms that penalize those with a family. 

Johnson and another esteemed keynote speaker, the Honourable Madam Justice Beverley McLachlin, Chief Justice of Canada, both commented that the profession must make legal services more affordable and accessible to Canada’s millions of middle-class citizens.

He offered some good advice in suggesting we must engage our most innovative thinking to redefine professionalism and regain our focus on serving the public.

You can read more about Johnson’s speech and reaction to it in articles by Richard Foot for Postmedia News or in the Globe and Mail.

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

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As anyone who has ever been a party to litigation (and every litigation lawyer) knows, the costs of any court proceeding is a looming threat that surrounds the entire process. The sanction of costs is meant to discourage frivolous and vexatious litigation that has no chance of success. It is also meant to temper the zeal of the litigating parties (even where there are very real issues to be tried) by making them think hard about the necessary steps and how they conduct themselves in the litigation.  

The court has broad discretion to award costs under section 131 of the Courts of Justice Act. The factors the court considers in exercising that discretion are found in Rule 57.01 of the Rules of Civil Procedure and include the result in the proceeding, any offer to settle made in writing, the principle of indemnity, the amount of costs that an unsuccessful party could reasonably expect to pay, the amount claimed and the amount recovered in the proceeding, the apportionment of liability, the complexity of the proceeding and the importance of the issues. 

Notably, the court will also consider, the conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding, whether any step was improper, vexatious, unnecessary, taken through negligence, mistake or excessive caution, and a party's denial of or refusal to admit anything that should have been admitted.

Costs sanctions are just one of the many mechanisms built into the litigation process designed to encourage settlement. For example, matters commenced in the Toronto Estates Court are subject to mandatory mediation, which means that the parties must attend with counsel to enter into in good faith settlement negotiations assisted by a professional and neutral third party.

If mediation fails, a pre-trial provides the opportunity for court-assisted settlement whereby a judge will assist and encourage the parties to settle.

Certainly, it is always better to be a part of the resolution, which provides a measure of control over costs and other factors. A much more attractive option than the risk involved with having no control over the outcome. 

Food for thought for all the litigants out there.

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

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National magazine, published by the Canadian Bar Association, has commended the efforts of Hull and Hull LLP as being amongst the best in digital marketing. In its biennial survey, starting at p. 38 of the July/August 2011 issue, the National panel recognized Hull and Hull LLP as standing out in the area of “Use of Video” and “Solo/Small Firm Websites”.

On the use of video, National noted Hull and Hull’s “Media Centre”, where “prospective clients and staff can glean expertise and, in the process, get to know Hull & Hull lawyers.”

On the topic of solo/small firm websites, National said: “Hull & Hull’s website … is bright, interactive, and client friendly,” says [panellist Jordan] Furlong. “Visitors are immediately introduced to the firm’s blogs, videos, newsletters, and other resources. The firm also asks precisely the right question on its from page: ‘Can we help you?’”

We take great pride in our social media presence, and sincerely appreciate the recognition.

Thanks for reading.

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

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Dalton McGuinty has announced that, if re-elected, he intends to expand protected leave from work to employees to allow them to care for family members who cannot care for themselves due to serious injury or illness.

Currently, the Family Medical Leave plan allows employees to take up to eight weeks of unpaid leave to care for terminally ill family members. Under the expanded plan, employees would be entitled to the same eight week unpaid leave in order to care for ill or injured family members.

The plan is in addition to the eight weeks of protected leave afforded to employees with terminally ill family members.

Under the current plan, “family members” receives a broad definition: in addition to immediate family members, the definition includes foster children; siblings-in-law, uncles, aunts, nieces and nephews of the employee or the employee’s spouse; spouses of the employee’s grandchildren, uncles, aunts, nephews or nieces; and persons “who consider the employee to be like a family member”.

The employee must be “providing care” to the person. “Care” includes providing psychological or emotional support, or arranging care by a third party.

It is not clear whether the plan would allow employees protected leave to care for elderly or incapable family members. The press releases define the criteria for eligibility as “a serious injury or illness, including cancer or a stroke”.

At present, there is no corresponding Employment Insurance benefit during such leave (there is for leave for employees with terminally ill family members). The Ontario Government is calling on the federal government to extent Employment Insurance benefits to those taking advantage of the proposed expanded program.

Thanks for reading.

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

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At present, the City of Toronto can provide help with funeral costs to Toronto residents who do not have enough funds in their estate to fully cover funeral expenses.

The program provides assistance for funeral services, burial services or cremation services. With respect to funeral services, the program can pay for the transfer of the body. If there is to be a burial, the program can pay for the purchase of a burial lot, or if the deceased owned a lot, can pay for the opening and closing of the grave. If there is to be a cremation, the program can pay for the cremation, and a standard urn, and the cost of scattering the remains in a cemetery.

Eligibility is based on the financial situation of the deceased and his or her spouse at the time of death. A caseworker will be assigned, who assesses the assets, income, RRSPs and life insurance of the deceased. 

If the deceased person was on Ontario Works, or ODSP, the funeral home can assist in obtaining benefits. (The Province of Ontario can also provides assistance to those on ODSP or Ontario Works.) If the deceased was not on Ontario Works or ODSP, the family or estate trustee should contact the City of Toronto’s Employment and Social Services office. The Employment and Social Services office must be contacted, and must authorize services before a contract is signed with the funeral home or cemetery.

For more information, see the City’s website, here, or call 416.392.1666.

Thanks for reading.

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

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Listen to: Episode #257 - ERAssure - New E&O Protection for Executors.

This week on Hull on Estates, Natalia Angelini and Nadia Harasymowycz discuss E&O insurance provided by the company ERAssure www.erassure.com.  More specifically, they address some frequently asked questions about E&O insurance and why it may be a good consideration for council of estate trustees or even estate trustees themselves.

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

Click here for more information on Natalia Angelini.

Click here for more information on Nadia Harasymowycz. 

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An article by Denise Appleby posted yesterday on the Globe and Mail website sets out the top three retirement savings tips for 55 to 64 year olds.

That group, the article advises, is more acutely aware of the need to save for retirement, and are at a critical time in their lives to assess how financially prepared they are for retirement.

The tips are:

1. Assess whether you are financially ready to retire.

This requires that you assess your assets and needs. The article has links to tools to help with these assessments.

2. Re-Assess your portfolio.

As retirement nears, many move their investments into more conservative vehicles.

3. Pay off high interest debts.

This would likely be good advice for any age group.

The article concludes by suggesting that individuals continue on their path towards having their retirement savings on track, and increase savings where possible. The author notes that saving more than required will help cover unexpected expenses.

From an estate and capacity planning point of view, we see on a daily basis the high cost of health care for the elderly, and the devastating effect that this can have on a retirement plan.

Thanks for reading.

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

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The effect that separation agreements may have on the entitlements of spouses upon the death of one of the parties has fuelled a great deal of litigation. 

One of the issues that can arise is the effect that the separation agreement has on the last will and testament of the deceased spouse. While the Succession Law Reform Act provides that a bequest in a will to a former spouse is revoked upon the termination of a marriage by judgment absolute of divorce, that is not the case where there is only a separation.

In Makarchuk v. Makarchuk, 2011 ONSC 4633 (CanLII), the parties separated, and entered into a separation agreement. The separation agreement provided that, subject to any additional gifts made in any will validly made after the date of the agreement, the parties released all rights that they may acquire under the laws of any jurisdiction in the estate of the other.

The husband died, without making a new will, and without revoking a prior will which provided that his entire estate was to pass to his now separated spouse.

The court was asked to interpret and apply the separation agreement so as to exclude any benefit to the surviving spouse. The court refused to do so. The court held, applying Eccleston Estate v. Eccleston, 3 R.F.L. (5^th) 54, that the language of the separation agreement was not broad enough to apply to rights acquired under the will.  The release in the separation agreement applied only to statutory rights. The release did not “trump” the will.

It is important for separating spouses to consider bequests made in prior wills, and consider revising their estate plan.

Thank you for reading.

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

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Earlier this week, a pioneer in our field was awarded the Order of Canada at the age of 103.   The Order of Canada was established on Canada’s centennial by her Majesty the Queen and recognizes a lifetime of achievement, dedication to the community and service to the nation. The Order of Canada’s motto is Desiderantes Meliorem Patriam, the latin for ‘they desire a better country’.

Ms. Ferguson was awarded the Order earlier this year, yet, in the normal course, the ceremony wasn’t to take place for some time. Ms. Ferguson’s family was concerned by this prospect, as they wanted their beloved matriarch to be present for this honour.  After requests from her family, the Governor General consented to a fast-tracked award presentation. Mr. Belanger, a spokesperson for Rideau Hall was quoted in the Toronto Star saying “Considering Mrs. Ferguson’s age and health, our office prioritized the presentation of her Order of Canada insignia, as we were aware that time was of the essence.”

Her history is one of firsts; one of the first women to attend law school in the 1920s; the first female city councilor in St. Thomas, Ont.; the first judge of the Ontario Division Court, which deals with small claims; organizing the province’s first blood donor clinic; and becoming the first woman to serve on the Senate of the University of Western Ontario. Ms. Ferguson’s storied life is an inspiration and certainly deserving of the Order of Canada, perhaps we can all consider how we can contribute to being part of a better country.   Congratulations to Ms. Ferguson and all the recent award recipients. 

Have a lovely weekend,

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

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I blogged earlier this week on how your marital status can have a significant impact on your estate plan. I focused on the apparent recent trend to not legally marry, but to remain in a common-law relationship, and the particular challenges that an estate faces in such a circumstance. What I began to think about shortly after writing my previous blog was how legal marriages can have equally significant impacts on your estate plan.  

With close to 35% of Canadian marriages falling into the second (+) marriage category, the challenges faced by such couples are being addressed routinely and bring unique estate planning concerns.  Financial planning during your lifetime has a direct impact on your estate, and can often be the difference between a family estate fight and a straightforward estate administration.

We no longer live in a world where the ‘nuclear family’ is the norm. Families now come in a variety of definitions, which, from an estate planning perspective, causes a variety of other issues. A recent article in the Globe and Mail addresses some of the issues that arise in second and third marriages and financial planning, including concerns from adult children about ‘gold-digging’, spending habits, and obligations to previous spouses amongst others. 

A particular challenge for individuals marrying for a second time can include melding of families, children, assets and coming to a general understanding, for all involved as to how your savings will be passed on. Perhaps a life interest for your spouse ought to be considered, or perhaps a complete separation of assets during marriage, with particular funds used for joint expenses, making the question of inheritance somewhat easier. Whatever the ‘perfect’ solution to the various problems that arise due to a second marriage, the key to dealing with financial issues is to know what those issues are to begin with.

If blended families can take steps to deal with the financial issues up front, explaining intentions to their children for both their choices during lifetime and the choices for after their death, the courthouses might become a tad quieter, and you may be able to rest in peace. 

Stay Tuned,

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

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We spend the majority of our lives working, saving for retirement and dreaming of success, often defined as the ‘Freedom 55’ plan. Whether you are still paying off student debt and just starting to consider long term investment, or are but a few years away and wondering if you’ve done enough to live the retirement you’ve always wanted, a recent article in the Financial Post may prove useful as it takes a close look at the dilemmas and financial considerations an ‘early’ retirement may bring.

Many of us will face the same dilemmas that Pilot ‘Jack’ faces in the article. After working hard, even on the brink of freedom, we may have to make tough decisions that impact daily lifestyle during retirement and your Estate. The nuances associated with choice in pension benefits and the impact on those we will eventually leave behind us is well explored in the above-noted article, and certainly sheds light on Estate Planning issues you may otherwise have not considered. The number crunching and options analysis faced by ‘Jack’ will become more and more prevalent across our country as the boomer generation proceeds to yet another milestone en masse.

The options available from the Canadian Government to opt for early retirement and the slight percentage benefit to claiming same in 2011 may throw a curveball into your plans. Whatever your current considerations, it is never too early to take a close look at your retirement goals, in particular what benefits will exist on your death and thereafter. An Estate Plan can be in flux, but knowing the bottom lines should help make all your decisions easier.

Thanks for reading,

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

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Discussing death and planning for such eventuality is a topic that is often uncomfortable and thus avoided, resulting in a transfer of assets which may not reflect the wishes of the deceased.   This can be especially true if you aren’t certain about how your lifestyle impacts your Estate. A recent article in the Financial Post spoke about the impact that misconceptions about marital status can have on estate planning. 

I’m sure you’ve heard it before, or may even be part of the demographic that isn’t concerned about your estate planning because you believe that status as a common-law spouse will suffice to transfer your assets to your partner on death. Although common-law status in Canada is relatively developed, affording many benefits similar to those enjoyed by the legally wed, such benefits do not extend to those received upon death.

Laws differ across the provinces; however, in Ontario a common-law spouse does not have rights to the deceased partner’s estate. Legal avenues to seek redress require commencing legal action against the Estate, a costly and often emotionally difficult process. As is often discussed on our blog, alternative planning options are available, it simply requires time and effort to ensure that your wishes are put into place. Knowing the implications of your marital status on your estate, and giving effect to your intentions can have a simple fix. It’s worth considering.

Until Tomorrow,

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

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The lack of federal estate tax in the US for those who died in 2010 was the talk of many blogs and news reports for much of last year.   In a recent statement from the IRS, Executors for such estates have been given until November 15, 2011 to make a decision regarding the taxes to be applied to the estate they are administering.

The option allows the Executor to skip paying an estate tax, or to pay tax with a $5 million per-person exemption and a 35 percent top rate, the same as applied in 2011. On its face this may seem like an easy decision, why pay taxes if it’s unnecessary, but the choice to pay tax may bring with it long term benefits for the beneficiaries of the estate.  By incurring the tax, the Executor allows for a transfer of certain assets at a stepped up basis, creating a significant potential benefit to the beneficiaries. If the taxes are not paid by the Estate, significant capital gains could remain owing on certain assets, potentially impacting the beneficiaries negatively.

Complicating this choice are administration issues relating to the forms related to filing. It is anticipated that the required forms will be released in the early fall, still giving the Executors time to file.  Certainly, Executors will be considering their fiduciary obligations and the various financial implications for the estate very closely in the coming months.

Even north of the border, where most of us aren’t directly affected by the choices plaguing American Executors, the fiduciary obligations and issues facing Executors are similar. If the choices made by the American Executors make their way to the courts, we’ll be paying close attention.

Until Tomorrow,

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

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It is clear that a solicitor’s duty to substantiate capacity is particularly important where indications of undue influence and/or suspicious circumstances exist, which can apply to power of attorney situations as well as to the preparation of Wills. Unfortunately, many solicitors are not trained to undertake such a task, which is most difficult when incapacity and/or undue influence is not obvious. Where the discussion leaves us questioning capacity, we should consider asking the client to submit to a capacity assessment. 

While assessing capacity involves a complex analysis, the key question for the assessor seems to be: if there is an impairment, can it be overcome? In order to assist the assessor in completing his/her analysis, information sharing is important and can be the key to obtaining a more precise report. Dr. Michel Silberfeld states that it is particularly helpful for assessors to understand as much as possible about their legal direction and objective insofar as the assessment is concerned.[1] He suggests that the following information be provided: (a) the triggering event for the need for the assessment; (b) what the indications of incapacity were, if any; (c) a discussion of the type of assessment required; and (d) which legal capacity should be assessed that will meet the legal objective.

Dr. Silberfeld notes that when assessing capacity to manage property or to give a power of attorney for property, it is generally important to have independent corroborative information about income and expenses, and knowledge of any failures in the management of property.

He also stresses the immense aid the medical information can provide, i.e. recent medical records, list of medications and list of diagnoses from the attending physician.  Providing the assessor withthe appropriate legal, medical, and relevant historical information, as well as the contact information for family members and/or friends that can provide corroborative information, will assist in obtaining a more accurate and timely report. 

Have a great weekend,

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

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Despite the breadth of an attorney’s power under the Substituate Decisions Act, it is subject to significant qualification (subsections 32(7) or 32(8)).  An attorney is not to dispose of specific property that she/he knows is subject to a testamentary gift in the incapable person's Will, unless it is necessary to do so to otherwise comply with the attorney's duties (section 31.1) .

The accountability provisions of the SDA have not been fully tested, leaving uncertainty regarding the parameters of an attorney’s functioning. That said, the decisions being made appear to reveal the courts leaning towards a strict construction of the scope of an attorney’s authority to act.   

For example, in Volchuk v. Kotsis, the Court disallowed a series of purported gifts (cheques and money transfers) effected by an attorney, noting, in addition, that attorneys were precluded from relying solely on their own evidence by section 13 of the Ontario Evidence Act (which provides that evidence must be corroborated by other material evidence). 

Further, in Biamonte Estate v. Ward Estate, a property owned by three deceased persons as tenants in common, and ultimately conveyed by an administrator of one of these estates to benefit her son, was found to be an improper exercise of the power of attorney.   

In addition, in McMullen v. McMullen, an elderly widower commenced an application against two of his three daughters, who held his power of attorney. The daughters transferred a 99% interest in the father’s condominium property to their husbands to preserve their father’s asset (to protect it from being depleted due to a new female acquaintance). The Court declared the condominium transfer null and void. Notably, there was no evidence to show that the father was incapable of managing his financial affairs.

Thanks for reading,

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

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Listen to: Speaking to Win - The Art of Effective Speaking for Lawyers - Hull on Estates # 256

This week on Hull on Estates, Natalia Angelini and Sharon Davis discuss "Speaking to Win - The Art of Effective Speaking for Lawyers", a presentation by Steven Stark.  This program was held by the Advocates' Society on June 8, 2011.  More specifically, this podcast covers the differences in writing and speaking.

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

Click here for more information on Natalia Angelini. 

Click here for more information on Sharon Davis.

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Capacity, trusts and estates litigation brings us at times before the Consent and Capacity Board, where various issues are addressed, including the medical treatment of minors and capacity issues of adults. The applicable legislation includes the Ontario Helath Care Consent Act, S.O. 1996, c-2. 

An article in the August 2001 issue of Briefly Speaking, comments on the distinction between a minor’s rights under the Act versus their limited say in family law litigation. In the course of such discussion, the authors note the case of A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 SCR 181, and refer to Justice Abella’s comments (writing for the majority of the Court) that when dealing with children under 16, the more a court is satisfied that a child is capable of making a mature, independent decision on his or her own behalf, the greater the weight will be given to his or her views when the court is exercising its discretion under the Act. The court should evaluate the following factors:

·                    The nature, purpose and utility of the recommended treatment, and its risks and benefits;

·                    The minor’s intellectual capacity and degree of sophistication to understand the information to make the decision and to appreciate the potential consequences;

·                    The potential impact of the minor’s lifestyle, family relationships and social affiliations on his or her ability to exercise independent judgment;

·                    Whether there is any emotional or psychiatric vulnerabilities, and the impact of the illness on his or her decision-making ability; and

·                    Any other relevant information from adults who know the minor.

Accordingly, minors have a voice in the decision-making about their treatment in appropriate circumstances.

Have a good day,

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

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In Albadi v. Fass, the plaintiff housekeeper was unsuccessful in obtaining an award for unjust enrichment or quantum meruit against the estate of Charles Greenzveig. 

In short, the plaintiff’s evidence (she was the only witness) revealed that she provided housekeeping services to the Deceased, for which she was paid. The plaintiff also disclosed that the pair went on several outings and holidays together, and the Deceased paid for all of the trips. A romantic relationship developed. 

The plaintiff testified that the Deceased told her he would to like to leave her his car and “some money”, and that he wanted to change his Will. The Deceased died without changing this Will.

Despite the plaintiff’s efforts to convince the court of her entitlement, the Court found (it was conceded) that by virtue of section 4 of the Statute of Frauds, R.S.O. 1990, c. S. 19 the plaintiff had no claim based on the oral statement. 

In addition, the test for unjust enrichment was not met, since while the Deceased likely enjoyed an “enrichment” from the services provided by the housekeeper and her companionship outside of work hours, the plaintiff did not suffer any corresponding “deprivation” as she was paid for her services and enjoyed the fully paid for holidays.

As an aside, it is also noteworthy that despite the success of the defendant/estate trustee, he was awarded only a fraction of the costs claimed, in part because no Costs Outline was provided in accordance with the Rules of Civil Procedure. This should serve as a reminder to all of us to be prepared with our costs materials when in court.

Have a good day,

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