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Halloween (or, more properly, "All Hallows Eve") has gradually developed into a commercial phenomenon.  Many adults will wear costumes to work but this practice is generally discouraged among lawyers in private practice according to an article in the most recent issue of The Lawyers Weekly entitled "Should you don a Halloween costume at work?" The author quotes a lawyer in a small firm as making the rather astute observation that "For clients, going to a lawyer is scary enough!" 

Yet Halloween remains, essentially, a fun diversion from the ordinary as detailed in a recent article in the National Post entitled: "The War on Halloween".  For example, in Churchill, Man., Halloween coincides with an annual gathering of polar bears in the vicinity of the town waiting for Hudson Bay to freeze.  "As such, the community’s 300-or-so trick-or-treaters need to be guarded by a combined force of Mounties, firefighters and conservation officers circling the community in helicopters and heavy trucks." 

The National Post piece puts it well: “Halloween is a role reversal holiday,” says Cindy Dell Clark, a Rutgers University anthropologist specializing in childhood culture. "While under the thumb of adults the rest of the year, on Halloween night children get to dress up as grown-ups, talk to strangers, brave frightening icons and consume vast amounts of a substance that’s normally controlled, she said. In the never-ending struggle for power between parents and children, Halloween is a much-needed “relief valve,” says Ms. Clark."

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

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The Starter Marriage to become the Trial Marriage?

A colleague recently drew to my attention the recent Mexico City discussions regarding the possibility of altering its marriage laws. It seems that the mayor of Mexico City has co-authored proposed legislation that would create term-limited marriage licences. As it stands, the proposal would allow for marriages to be performed for a two year period. The mayor of Mexico city is quoted in The Guardian as saying “when the two-year period is up, if the relationship is not stable or harmonious, the contract simply ends”.

While escalating divorce rates may have been at the root of this novel concept, and there may be many commitment phobes world-wide who now see Mexico as the go-to destination for marriage, the estate litigator in me immediately thought of the potential issues.  

Section 16 of the Succession Law Reform Act, R.S.O. 1990, C.s. 26 (the “SLRA”), provides that a will is revoked upon marriage, and allows for certain exceptions, none of which seem to apply to this circumstance. Section 17 of the SLRA deals with termination of marriage and its impact on testate succession, but specifically addresses a situation when marriage is terminated by a “judgment absolute of divorce or is declared a nullity”. It would seem to me that the Mexican legislation provides neither where the ‘married’ parties choose not to renew their vows after the two year time frame.

Under the proposed regime in Mexico, which seems to consider that this new form of marriage is simply a contract, what would happen if an Ontario couple chose to have a destination wedding in Mexico City. How is that marriage certificate registered in Ontario? Does the two-year limit apply in Ontario? Are their wills, if they have them, revoked? If they make wills during their ‘marriage’ and choose not to continue the marriage after two years, does the contact ending satisfy section 17 of the SLRA? Would the marriage be treated as a cohabitation contract? What if one of the married persons dies in the two year period, what impact does that have in terms of legal entitlement to the estate of their spouse? 

This seems like it might be a recipe for significant Estate Litigation in the future, I suppose only time will tell.

Hasta Luego,

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

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Yesterday I wrote briefly on the anticipated continued increase in life expectancy for Canadians, and how that impacts our pension plans and general estate planning. The considerations that we will face with an ever aging population are endless and oft discussed amongst those in the estate planning/litigation field. Yet, it’s possible that ‘planning for the future’ includes ‘planning for a future we may not remember’, and this consideration is quickly moving to the forefront for many. 

As people start to live longer, they are inevitably impacted by more illness. Almost everyone I know has a parent, grandparent, sibling, aunt or uncle affected by dementia or Alzheimer’s. It is so common that we almost expect that as we age our memory will fail, eventually to a level where we may become unrecognizable to ourselves. Saddening as that thought is, knowing that we will be well cared for if such disease takes over is a critical part of estate planning. A recent article in the Financial Post touched on how the descent into an unmemorable life can and should impact your long term plan. The article also noted that the varied and possibly significant costs associated with this side of aging isn’t limited to those who themselves are afflicted. As the baby boomers get older, they find themselves caring for their parents, either by personally attending to parental needs and/or by contributing financially to ensure those needs are taken care of. This assistance can put an unexpected financial toll on those who are ‘helping out’.

Estate Litigators routinely see the fallout of those who haven’t planned for this possibility. Guardianship Applications and Applications to Pass Accounts as Attorney for Property are becoming phrases we say everyday. If steps are not taken to plan for the outcome before dementia or Alzheimer’s start taking effect, legal and medical decisions can be much harder to make. Although the initial costs of financial planning, including making a power of attorney and a will, may seem to be a lot, how much is your future worth?

Until Tomorrow,

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

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Listen to: Hull on Estates Episode #266 - Back to Basics - Intestate Succession

This week on Hull on Estates, David Smith and Nadia Harasymowycz discuss how things aren't always as simple as they appear and explain that complications can arise from the most basic things.  Specifically, they touch on the issue of intestate succession.

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

For more information on David Smith, click here. 

For more information on Nadia Harasymowycz, click here. 

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I can recall various conversations with my grandparents about what it’s like to live into your 80s and 90s. The responses varied on the day and the specific topic of discussion, but there was always an undercurrent that life was worth living, and that extending life was a good thing. The dreams you have for your ‘elder years’ may be diverse or focused, but how you are going to support those plans is something you may already have banked on, literally and figuratively. For many Canadians, their retirement plan includes a pension, and a reliance on those funds to live the life of freedom they have long worked hard for, and for some, the pension is the lifeline and the only means by which they will financially survive. Yet, in the ever changing economy, and in planning for the future, how much consideration ought to be given to the pension plan’s investment strategy when planning for your life? 

Statistics Canada reports that between 1950–1952, the average life expectancy for a Canadian Male was 66 years and 71 years for a female. The life expectancy for the average Canadian now, is 79 years for a male and 83 years for a female.  Life expectancy in Canada may surpass 90 years by 2100.  This increase is substantial, and most everyone in the country breathes a sigh of relief to know that we have those precious extra years to spend with our loved ones in retirement, as noted, many relying on pensions to survive. Yet, as recently reported in the Globe and Mail, more than $1-trillion of Canadian pension assets and annuity reserves face longevity risk[1].  As we live longer, we are putting our pension plans, many created and based on historical valuations, together the security they provide, at risk. The solutions to this problem are far reaching and there are certainly those who will be focussing their attention on this particular field in the near future, perhaps, in an ironic twist, exploring this potential financial deficit will be of financial benefit to some.  

I suppose the most important question for the moment is whether the pension plans will have sufficient funds to pay out on their obligations, and how will this interplay impact your estate planning and livelihood.

Thanks for reading,

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

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As any lawyer can tell you, we are held accountable for our advice and actions on a daily basis. From the moment we are called to the bar, we are well aware that we are responsible for everything that passes by our desk.  Knowledge can be both intimidating as well as motivating to a lawyer of any level of experience. We constantly strive to ensure that we are practicing law in a manner that will minimize, and hopefully remove, the possibility of a claim against us.

LawPRO, an insurer for lawyers, takes steps to provide assistance in all areas of your law practice, and the efforts to practice in manner that promotes a thriving law practice while avoiding a legal malpractice claim. As part of its initiative to keep lawyers informed, LawPRO’s PracticePRO has recently circulated its “Guide to Resources”, which draws attention to the “Avoid A Claim” blog, practice aids, the lending library, online coaching centre, and its top downloads, all of which are very useful in everyday practice.

Whatever brings you to the PracticePRO website, it is sure to deliver precisely what you need. Even if it doesn’t, the website encourages questions and seeks your input. A valuable resource for any lawyer; young or old, near or far.

Thanks for reading,

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

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Since the death of Moammar Quadahfi last week, the extent of his assets has been discovered to the shock of many, including the American government.  Recent numbers suggest that prior to his death he had managed to secret away nearly $200 billion in assets, which included funds held in various bank accounts, real estate and corporate investments as reported recently in the Toronto Star.

Given the current political climate, and the reality that nearly a third of the citizens of Libya live in poverty, the massive estate could certainly assist the government in its transition.   However, a portion of the estate funds cannot be accessed by the UN during the course of it's freeze on Libyan assets, and national laws which require that those assets only be released to their rightful owner.

There has been some effort to release Quadahfi's funds to the transition Libyan government, with UN authorization of the release of $1.5 billion of assets, however the timing for the release of the remainder of the funds remains up in the air.  The sheer quantity of assets owned by Quadahfi on his death is staggering, even to the people involved.  His ownership in assets includes investment in foreign entities which may not be readily liquified.  Quadahfi's estate may be in a state of limbo for the next little while, leaving us certain to see international laws interact with issues often only dealt with in internal family circles.   I will certainly be watching to see how this plays out.

Until tomorrow,

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

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Would it occur to you if you had nearly 200 reptiles living with you, that you really should make a Will? Recently in Ontario, this issue slithered into the Courts.  

The National Post this week reported the story of a Welland, Ontario man who died, as a result of an unexpected stroke, in May at the age of 52. Uniquely, he was survived by 200 exotic reptiles. Unfortunately, he did not leave a Will. Without a Will, there was no named executor for his estate and no directions with respect to the division of his assets or care of his exotic pets. This resulted in litigation, which only recently settled.

If you die without a Will, you are considered to have died "intestate." Simply put, this means that statutory provisions decide how your assets will be divided. Any intentions you may have had for your assets, which technically include any animals you own, are not factored into the statutory distribution scheme. 

In Ontario, if a person dies intestate, Part II of the Succession Law Reform Act governs who is entitled to their estate. As regular readers of our blog know, the order in which relatives of a deceased are entitled to inherit in an intestacy is, as follows:

1. If there is a spouse (defined as a married spouse only) and no children, the spouse takes all.
2. If there is a spouse and any children, the spouse gets the first $200,000.00 (the preferential share) of the estate.  If there is only one child, the balance of the residue is divided between the spouse and the child equally. If there is more than one child, the spouse gets one-third of the balance of the residue and the children share the other two-thirds equally.
3. If there is no spouse, the estate goes to the children equally.
4. If there are no children, the estate goes to the deceased’s parents equally.
5. If there no surviving parents, the estate goes to the deceased’s siblings equally; if a sibling has predeceased, that sibling’s share goes to his or her children.
6. If there are no siblings, the estate goes to the deceased’s nephews and nieces equally.
7. If there are no nephews or nieces, it goes to the next of kin of equal degree of consanguinity – in some cases, distant relatives who may have had no relationship with the deceased can end up inheriting. 
8. If there are no next of kin, the estate escheats to the Crown.

Having a thoughtfully considered and up-to-date Will is necessary not only to ensure that your intended beneficiaries share in your estate in a manner that it is appropriate and reflects your wishes, but also to ensure that your menagerie, should you have one, is provided for too.

Thanks for reading. Enjoy the weekend,

Saman Jaffery

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In the latest development in the protracted litigation between the heiress to a cosmetics fortune and her daughter, a French Court this week granted guardianship applications brought by her daughter and grandchildren. The Court made findings that the mother was not capable of managing her own property or making personal care decisions.

In Ontario, guardianship disputes are governed by the Substitute Decisions Act (“SDA”). Under section 3 of the SDA, when the capacity of a person is in dispute, counsel may be ordered to be appointed by the Public Guardian and Trustee and the alleged incapable person will be deemed to have capacity to instruct counsel.

To read more about the history of the proceeding referred to at the outset of this blog, I suggest Forbes magazine’s article.

Thanks for reading,
Saman Jaffery

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 Listen to: Hull on Estates #265 - Minor Children and Dependant Support Applications 

This week on Hull on Estates, David Smith and Natalia Angelini discuss the issue of minor children and dependant support applications.  More specifically, they give some basic tips when bringing forward your claim.

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 Natalia Angelini. 

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The recent Manitoba decision of Estate of Marion Warren Gandy and Estate of Frank Richard Gandy, 2011 MBQB 78 (CanLII) considered whether running errands, entertainment, and time otherwise spent in connection with a disabled beneficiary was compensable work for an estate trustee.

In the matter, the trustees of the estates of Frank Gandy (“Frank”) and Marion Gandy (“Marion”) applied to the court to pass the accounts of their respective estates, and the motions to pass the accounts were heard together.  This was a second passing of accounts for both estates.

By way of background, Frank and Marion were married to each other, and died within months of each other. Their adult son, Ian, was mentally disabled and under the jurisdiction of the Public Trustee of Manitoba. Frank appointed his nephew Donald, Donald's wife, and his lawyer as the trustees of his estate. Marion appointed the same trustees for her estate.  By the second passing of accounts application, Frank’s estate was valued at less than $300,000 and Marion’s estate was valued at less than $140,000.

At the hearing, Donald sought $5,000 in compensation for time expended in respect of Frank's estate and a further $5,000 in compensation for time expended in respect of Marion's estate. No objection was filed by the Public Trustee of Manitoba. However, one of the beneficiaries objected to the compensation sought. The beneficiary stated that the time spent by Donald in connection with the estates for which he claimed compensation was spent largely on: "Running errands, entertainment and time spent in connection with lan".  In the circumstances, the Court held that these concerns relating to the compensation were valid. The Court stated that “While it is commendable that Donald undertake various tasks for Ian, he does so as a family member, and there is no justification for the type or amount of remuneration sought.”  Further, despite dockets maintained by Donald, the Court stated that “It is impossible in the circumstances to ascertain with any degree of accuracy how much time was spent by Donald on work for which he might appropriately be recompensed in each estate.” Accordingly, the Court reduced the compensation payable to Donald to $2,000 in the case of Frank’s estate and $2,500 in the case of Marion’s estate.

Thanks for reading,

Saman Jaffery

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The phrases “per stirpes” and “per capita” are frequently used in wills drafted by lawyers. They refer to the manner in which property is to be distributed between, or amongst, beneficiaries.  Despite their frequent use, these phrases are commonly misunderstood.

Generally speaking, the phrase “per stirpes” is taken to describe a manner of distribution to issue (i.e. lineal descendants) where each branch of the family is to receive an equal share of an estate. If a testator divides the residue of her estate amongst her “issue in equal shares per stirpes” it means that, in the first instance, the testator’s children will be entitled to the residue of the estate in equal shares; however, if any child has died leaving children of her own, the children of such predeceased child (the testator’s grandchildren) will receive the predeceased child’s share, and if any grandchild entitled to such a share has died leaving children of her own, the children of such predeceased grandchild (the testator’s great grandchildren) would then be entitled to the predeceased grandchild’s share, and so on.  

This method of distribution can be contrasted with a “per capita” distribution. If a testator divides the residue of her estate amongst “issue alive at my death in equal shares per capita,” then all of the testator’s issue, including all children, grandchildren, and great grandchildren etc., would receive an equal share. For example, if a testator is survived by three children, four grandchildren, and one great grandchild, then each descendant would receive one eighth of the residue of the estate.

A helpful diagram comparing “per stirpes” and “per capita” distribution is found here.

Because the phrases “per stirpes” and “per capita” can be misunderstood, some lawyers avoid them all together and others include a clear definition of the phrases in the will.

Thanks for reading,

Saman M. Jaffery

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In the U.K., at least one in ten people are now leaving or intend to leave their Internet passwords in their wills, according to a recent survey conducted by Goldsmiths at the University of London. 

The survey, titled Generation Cloud, was conducted on behalf of cloud computing company, Rackspace, and questioned 2,000 Brits, ages 18 and over. It discovered that 11 per cent of Brits have left Internet passwords in their wills or at least plan to do so. People are leaving their passwords to cloud services and sites such as Hotmail, Gmail, Facebook, iCloud, and Flickr to ensure their personal data can be deleted, archived, or monitored after their deaths.

For estate planners, other key findings of the survey include:

• 30 per cent of Brits have considered digital possessions as a potential digital inheritance;
   
• The majority of Brits (53.5 per cent) have “treasured possessions” stored online in cloud services. These digital treasures include special videos (such as wedding videos), photos and emails, as well as passwords and valuable documents; and
   
• Almost a quarter (24 per cent) of Brits estimate that they have digital information such as personal videos, music, books, and photos stored in cloud services worth more than £200 per person, which amounts to at least £2.3 billion across the UK.

While many estate planners may not be keen on advising clients to include Internet passwords (which tend to change routinely and require updating) directly in their wills, the results of the survey are clear - the digital estate planning needs of clients must be addressed. Estate planners should assist clients in understanding the extent of the digital assets they possess and their plan for what should be done with these assets.

For more information on digital estate planning, see our previous blogs and podcasts.

Thanks for reading,

Saman M. Jaffery

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Given the rapid developments in technology, it is only a matter of time before the days of a paper-reliant law practice will be a thing of the past. Our office is doing its part by going paperless and, although a major change, it is one that we have embraced. 

That said, we still use paper for certain aspects of our work, including to file materials with the courts. An article in the September issue (Vol 20, No. 6) of the Canadian Bar Association’s National addresses the fact that while e-discovery and technology has changed the way we litigate, the courts in Canada are lagging behind. 

E-trials continue to be rare in Canada (in contrast to the US). The Honourable Mr. Justice Gans has reportedly commented on the issue, suggesting that reticence from some judges to use a document management system in a trial and the fact that the (Ontario) Ministry of the Attorney General has yet to get behind the initiative, means that pressure to move the courts towards more e-trials needs to come from the lawyers. 

The author advocates the benefits of having this available to us in the courtrooms, including saving trial time and assisting in making clearer arguments as it will likely be easier to knit all of the documents, videos and images of evidence together.   

Enjoy the weekend,

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

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Friends do things for each other. Some more than others. At what point does the help and assistance given by one friend to another give rise to a claim for unjust enrichment? This was the issue considered in the recent British Columbia decision of Brennan v. Gardy Estate, 2011 BCSC 1337.

As stated by the Honourable Madam Justice Fenlon, the main issue in the case was whether one friend's contributions "were of a kind and magnitude to establish unjust enrichment or were simply part of the mutual enrichment inherent in a close friendship."

Fenlon J. began her ruling by setting out the test to be met in order to establish unjust enrichment. This requires that the claimant establish:

            i.          An enrichment or benefit to the deceased;

            ii.          a corresponding deprivation to the claimant; and

            iii.         the absence of a juristic reason for the enrichment.

Fenlon J. undertook a careful assessment of the evidence with respect to each of these three criteria. She assessed the nature of the friendship and the services provided. She found that there was a benefit to the deceased from the services rendered; and because the claimant was not paid for his services rendered, there was a corresponding deprivation to the claimant.

However, the claimant was not able to succeed on the third criteria. The court cited case law to the effect that at this stage of the analysis, the courts can look at all of the “circumstances of the transaction” in order to determine whether there is any other reason to deny recovery. 

The Court observed that the claimant lived with the deceased and paid less than market rent while he lived there. Rather than a contract for services in exchange for rent, the court found that the claimant provided the services he did with a "donative" intent. In fact, the claimant acknowledged that he did not expect to be compensated for the services he provided to the deceased. Nor did he expect to receive any benefit from the deceased’s estate after his death. One witness described the relationship between the claimant and the deceased as one of "mutual caretaking". The Court noted that the claimant and the deceased gave to each other freely and generously. "In short, this was a case of mutual giving arising out of a close mutual friendship." This mutual giving was a relevant consideration in determining their reasonable expectations and the existence of a juristic reason for the conferral of the benefit in issue. 

In any event, Fenlon J. stated that even if there was no juristic reason for the conferral of the benefit, she would not have the remedy stage award damages to the claimant because of the benefits he received in return from the deceased which equalled or exceeded those he provided to the deceased.

Thank you for reading.

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

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When is a gift not a gift? When it is not accepted.

The issue of gifting and acceptance was considered recently in Leclair v. Canada, 2011 TCC 323.

There, a father gifted real property to his daughter. He did so, however, at a time when he was indebted to CRA. CRA assessed the daughter as being liable for the father’s unpaid taxes pursuant to s. 160 of the Income Tax Act. S. 160 renders a recipient of a transfer of property liable for the donor’s unpaid taxes if the recipient was a spouse, under 18 or a person with whom the donor was not dealing at arm’s length.

The court found that the daughter did not have knowledge of the transfer. Upon learning of it, and the father’s liability, she retransferred the property back to her father. 

The court considered a number of cases dealing with acceptance of or disclaimer of a gift, and case law to the effect that a failed testamentary gift is not caught by s. 160. It went on to hold that the same rules applied to inter-vivos transfers. A transfer of an inter-vivos gift must be a completed transfer, and not a failed or void transfer, and further, that intent and delivery by one party alone is insufficient to complete a gift. The gift in question was not accepted, and once the daughter had knowledge of it, it was repudiated within an acceptable time. The transfer back by the daughter amounted to a valid disclaimer of the gift, and she was found to not be jointly liable for her father’s tax debt.

Until tomorrow,

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

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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 Paul Trudelle. 

Click here for more information on Saman Jaffery. 

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Non-traditional families face particular challenges when dealing with estate planning. Some legislation does not fully apply to non-traditional marriage. For example, a spouse’s right to elect to take an equalization of Net Family Property upon the death of a spouse under Ontario’s Family Law Act, only applies to married spouses.

“The Gay Estate: Non-Traditional Families and the Law”, a blog maintained by Chris Tymchuck, a lawyer in Edina, Minnesota, provides helpful information for unmarried, gay, separated, divorced adoptive or “other unique families”: families who fall outside of the so-called “traditional” family structure (or as Chris says, “most of us”).

The informative site focuses mainly on the laws governing estate planning. However, it sometimes verges into other related areas. The well-laid out blog is organized by categories, making for easy access to information. The blog is well written, and the absence of legalese makes it easy for non-lawyers to understand.

Recent topics include the use of life insurance to provide for loved ones, and a two-part series on documents that should be in place in the event of death.

A very worth-while read.

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

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“No religion prohibits organ donation.”

This is according to an article posted on the Toronto Star’s “Health Zone”. The article by Barbara Turnbull entitled “Religious leaders confront myths that stop faithful from donating organs” notes that in the GTA, just 12% of the population has registered as organ donors.  This may be a factor of the GTA’s rich diversity of culture.

The prevailing belief among many religious groups is that preservation of the integrity of the body is required upon death. However, no religion prohibits organ donation, and many religious leaders from various faiths are working to change the prevailing public opinion.

The article quotes Jewish, Muslim and Hindu religious leaders: all of whom support organ donation. However, they note that much work must be done in order to overcome prevailing attitudes. “We have to change it so that it’s not only okay to do it, it’s not okay not to do it”, says Rabbi Reuven Bulka.

The article reports that 1,547 people are awaiting organ transplants in Ontario, and every three days, someone dies while waiting for a transplant. Hopefully, these numbers will change for the better.

Have a great Thanksgiving weekend. And please sign your organ donation card.

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

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The Honourable Justice I. Laskin provided some suggestions on factum-writing in his paper Forget the Wind Up and Make the Pitch: Some Suggestions for Writing More Persuasive Factums.  While I can't get into the detail I would have liked to in this blog, I have selected a few points that resonate with me.  They are:

- Put yourself in the position of the judge who knows nothing about the matter - identify and frame the key issue and think about the story you will tell around it so as to reach the best conclusion;

- Write an overview statement (one page maximum) that tells the court what the case is about, the issues and your position on them - the overview is important and gives judges the road map for the rest of your factum;

- State your point before you develop or discuss it;

- Ensure the pages have enough white space, as it improves the visual impact;

- Story-telling is persuasive - first tell the court why you should win (how you present the facts) and then how to get there (how you present the law);

- Candour is essential - be fair to the record, don't overstate your claims, face up to your weaknesses and don't denigrate your opponent's case;

- Avoid using "it is respectfully submitted" more than twice, avoid false intensifiers, avoid the word "not" and avoid excessive us of the passive voice; and

- Last but not least - be concise.

Thanks for reading,

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

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When commencing dependant support applications that involve minors, a few things to keep in mind are:

·                    In Toronto, applications are to be brought on the Estates List;

·                    Although it is a good idea to commence an application within the six-month limitation period from the issuance of probate, minor children’s claims are not bound by this limitation period; that said, if an estate is administered prior to the claim being commenced, the relief sought may be difficult to obtain;

·                    Where one dependant commences a claim, insofar as the limitation period is concerned, it is deemed to be an application on behalf of all persons who might apply;

·                    Minor children can not sue or be sued without a litigation guardian in place - the title of proceeding should reflect this and the materials filed should comply with the requirements of Rule 7 of the Rules of Civil Procedure;

·                    The proper respondent in a dependant support application is the estate trustee, not the beneficiaries, although the beneficiaries must be served with the application materials; and, where a minor is a beneficiary, The Children’s Lawyer must be served with the materials; and

·                    If writing to The Children’s Lawyer prior to commencing a dependant support claim, it is helpful to include a family tree, the names and birthdates of the children, copies of relevant documentation, a copy of probate, detailed financial information about the child’s surviving parent and a summary of the facts.

Additional information about The Children’s Lawyer and its role in respect of dependant support claims can be found in the materials from The Dependant’s Support Application: From Notice of Application to Trial, held on September 27, 2011.

Have a good day,

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

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 Listen to: Hull on Estates Episode #263 POA Issues 

This week on Hull on Estates, David Smith and Nadia Harasymowycz discuss Power of Attorney issues and investing in a Power of Attorney.  In particular, they discuss what obligations there are for the Power of Attorney for Property to the incapable person, but also to the incapable person's estate.

If you have any comments or questions, please 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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A paper on Interpretation Applications recently presented at Practice Gems: The Administration of Estates 2011: Avoiding the Pitfalls contains a discussion of the nature of such applications and their procedural implications. As part of the discussion, case law applicable to the types of questions that can be asked of a court in interpretation applications is reviewed.  A short summary of the points made in the paper are:

- applications for the opinion, advice and direction of the court are effective procedures to clarify ambiguous provisions of a testator's will;
- both the substance and form of the questions brought before the court are crucial to a successful application;
- the questions should only deal with practical problems, rather than academic or future concerns;
- the questions should be structured to receive a "yes" or "no" answer; and
- judges are not prepared to assume the role of the estate trustee - they are concerned with fundamentally legal matters and will not usurp the executor's responsibilities.
 
The test for rectification is also briefly reviewed - the equitable power of the court to correct errors or ommissions which compromise the testator's true intentions.

All in all this is a succinct and helpful paper for practitioners to review when commencing interpretation applications.

Have a good day,

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

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On September 14, 2011 at Practice Gems: The Administration of Estates 2011: Avoiding the Pitfalls, Brian J. Wilson and Gwen A. Benjamin presented a paper on tax planning and liability in the context of estate administration.  A few reminders I picked up from their paper that I thought would be helpful to note are the following:

·                    the general rule is that capital property of a taxpayer is deemed to have been disposed of immediately before death for fair market value;

·                    the most general exception is where property is transferred and vests in a spouse or common law partner;

·                    a terminal return must be filed for the taxpayer;

·                    penalties for late filing will apply if a return is not filed - 5% of tax owing to a maximum of 17% (interest accrues and compounds daily);

·                    estate trustees are jointly and severally liable to pay any taxes, penalties and interest owing to the extent that they are in possession and control of the estate property;

·                    beneficiaries may also be liable to the extent of assets received for the tax liability of the deceased/estate;

·                    tax planning is required when there are ongoing trusts and in respect of the “deemed disposition” rules that arise in respect of trusts in wills; and

·                    an executor is entitled to make a special election to apply capital losses that arise in the first tax year of the estate to the deceased’s terminal return, thereby reducing capital gains arising on death from the loss.

The authors address these and other points in greater detail, which makes it a worthwhile paper to have at the ready.

Thanks for reading,

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