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

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

The passing of time is something that we speak a lot about in the Estate litigation. The last days, the last months and the last year of a person’s life are often at the core of the family dynamics influencing our field of litigation. 

A friend recently sent me this link. Although only slightly under 3 minutes in length, I was reminded of how many media gripping events happened this year, and how quickly they can slip our minds. 

If you took a few moments to analyse the moments in the last year that resonate with you and your family, what would those moments be? For me, this year will be remembered for a trip to Europe, the birth of a dear friend’s daughter, and my brother’s wedding. Certainly 2012 has some big shoes to fill! Yet, before you make next year’s resolution, and as you get ready to put on our sparkly clothes, fill up the champagne flutes, watch the ball-drop in Times Square for over the 100^th time, and ring in the New Year, I challenge you to reflect on 2011 to see what really struck a chord. Perhaps your hopes and dreams for next year just might find a new direction. 

Have a wonderful New Year’s Eve. Stay tuned for next year,

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

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

Listen to: Hull on Estates Episode #274 - Charitable Giving

This week on Hull on Estates, Paul Trudelle and Saman Jaffery discuss Charitable Giving and Estate Planning.

If you have any questions or comments, please send us an email at hull.lawyers@gmail.com or visit our blog at estatelaw.hullandhull.com

Click here for more information on Paul Trudelle

Click here for more information on Saman Jaffery

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

The day I got called to the Bar, I distinctly recall the feeling of putting on my robes. It was a feeling of responsibility and of honour. I felt like a slightly different person, someone charged with maintaining the integrity of our profession. Living up to those expectations is something I think we are reminded of every time we put on our robes, if not everyday in the office. What I’ve come to learn is that the robes speak to others the same way they spoke to me. They are a symbol of our profession, and by putting them on, others acknowledge our role as advocates. The Judges, by putting on their robes, take on an even greater role, and in my experience subscribe to the old adage; “With power comes great responsibility”.

When inside a courtroom, dressed in our robes and asking the Court to assist our clients, it almost becomes easy to forget that outside of those storied walls, all of us, including the judges, have our personal quirks, unique interests and particular motivations. The Supreme Court Historical Society an American private non-profit organization dedicated to the collection and preservation of the History of the Supreme Court of the United States, has recently released a cookbook, which in my view demonstrates clearly the humanity of those charged with one of society’s greatest roles. 

The cookbook is a very personal tribute to the husband of Justice Ruth Bader Ginsburg, Associate Justice of the Supreme Court of the United States. Justice Ginsburg’s husband, Marty Ginsburg, a lawyer, professor and amateur chef, passed away last year of cancer. Several spouses of the Justices, under the spearheading of Martha-Ann Alito, the wife of Justice Samuel Alito, gathered recipes and traditions to bring the book to publication. After review of an article on CNN, it seems that the book tells a story that goes beyond the recipes it includes. It tells the story of Judges and their families, and by reading between the lines, some of their quirks. This is a rare glimpse into the lives of those making some of the most important decisions south of the border, and yet, a sure indication that our personalities are not checked at the door.

Even in litigation, as with in all aspects of life, it’s important to remember that everyone in the room carries their own unique experiences. At the end of the day, we all have to go home and make dinner.

Thanks for reading,

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

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

I’m sure that for at least some of you, you are reading this blog in an attempt to escape the craziness of the holidays, taking a few moments for yourself at your computer before more family chaos sets in. 

To bring you back to the legal world, even if for a brief moment, I’d like to share a blog I recently came across which discusses the Top 10 most consulted cases on CanLII in 2011. As we have all become increasingly reliant on internet research, regardless of our field of study or practice, understanding the operational side of this availability is helpful. From a pure entertainment view of things, I for one, love to know what people find interesting. There’s no better way to do that, that to see what they are looking at. For ease of reference, I’ve reproduced the list below:

1. Bruni v. Bruni, 2010 ONSC 6568
2. Indalex Limited (Re), 2011 ONCA 265
3. Dunsmuir v. New Brunswick, 2008 SCC 9
4. Bedford v. Canada, 2010 ONSC 4264
5. R. v. Grant, 2009 SCC 32
6. Kerr v. Baranow, 2011 SCC 10
7. R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103
8. R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326
9. Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817
10. Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 SCR 217

At the top, the Bruni case, a 2010 family law matter, received 18,641 views and the Secession Reference, a famed constitutional case from 1999, rounded out the list by receiving 5,105 views. Though the fields of law searched show some diversity, unfortunately, it seems that the estate litigation field saw no notoriety on this list. Perhaps next year our popularity may increase. Then again, maybe not. 

Until Tomorrow,

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

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

Who doesn't love a good rags to riches tale, especially at this time of year?  Well, some of you may be a bit envious of this one.  Probably because it starts with Tommaso, a stray cat in Rome, and ends with Tommaso, the pampered feline worth $13 million.

Reportedly, Tommaso inherited the money when his owner, Maria Assunta, recently died at the age of 94.  Assunta was the widow of a property tycoon, and had no living relatives.

The estate's lawyer arranged for the assets and the cat to go to Assunta's former nurse (in Italy one can not gift assets directly to their pets), who now lives in an undisclosed location.  Unsurprisingly, there have been lots of offers to adopt Tommaso.

Tommaso is the richest cat in the world (and third amongst the wealthiest pets). Top ranking goes to Gunther IV, a German shepherd who reportedly inherited $372 million dollars from his father, Gunther III, the beloved companion of an eccentric German countess.  Kalu the Chimp finishes in second place by virtue of an $80 million dollar inheritance. 

Other rich animals are those of Oprah Winfrey, who is apparently planning to leave her dogs $30 million.   Leona Helmsley famously left $12 million to her little dog Trouble, although after a challenge to this gift, Trouble's pot was cut to $2 million.  And Michael Jackson left Bubbles the Chimp $1 million.

I can hardly imagine what kind of fanciful Christmas present Tommaso will be getting, although I'm glad my doggie will be happy with a run in the park with her friends, and lots of hugs and kisses.

Merry Christmas and Happy Holidays!

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

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

In a recent Québec decision, Ms. Rodrigues, the young widow of the late boxing champion, Arturo Gatti, has succeeded in her battle over her late husband’s estate.  

We previously blogged on this case in 2009 and 2010, as it wound its way through the court system. At issue was the validity of two Wills.  The more recent Will left the entire estate to the widow, which Will she was seeking to have declared valid. 

Mr. Gatti’s family contended, however, that an earlier Will was the valid last Will, which left the bulk of the estate to Mr. Gatti’s mother.  Importantly, the signed prior Will was never located. 

The Court found that the last Will was valid, and that Ms. Rodrigues did not manipulate Mr. Gatti into signing it.

The decision does not end the legal troubles for the estate and the family, since it is reported that there is a court date coming up in New Jersey to deal with a wrongful-death suit by Mr. Gatti’s former girlfriend Erika Rivera, the mother of his daughter, Sofia, and there is a trial pending in Florida involving a man suing Mr. Gatti for injuries he allegedly received from the late boxer.

Thanks for reading,

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

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

Conflict of laws issues add complexity to what could otherwise be a straightforward estate administration. In a recent English article on the topic, examples of how cross-border issues can affect the operation of your will are provided. The most common issue noted is that of forced heirship.

Several European and other countries have forced heirship laws requiring a person to pass a fixed portion (typically between a third and one half) of his or her estate to children or a spouse. However, these succession laws may not always apply.   For instance, the author notes that when it comes to ones assets abroad, English courts apply domestic succession law to movable assets (i.e. investments, cash, bank accounts, personal possessions etc.) but may follow the succession law of the country where immovable assets are (i.e. land and property). 

In addition to the conflicts than can arise from cross-border issues affecting your will, there may also be added tax consequences.

Ways to minimize difficulties include:

                    making an additional will abroad for foreign assets, as this may eliminate language ambiguities and make it quicker and less costly to deal with the administration of your estate (any foreign will should not conflict with or revoke your domestic will - careful wording is often needed); and

                    obtain legal advice from foreign lawyers who specialize in the field of their own succession laws, both when making your will and when purchasing property abroad.

Thanks for reading,

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

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

If you are considering making a large donation to charity, but are unsure if you want to give up the use or benefit of the asset during your lifetime, a charitable remainder trust may the correct vehicle to implement your wishes. In its most basic form, a charitable remainder trust is created when you transfer an asset to charity, but retain the use of or income derived from the asset for your own lifetime or the lifetime of another. It permits the donor to ensure that a designated individual will have a steady stream of income for life, with the knowledge that ultimately the donation they have given will go to the charity of their wishes. A charitable remainder trust can be either inter vivos or created through a Will, and can be created so that the benefit is received by the person who created it, or by someone else such as a family member.
 

The main benefit of creating a charitable remainder trust is that even though you retain the use of or income derived from the property, the tax benefit of the transfer is immediate. The Canada Revenue Agency has stated that an immediate tax receipt is available to a person creating a charitable remainder trust provided that the transfer was done voluntarily, that the property vests in the recipient charity at the time of the transfer, the transfer is irrevocable, and the recipient charity will eventually receive full ownership and possession of the property. The ability to receive a tax receipt for donating money to charity, yet still retain the ability to use the property or derive income from it, may be a huge incentive to a person considering leaving a large amount of money to a charity to do so through the use of a charitable remainder trust.
 

The attractiveness of charitable remainder trusts as a potential revenue source for charities has lead many leading organizations in Canada to dedicate pages on their websites to advise potential donors of the availability of the charitable remainder trust as a potential donation tool. Organizations such as the Canadian Red Cross, Feed the Children Canada, the Alzheimer Society, and McGill University all have pages on their websites dedicated to encouraging potential donors to use charitable remainder trusts as a tool to implement their donation.
 

While the use of a charitable remainder trust may not be for everyone (the Cancer Society encourages only those leaving gifts of $100,000 and more to use it to offset the administrative costs associated with it), the ability for a person to receive the tax benefit of a charitable donation immediately, yet still be able to retain an interest in the property, may be a highly attractive option. If you are considering donating a large amount of money to charity either during your lifetime or in your will, perhaps a charitable remainder trust is the correct vehicle to implement your wishes.
 

Ian Hull - Click here for more information on Ian Hull. 

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

This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag add to our Hull & Hull LLP recommending reading list with the book "Cross-Border Family Mediation". This book touches on cross border family mediation in regards to custody and access issues. Ian and Suzana also discuss holograph wills and the issues that surround them, particularly in Canada, and canvas where they may occur.

If you have any comments or questions please visit our blog at hullestatemediation.com or send us an email at hull.lawyers@gmail.com

For more information on Ian hull, click here
For more information on Suzana Popovic-Montag, click here

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

Mele Kalikimaka is the thing to say
On a bright Hawaiian Christmas Day.
That's the island greeting that we send to you
from the land where palm trees sway.
- Mele Kalikimaka, as sung by Bing Crosby, or Don Ho, or Jimmy Buffett, or the tormenting little gremlin in my head at 3 a.m.  Take your pick.

It all started on November 1st, 2011.  I am referring, of course, to the launch of "Continuous Christmas music" on Star 102.5, your friendly station from across the puddle in Buffalo, New York.   I was in the car, surfing radio stations, when I made the grave error of landing on 102.5 FM.  With the kids in the backseat.  No putting the toothpaste back in the tube on that one.  Every day since then (when did Christmas morph into an 8-week affair, I ask you?) I am forced to listen to Madonna's DNA-unraveling attempt at "Santa Baby", the thankfully-only-occasional "Last Christmas" (WHAM.  Oh George - why didn't you answer any of my fan mail in high school?) and the radiator-rattling Mannheim Steamroller.  And then it happened, really, I'm not sure how, but it just did: Mele Kalikimaka was stuck in my head.  Didn't matter if I was working, vacuuming, driving, cooking... that piece of tropical treacle was doing laps in my head and there was no off-ramp in sight.   

James Kellaris, associate professor of marketing at the University of Cincinnati refers to this phenomena as 'getting bitten by an earworm'.  As detailed in an article in the December issue of Mental Floss magazine, "certain pieces of music may have properties that excite an abnormal reaction in the brain - a cognitive itch".  We rehearse the tune in our heads in order to scratch said itch, but the outcome is a form of perseveration hell - you have, in fact, exacerbated the itch so that the rehearsal becomes involuntary and you are trapped, like me, on a bright Hawaiian Christmas Day.  According to Kellaris, songs that are simple, repetitive or have some aspect of incongruity in them are most likely to get stuck.

Fear not, my friend.  For every problem, there is a solution.  Kellaris states that the best cure for an earworm is to unleash an 'eraser tune'.  He theorizes that the eraser tune devours the earworm by 'combining the benefits of both distraction and replacement.'  Prudence dictates that the eraser tune of choice is itself not too sticky.

Whoomp...     ...there it is.

Jennifer Hartman, guest blogger

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

Given our aging demographic, it is becoming increasingly common for seniors to outlive their income.  A not uncommon scenario is one in which a senior wishes to continue to live at home, has insufficient income to support herself, yet has significant equity in her home. What options are available? 

A recent article posted online in the Globe and Mail considered the availability of two different options: (i) a Reverse Mortgage and (ii) a Home Equity Line of Credit ("HELOC"). Both offer a way to borrow money and defer repayment to some degree until the home is sold.

With a HELOC you can borrow up to 80 per cent of the equity in the home at the lowest cost possible.  HELOCs are typically priced at prime, which is currently 3 per cent, plus an additional 0.5 to 1 percentage points. 

The HELOC is usually the preferable choice because of the way that interest is charged with both borrowing options. With a reverse mortgage, you are not required to repay the debt until the home is sold; however interest is applied not only to the principal, but also to the unpaid interest - which will continuously accumulate over time.

A HELOC, on the other hand, requires monthly payments of at least the interest owed on the loan. For example, if you borrow $100,000 on a HELOC at 3.5 per cent interest every month, you will be required to pay about $300 each month in interest. Repayment of the principal is optional. Of course, in order to make the monthly payments, you will need to have a separate stream of income – if you use the line of credit to pay the interest, then you are still paying interest on interest, and in the same position as you would be if you had a reverse mortgage.

Moira Visoiu

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

I had the opportunity to listen to an interesting speech at the Estates Summit recently on the topic of predatory marriages.  A marriage is predatory when one party enters it to take advantage of the other party's diminished capacity for the purpose of gaining access to their assets.  These so-called marriages are hard to challenge, because the test for the capacity to marry is low. 

The children of the exploited party may be surprised to find that their parent's marriage later in life changes their right to the inheritance.  The exploited party may be unduly influenced into leaving everything to their new spouse.   Even if the Will remains unchanged after the couple exchange their vows, a spouse still has the right to elect to take an equalization payment from the Estate under section 6(1) of the Family Law Act.  If the exploited party dies without a will, their spouse is entitled to the property absolutely if the Estate is worth less than $200,000 under section 45(1) of the Succession Law Reform Act.  If the Estate is worth more than $200,000, the spouse still gets a preferential share to the first $200,000.  

What can be done to protect elderly people from being exploited?  On the one hand, raising the legal capacity to marry could prevent some predatory marriages.  On the other hand, raising the capacity to marry could take away the right of people with certain disabilities to get married, when the fact that someone has a mental disorder does not necessarily mean that they are being exploited in a relationship. 

Somehow, a balance must be struck.  If you have any thoughts on this topic, please feel free to share them as a comment.

Holly LeValliant - Click here for more information on Holly LeValliant. 

* The title of this blog is attributed to lyrics by Kanye West

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

One of the unique challenges of estate litigation is that the star witness is, almost always, dead.  How do we then address the myriad of allegations that can be made against the Deceased or his or her Estate - which are unfortunately easy to make and expensive to defend - when an estate trustee has limited information available to defend against such allegations?

Section 13 of the Evidence Act R.S.O. 1990, c. E.23 specifically addresses this unique aspect of estate litigation, and aims to prevent claims against estates that are based on mere allegations.  This provision requires that there be independent corroboration of evidence in claims against estates. 

Section 13 of the Evidence Act provides, as follows: “In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.”

In the recent Ontario Superior Court decision in Botnick et al. v. The Samuel and Bessie Orfus Family Foundation et al., 2011 ONSC 3043 (“Bessie Orfus Estate”), the Honourable Mr. Justice Penny considered Section 13 of the Evidence Act in the context of a summary judgment motion. 

Following the Ontario Court of Appeal’s decision in Burns Estate v. Mellon, 2000 CanLII 5739 (ON CA), Justice Penny stated that “Section 13 of the Evidence Act requires that there be corroboration of material facts alleged by an opposite or adverse party of any matter occurring before the death of the testator.  This requirement exists to address the obvious disadvantage faced by the dead: they cannot tell their side of the story or respond to the livings’ version of events.”

Justice Penny went on to provide the following direction to litigators: “Not every particular of the party’s evidence need be corroborated but the material evidence in corroboration must be independent of the opposite or adverse party and must appreciably help the judicial mind to accept one or more of the material facts deposed to.  It must materially enhance the probability of the truth of the adverse party’s statement.”

The decision in the Bessie Orfus Estate reminds us that in all stages of prosecuting or defending a claim against an estate – whether determining the initial terms of an Order Giving Directions, considering a summary judgment motion, preparing for mediation, examinations, productions, trial, etc. - one must keep in mind the requirement of corroboration under Section 13 of the Evidence Act. 

Thanks for reading,
Saman M. Jaffery

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

 Listen to: Hull on Estates #273 - Summary Judgment Rule Decision

This week on Hull on Estates, David Smith and Holly LeValliant discuss the Summary Judgment Rule decision.  More specifically, what is the significance of the decision and whether it will expand the use of summary judgment.

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

Click here for more information on David Smith. 

Click here for more information on Holly LeValliant. 

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

For those of us with young children (or perhaps, not so young children), one of the many things that may be on our “to do” lists before December 31st is to contribute to a Registered Education Savings Plan (“RESP”).

As most of us know, RESPs allow for tax-efficient savings for a child’s post-secondary education.  There are two types of RESPs: a family plan RESP or an individual plan RESP.  With a family plan, a subscriber can name one or more children as beneficiaries, with the requirement that each beneficiary be related by blood or adoption to the subscriber. In an individual plan, only one child can be named as a beneficiary, and there is no requirement that the beneficiary be related to the subscriber. In addition to other incentives, when a subscriber contributes money to an RESP, the federal government will deposit an additional amount – the Canada Education Savings Grant (“CESG”) – equal to 20% of the contribution up to certain limits. The maximum CESG each year is $500 (equal to 20% of a contribution of $2,500) and the lifetime CESG limit is $7,200.  A subscriber can contribute any amount to an RESP, subject to a lifetime contribution limit of $50,000 per beneficiary. Contributions can be made to an RESP for up to 31 years, and an RESP can remain open for a maximum of 35 years.

However, what most of us do not know is what happens to an RESP on the death of the subscriber.  The answer depends largely on the terms of the subscriber’s Will, if any, and on the terms of the RESP contractual agreement. 

Unlike an RRSP, RRIF, or a TFSA, the proceeds of an RESP do not flow outside of the subscriber’s Estate into the hands of a designated beneficiary. Regardless of who is named as the beneficiary of an RESP, the RESP forms part of the subscriber’s Estate, and should be administered in accordance with the Will, if any, or the laws of intestacy.

While the subscriber is alive, ownership and control of the RESP remains with the subscriber.  An individual and his or her spouse may be joint subscribers of an RESP.  Where there are joint subscribers, in the event that one subscriber dies, the surviving spouse will become the sole subscriber.  In the event that the sole subscriber dies, the subscriber’s Estate becomes the subscriber.  

A subscriber of an RESP should therefore give consideration to whether it is prudent to include directions in his or her Will naming a successor subscriber (if the RESP is to be continued), and how the RESP is to be dealt with (e.g., how the RESP will be funded and invested, whether there are to be limits on withdrawals, etc.).  It is also prudent for joint subscribers to agree on how the RESP is to be dealt with on the second of their deaths and whether they wish to have mirror RESP clauses in both of their Wills. 

If the RESP is not subject to a specific direction in the Will or there is no Will, an executor will have to make some difficult and complicated decisions respecting whether the RESP can be maintained or whether the funds in the RESP must otherwise form part of the residue of the Estate.  For a thorough discussion respecting options for an executor dealing with an RESP where no direction is provided in a Will, I suggest Anne Werker’s article “Death, Taxes and Registered Education Savings Plans” (Hull & Hull Probater, May 2004).

Thanks for reading,
Saman M. Jaffery

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

When you conjure up the image of what a "Will" is supposed to look like, you likely imagine an impressive formal document with large cursive script that proudly declares "This is the Last Will and Testament of" at the top. The kind of document that would not look out of place in a 16th century manuscript, or in an old Victorian library with dust on top. At the very least, you likely imagine a formal document created to comply with rigid rules about its execution and who must be there to witness it.
 

What you may not know however is that while this formal will still has an important place in our laws, it is not the only kind of will that the law will recognize. Holographic wills are one of the exceptions to the classic formal will, and offer an interesting insight into non-traditional testamentary documents.  In Ontario, section 6 of the Succession Law Reform Act states that "A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness." A will created pursuant to these provisions is known as a holographic will. Put simply, a holographic will is a will that is entirely in handwriting of the testator that does no have to meet the formal requirements regarding execution that a traditional will does. So long as the will is entirely in the handwriting of the testator, signed by the testator, and has a "donative intent", the holographic will can be held to be the Last Will and Testament of the deceased.
 

Perhaps the most famous example of a holographic will in Canada is that of Cecil George Harris, a Saskatchewan farmer who in 1948 carved his will into the bumper of the tractor that he was pinned under. Using a small knife, Cecil carved "In case I die in this mess, I leave all to the wife. Cecil Geo Harris." Unfortunately for Cecil, he did not survive the incident. When the carving was discovered several days later by one of Cecil's neighbours, the bumper was removed and brought to the court, where it was determined to be a valid holograph will. The bumper has now achieved a sort of celebrity status within the legal community, and is currently on display at the University of Saskatchewan Law Library.
 

Examples such as that of Cecil are not relegated to the history books. A local CBS affiliate in Houston, Texas recently reported on a man who, after being stuck in his car at the bottom of a ravine for three days, wrote his will on the console of his car. While thankfully the man was rescued, had he not been, it is likely that the will he wrote on his car's console would have been accepted as his Last Will and Testament. The document was wholly in his own handwriting, was signed at the end, and had a "donative intent".
 

Though these two examples are rather extreme (as a simple piece of paper will do), they do a good job at showing the lack of rigidity that the courts are willing to accept when it comes to non-traditional testamentary instruments and holograph wills. So long as the document is entirely in the handwriting of the testator and is signed at the bottom, the document will meet the formal requirements of a holograph will and may be admitted to probate.
 

Ian Hull - Click here for more information on Ian Hull. 

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

Inheriting the estate residence can mean inheriting problems as this article in the National Post points out.  An in specie gift of the estate residence that is encumbered by a mortgage is a wrinkle that runs counter to the usual practice of paying the debts of the estate before making a distribution.

Testators should ensure that, when leaving their home, they don’t also leave a financial burden for their beneficiary.  As quoted in the article: “The beneficiary doesn’t have to assume the mortgage-debt obligation. You can say ‘No, I don’t want the mortgage.’ But, you don’t have a choice of taking half of the gift...You either take the house with the mortgage or you don’t take the house.”

One option to avoid leaving mortgage debt is credit protection insurance.  The National Post quotes a director of mortgage advice: “A credit protection plan is part of your bigger financial plan, not just around your mortgage...“The credit protection allows you to have insurance on your mortgage. As you pay down your mortgage, in case you suffer critical illness or on your passing, the mortgage outstanding balance is paid off.”

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

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

In D. Crupi & Sons Limited v. Travelers Guarantee Company of Canada et. al. the Ontario Superior Court of Justice referred to proportionality in discovery.  The Court considered that, while the former case law says that the Rules provide for questions "relating to any matter in issue",  the new Rule  29.2.03 amendment to "relevant to any matter in issue" suggests that the scope of examinations for discovery has been narrowed. 

The Court stated: "In determining the issues on this motion I have applied the relevance test set out in Rule 31.06. I am also mindful of the proportionality considerations set out in Rule 29.2.03. The general principles regarding the scope of discovery are set out in Ontario v. Rothmans Inc., [2011] O.J. No. 1896 (S.C.J.)..."   This case included among its principles: 

• The scope of the discovery is defined by the pleadings; discovery questions must be relevant to the issues as defined by the pleadings;
• The examining party may not go beyond the pleadings in an effort to find a claim or defence that has not been pleaded (i.e. "fishing expedition");
• The extent of discovery is not unlimited, and in controlling its process and to avoid discovery from being oppressive and uncontrollable, the court may keep discovery within reasonable and efficient bounds.

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

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

Listen to: Hull on Estates #271 - Section 72 of the Succession Law Reform Act

This week on Hull on Estates, Paul Trudelle and Natalia Angelini discuss dependant support claims and the impact of assets falling under Section 72 of the Succession Law Reform Act.

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 Paul Trudelle. 

Click here for more information on Natalia Angelini. 

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

In a very significant, just released decision (encompassing five appeals heard together this past summer), Combined Air Mechanical Services Inc. v. Flesch, a five judge panel of the Ontario Court of Appeal has interpreted the amended summary judgment rule. Prior to the amendment to Rule 20, summary judgment was available in two types of cases: (i) When the parties agree that summary judgment is appropriate and (ii) cases where the claims or defences have no merit.
 

This decision introduces a third category: (iii) where a trial is not required "in the interests of justice." This third category of cases introduces the "full appreciation test". Under the test, the motion judge decides whether, in the interests of justice, he or she can fully appreciate the evidence and issues by summary judgment or whether a full trial is required.  In other words, is a trial necessary to enable the court to fully appreciate the evidence and issues in the case?  If there are multiple witnesses, multiple facts in dispute, or voluminous documents, a summary judgment motion cannot substitute a trial.  If there are few witnesses or limited facts in dispute, a summary judgment motion may be successful.

The court found that "simply being knowledgeable about the entire content of the motion record is not the same as fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute."
 

Before deciding if the court will use its expanded powers under Rule 20.04(2.1) to weigh evidence, evaluate credibility and draw reasonable inferences, the motion judge must apply the full appreciation test. The motion judge will decide if the motion record (which can be supplemented by oral evidence under Rule 20.04(2.2)) fully satisfies him or her that the issues are dealt with appropriately by summary judgment.

Holly LeValliant - Click here for more information on Holly LeValliant. 
 

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

The New York Times reported yesterday that 28-year old pre-eminent NHL enforcer Derek Boogaard did indeed have chronic traumatic encephalopathy (CTE) at the time of his accidental death in May of this year.  Boogaard is now the fourth of four former NHL players examined to show evidence of CTE. 

CTE is a form of progressive, degenerative damage to the brain caused by repetitive closed head injuries (i.e. ‘blows to the head’).  It is characterized by the buildup in the brain of an abnormal protein called tau which tends to form in clumps and disrupt brain function.  Part of Ann McKee's job is to solicit suitable brains for examination for the presence of CTE.  McKee is the co-director of the Boston University School of Medicine Center for the Study of Traumatic Encephalopathy, colloquially referred to as the Boston Brain Bank.  Within 24 hours of Boogaard's death, a phonecall had been placed from the Center to Joanne and Len Boogaard, requesting the brain of their son.  The Boogaard family readily agreed.  Sadly, in the span of time between the donation of the brain and the release of the results of the autopsy, NHL enforcers Rick Rypien and Wade Belak both lost their lives, reportedly due to suicide.  

While the presence of CTE in Boogaard is not unexpected, what did take researchers by surprise was the advanced degree of damage in someone so young.  “To see this amount? That’s a ‘wow’ moment,” McKee reportedly said when she viewed images of Boogaard’s brain tissue.  Had Boogaard lived, he likely would have developed middle-aged dementia as a result of the trauma to his brain. 

The last few years of Boogaard's life were tragic; blurred by post-concussion syndrome, a descent into alcohol abuse, a dependence on painkilling narcotics like Oxycontin and Percocet, self-neglect, repeated stints in rehab and ultimately, pervasive loneliness.   His legacy, however, will lie in the specter raised by the advanced CTE discovered in his young brain. As the Brain Bank's census of CTE-positive ex-NHL brains continues to grow, will the NHL change its tune about the link between hockey and CTE?  (According to NHL Commissioner Gary Bettman "it's way premature to be drawing any conclusions at this point.")  How will the NHL respond to this news?  How will it respond now to calls to rein in on-ice fighting? 

Let the debate continue.

Jennifer Hartman, guest blogger

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

The decision to transfer wealth within a family before death is complicated by the inherently emotional nature of family dynamics. This issue was considered in a recent article in the Financial Post.

The article noted that a survey done by the Royal Bank of Canada found that 61% of Boomers planned to pass on money during their lifetime.

David Foot, author of Boom, Bust and Echo, is quoted: “Basically inheritances tend to go to one generation, they seldom skip a generation. But for the twenty somethings today if the inheritances skip a generation it will be their grandparents giving them money,” says Mr. Foot, noting the phenomenon is already taking root. “The people with a lot of the wealth are 75 plus or even 65 plus, ahead of the Baby Boomers.”

Commentators note that family wealth can be enhanced by early gifting.  One example is where parents assist children in accelerating the payment of their mortgage thereby enhancing family wealth by the reduction of non-deductible debt.  Another benefit of inter vivos gifts is the simple fact that the reduction in the size of an estate reduces the tax implications of deemed disposition of assets.

On the downside, parents may fear gifting money to a child and then losing the cash because the money is invested in a matrimonial home that may become the subject of family law proceedings.

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

  .

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

An article from the website of UK’s Guardian reports that Lisa Johansen claims to be Elvis’s daughter, and that she has sued Elvis’s estate for $130m. 

According to the report, Ms. Johansen, 43, claims that she was sent to Sweden for her own safety in 1977, following Elvis’s death (Elvis is believed by many to have died on August 16, 1977.) She claims that she was replaced by the “imposter”, Lisa Marie Presley. 

In a 1998 book, “I, Lisa Marie: The True Story of Elvis Presley’s Real Daughter”, Ms. Johansen tells the story of how Priscilla Presley left the US after Elvis died, taking a young Ms. Johansen with her. Safely out of the US, Ms. Johansen assumed a new identity.

According to the article, Ms. Johansen visited Graceland in August, and told staff of her alleged relationship to Elvis. This led to a lawyer issuing a warning to Ms. Johansen to cease her “malicious false claims and offensive wrongful conduct”. Ms. Johansen countered with the $130m lawsuit for defamation and infliction of emotional distress. 

According to the article, Ms. Johansen has now consented to a DNA test. The results have not yet been released. 

Stay tuned.

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

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

Listen to: Hull on Estates Episode #270 - General Trust Concepts 

This week on Hull on Estates, David Smith and Nadia Harasymowycz discuss General Trust Concepts and Issues while giving a brief and general overview.

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 David Smith. 

Click here for more information on Nadia Harasymowycz. 

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

In Re Brooks Estate, 2011 BCSC 1606 (CanLII), a testator left a handwritten will in which he left his real property and two bank accounts to his “brother … Executor with Power of Attorney”. He goes on to list five other people and states “I would all the people named above to share equally in my estate [sic].”

The Estate Trustee applied for directions on the interpretation of the Will. Did the real property and accounts pass to the brother, or where they to be divided equally amongst the brother and the five other named beneficiaries?

Important to the decision was the fact that the real property and accounts made up the bulk of the estate.

What did the court do? The court found that the estate was to be divided amongst the five named beneficiaries and the Estate Trustee. The court noted that extrinsic evidence could be used to interpret the Will if there was ambiguity, and held that the only extrinsic evidence of relevance was the fact that there were no significant assets other than the real property and the accounts. The testator, the court held, must be presumed to know what his estate consisted of, and that there would be no significant residue beyond the specified assets. 

In any event, the court held that extrinsic evidence was not required, as there was no ambiguity. The testator referred to “my estate”. “In the absence of any further language limiting their application, the plain and ordinary meaning of those words is that all individuals named in the will share equally in the entire estate.”

Costs of all parties were ordered to be paid from the estate. The modest estate had a value of approximately $275,000. Presumably, the costs of the parties absorbed a significant part of the estate: costs which could have been avoided by a properly drafted will. Perhaps a better title for this blog would be “The Perils of a Handwritten Will.”

Thank you for reading.

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