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

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Listen to: Hull on Estates Episode #281 – Discussing “A Judge’s View”

This week on Hull on Estates, Natalia Angelini and Saman Jaffery talk about a paper by The Honourable Mr. Justice Joseph W. Quinn. The paper, A Judge's View: Things Lawyers Do to Annoy Judges; Things They Do to Impress Judges, discusses things like correctly estimating the time of a trial or long motion, understanding the “geography” of the courtroom, and using consistent terminology throughout an order. The paper can be accessed here.

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

Click here for more information on Natalia Angelini.

Click here for more information on Saman Jaffery. 

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

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This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag discuss "LinkedIn and Blogs for Lawyers", a book by Adrian Dayton and Amy Knabb. Additionally, Ian and Suzana address Passing of Accounts and the importance of Fiduciary Accounts.

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Dependant's Support Claims can often a long and drawn out process, full of bitter infighting and disputes between the alleged dependant and the beneficiaries over how much (if any) should be paid for support. The length of time often involved in a litigious support claim can have an obvious dilemma. If a person is truly a dependant of the deceased it means just that, that they are dependant on the deceased for their well being. If a person is truly dependant in every sense of the word, how will they support themselves while the application is still before the courts? Thankfully for a dependant in this situation, the Succession Law Reform Act allows the court to make an order for interim support pending the completion of the rest of the application.
 

Section 64 of the Succession Law Reform Act provides:
"Where an application is made under this part (Part V) and the applicant is in need of and entitled to support but any or all of the matters referred to in section 62 or 63 have not been ascertained by the court, the court may make such interim order under section 63 as it considers appropriate."
 

The test to determine if an alleged dependant of the deceased is entitled to interim support is essentially the same test as to determine if a dependant is entitled to support at all. As discussed in Romero v. Naglic Estate (2009), 51 E.T.R. (3d) 180, in order to qualify for interim support, the applicant must demonstrate that:
i. They fall within one of the qualified relationships as set out in section 57 of the Succession Law Reform Act (i.e. spouse, parent, child, brother, or sister of the deceased);
ii. The deceased was providing support the them, or was under a legal obligation to provide support to them, immediately prior to their death; and
iii. The deceased did not make adequate provision for the applicant in their will to support the applicant, and the applicant is in need of support.
 

In Perkovic v. McClyment, the court provides that on a motion for interim support, the court may weigh and assess the evidence presented (to the extent permitted by the nature of the evidence), as well as any pre-hearing testing of the evidence. The court states that the applicant must demonstrate "some degree of entitlement to, and the need for, interim support", and that if after the assessment the motions court concludes that the record contains credible evidence to support the applicant, then the court may issue an order for interim support.

At all times the onus remains on the applicant to demonstrate that they are in need of and entitled to interim support.  Dependant support applications can be a long and drawn out process. Thankfully through interim support, the court can allow a dependant to maintain their livelihood and well being even while the application is still before the courts.
 

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

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Cameron (Re) involved two cases where the husband was in debt to a bank at the time of his death and his estate was bankrupt. The wife had acquired the husband's interest in the jointly owned matrimonial home by way of right of survivorship. 

The bank brought a motion in each case seeking an order that the acquisition be set aside under section 96 of the Bankruptcy and Insolvency Act as a "transfer under value". Alternatively, the bank argued the same result should be reached by way of constructive trust or on equitable grounds.

The Court found that section 96 of the Act did not apply to the circumstances of these cases, as automatic vesting of title in a surviving joint tenant is not a "transfer". Even if it were a transfer, it was not established as being one made "under value", as the law presumes that each widow contributed as much as her husband to the acquisition, either in money or money's worth.

In addition, the constructive trust argument was not successful, as the Court found that automatic vesting of title in a survivor does not enrich the survivor and deprive the estate. In any event, even if there were an enrichment, there was a juristic reason for it.

Further, the Court held that the equities favored the widows, not the bank. It reasoned that there is nothing inequitable in depriving creditors of property that never vested in the trustee, was not owned by the bankrupt's estate at date of death and to which section 96 of the Act did not apply.

This is a very interesting read on this issue, which appears to have been dealt with for the first time in this decision.

Have a great weekend!

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

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Bonds protect beneficiaries and creditors from negligence or misappropriation by a trustee. 

The Estates Act (Ontario) requires trustees to post a bond worth double the value of the estate when the will names an executor who lives outside the Commonwealth.  In addition, residents seeking an appointment as estate trustee must post bonds when they are not named as trustees in the will or when the deceased dies intestate.

The current provisions have been criticized as needing modernization.  In 1991 the Ontario Law Reform Commission recommended changes to the requirements, and in April 2010 the Ontario Bar Association (OBA) wrote to the province’s attorney general with suggestions.

It is reported that the OBA proposes to eliminate the general bonding requirement for trustees not named in a will and when at least one trustee is resident in Ontario. However, the bonding would remain in place when vulnerable beneficiaries such as minors or mentally incapable people are involved.

While other jurisdictions are moving away from the bond requirement, such a movement will likely be slower in coming to Ontario. Perhaps this is due in part to fear of the rules being relaxed too greatly, which could lead to beneficiaries being victimized by a rogue trustee that would have otherwise been covered by bonds in the past.

Until change arrives, the option remains to attempt to obtain a court order exempting applicants from the bonding requirements under special circumstances.  While the legislation is silent on what that might mean, the Henderson (Re) case sets the standard for dispensation.

Thanks for reading,

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

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Listen to: Hull on Estates #280 - Common Law Relationships and Dependent Support Claims

This week on Hull on Estates, Paul Trudelle and Holly LeValliant discuss what is required to prove a common law relationship. The courts take a liberal approach to determining whether a relationship is common law. 

The general factors used to assess the relationship are shelter, sexual and personal behavior, services, social, societal, support and children. Paul and Holly reference two cases in the podcast: Molodowich v. Penttinen and Perkovic v. McClyment.  

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

Click here for more information on Paul Trudelle.

Click here for more information Holly LeValliant. 

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OxyContin was developed in the 1990s for the purpose of providing around-the-clock relief from moderate to severe acute pain, chronic pain or pain associated with cancer or other terminal conditions. OxyContin contains the opioid drug oxycodone (other opioid drugs include morphine, codeine, heroin and methadone). OxyContin, with its time-release properties, was billed as an improvement on the decades-old Percocet, which contained 5 mg of oxycodone and gave pain relief for only about 5 hours. One 80mg OxyContin pill contains the same amount of oxycodone as 16 Percocets, and therein lies the fly in the proverbial ointment. Addicts quickly discovered that there was an amplified bang for their buck to take an OxyContin pill and crush it down in order to nullify the time-release coating. Once crushed, the OxyContin could then be chewed, snorted or dissolved in water and injected to produce a heroin-like euphoria. The risk to the abuser is significant and well-known: overdose and death.

OxyContin was first introduced to the U.S. market in 1996. By 2001 OxyContin was leading the non-generic narcotic pain reliever segment and by 2008, U.S. sales topped $2.5 billion (roughly a half billion tablets). According to IMS-Brogan (which tracks drug trends), sales in Canada rose from $3 million in 1998 to $243 million in 2010. North Americans now consume more OxyContin than all other countries of the world combined. And somewhere along that timeline, OxyContin morphed from the panacea for terminal cancer patients into what is commonly referred to as “hillbilly heroin”. Each year in Ontario, there are more deaths due to OxyContin overdoses than due to drowning.

At the end of this month, the manufacturer is removing the brand OxyContin from the Canadian market.  At the same time, as a result of a third party review of the Ontario Drug Benefit claims data looking at the use of oxycodone long-acting tablets, the Ontario Health Ministry is delisting OxyContin from the Ontario Drug Benefit (ODB) formulary.  In addition, the Ministry will make it more difficult to access OxyContin's replacement, OxyNEO, which comes on the market March 1. OxyNEO will also contain oxycodone and offer the same effectiveness of OxyContin, but will be harder to crush, and will turn into a thick gel-like substance when 'cooked' or mixed with water for intravenous injection.  OxyNEO will be funded through the province's Exceptional Access Program, which means the drug will be more tightly controlled.  In order to obtain a prescription for a drug under the EAP, the patient's physician must submit a request to the Health Ministry providing the clinical rationale for requesting the unlisted drug.  According to the Ministry's website, an EAP approval may take up to three months to process, from the date of the application request.

While the phasing out of funding of OxyContin under the ODB is to be loudly applauded, questions remain:  How will communities, particularly those that are remote and have limited access to treatment options, respond to the acute surge of cases of oxycodone withdrawal? Will OxyContin addicts turn to heroin, cocaine or another opioid to fill the abyss, or will the limited supply on the streets simply drive up the price per pill (currently just shy of $80 for an 80mg dose) and set the scene for an explosion in crime rates?  For addicts, March may indeed "come in like a lion".

Jennifer Hartman, guest blogger

* photo from Narconon International
 

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Being a trustee is a lot of work. A trustee will invest a huge amount of time and effort (not to mention the stress that goes along with it) into ensuring that a trust is properly administered. With the time and effort often comes the expectation that the trustee will be compensated for their work.

But just how much compensation a trustee should receive can be a sticking point between the trustee and the beneficiaries.  It is obviously in the best interest of the trustee to receive the highest amount of compensation possible, while the beneficiaries will want to ensure as low a number as possible, retaining as much of the funds as possible for their own use. With agreement between the trustee and the beneficiaries often impossible to achieve, the question arises of how do you quantify a value of the work that a trustee does?
 

The first place to look in determining a trustee's entitlement to compensation is the trust document itself. Often the Settlor will expressly state what compensation the trustee will be entitled to, in which case the compensation is easily quantified. By including a set compensation amount in the document itself the Settlor can often avoid some of the infighting associated with quantifying compensation between the trustee and the beneficiaries. By setting out the amount of compensation in advance the trustee will also know up front what they will be entitled to, and if they feel that the compensation is inadequate can decline the task.
 

If the trust document is silent regarding compensation this does not mean that the trustee is not entitled to compensation. The court retains the absolute discretion to award compensation to a trustee, at all times keeping an eye to what is "fair and reasonable".  In assessing what is "fair and reasonable" the court traditionally employed a 5 part test known as the "5 factors", originally formulated in the 1905 decision of Re Toronto General Trust Corp. and Central Ontario Railway. The factors that the courts will consider are (i) the size of the trust; (ii) the care and responsibility involved; (iii) the time occupied in performing the duties; (iv) the skill and ability shown; and (v) the success resulting from the administration.
 

Over the years in order to arrive at a more easily quantifiable amount the court began to employ a set percentage test, with compensation determined as a set percentage of the value of the trust being administered. The issue of whether to use the set percentage amount or the 5 factors test in determining compensation was considered by the Ontario Court of Appeal in Laing Estate v. Hines, in which the court confirmed the reasoning employed in the earlier decision of Re Jeffery Estate that a combination of the set percentage amount and the 5 factors are to be used in reference to one another to determine compensation. When compensation cannot be reasonably quantified using the set percentage amount, reference will be made to the 5 factors to determine what the compensation should be. The same reasoning was also employed by the court in Logan v. Laing Estate (1996), 11 E.T.R. (2d) 268, with the court using a combination of the two tests in reference to one another to arrive at what the compensation should be.
 

Compensation is often something that is difficult for trustees and beneficiaries to agree to. Absent a clear direction in the trust document itself, often it will come down to the discretion of the court to determine what sort of compensation the trustee should be entitled to.
 

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

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The British Columbia Law Institute recently published Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide (“Guide”). 

The Guide was prompted by forthcoming changes to the legislation governing the law of succession in British Columbia, that will apply when the province’s new Wills, Estates and Succession Act (“WESA”) finally comes into force in 2013.  In particular, section 52 of the WESA will shift the burden of proof when an allegation is made that a will has been procured by undue influence in some circumstances. 

Currently under the common law in British Columbia (as is the governing common law in Ontario), if an allegation of undue influence arises in the context of a will challenge, the onus is then on the challenger to prove, on the balance of probabilities, that undue influence was exerted.  When the WESA comes into effect in British Columbia, the burden of proof will be shifted to those propounding the will, once the challenger has shown that the testator was in a relationship with the person alleged to have exercised undue influence in which the potential for dependence or domination of the testator was present.

As stated in the Guide, after section 52 of the WESA is in force, wills may be found invalid for undue influence more frequently in British Columbia.  This makes it all the more important for estate planners in the province to recognize situations in which undue influence could arise, and take safeguards or avoid preparing wills in such situations.  As set out in the Executive Summary, the aim of the Guide accordingly is to:

• raise awareness of undue influence as a potential cause of estate litigation and invalidity of a will; 
• assist estate planners to recognize red flags of undue influence;
• enable will drafters to interact tactfully but effectively with will-makers to elicit information necessary for them to properly assess the will-makers’ individual situations and ability to act independently; and
• insulate wills they prepare against successful challenges based on undue influence.

While the Guide is specifically aimed at the estates bar in British Columbia, it is certainly worthy of review by wills and estates practitioners across the country. 

Thanks for reading.  Have a great Family Day Weekend!

Saman Jaffery - Click here for more information on Saman Jaffery. 

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Listen to: Hull on Estates #279 – Disclaimer and Other Wrinkles in Sibling Disputes

This week on Hull on Estates, David Smith discusses the issue of disclaimer. Specifically, David references a case that illustrates the difficulties that may arise when siblings try to alter the state of affairs established by a parent who has since become incapable.  

If you have any questions, then please leave us a comment. You can email us at hull.lawyers@gmail.com or visit our blog.

Click here for more information on David Smith. 

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In the recent decision of Marley v. Rawlings 2012 EWCA Civ 61, the England and Wales Court of Appeal (“EWCA”) recently held that mirror wills executed by a couple are void because each spouse mistakenly signed the other's will, and held that the court did not have jurisdiction to permit rectification in such circumstances.   This decision stands in contrast to Canadian jurisprudence on point.

In Marley v. Rawlings, the testators were an elderly married couple, Alfred Rawlings and Maureen Rawlings. In 1999, they instructed their lawyer to prepare mirror wills. The wills were very short and, except for the obvious differences to reflect the identity of the testator, were in exactly the same terms. In their mirror wills, each left his or her entire estate to the other spouse or, if the other spouse had predeceased, to their adopted son (who was not related to them or legally adopted, but whom they treated as their son). Although the couple’s lawyer and his secretary went to their home to supervise and witness the execution of the wills, they both managed to sign the wrong wills without anybody noticing. Mr. Rawlings signed the will prepared for Mrs. Rawlings, and vice versa. The error was not noticed until the second death, that of Mr. Rawlings, seven years later (as the majority of Mrs. Rawlings’ assets were jointly owned with Mr. Rawlings and passed to him by right of survivorship following her death). Mr. Rawlings' will was thus, on the face, invalid and inadmissible for probate. As a result, Mr. Rawlings’ estate did not pass to the couple’s adopted son, their intended beneficiary. Instead, under the intestacy rules, it would pass to the couple's two natural sons, who had not been not mentioned in the mirror wills. The adopted son commenced proceedings seeking rectification of Mr. Rawlings’ will, and probate in solemn form of the will as rectified.

At trial, the trial judge declined to rectify Mr. Rawlings’ will, noting that the error concerned was neither clerical, nor a failure to understand the testator's instructions as required for rectification under section 20 of the U.K.’s Administration of Justice Act 1982.  On appeal, the EWCA upheld the trial judge’s finding that the court did not have jurisdiction to rectify the will in such circumstances, and reluctantly upheld the finding that Mr. Rawlings died intestate. 

The EWCA’s decision in Marley v. Rawlings stands in sharp contrast to Canadian jurisprudence on point.  There are a  number of authorities in Ontario, Saskatchewan, Manitoba, British Columbia, and Alberta where an identical situation has occurred, and courts have allowed rectification and admitted the rectified will to probate: See Re Brander Estate, [1952] 4 D.L.R. 688 (B.C. S.C.), Re Thorleifson (1954), 13 W.W.R. 515 (Man. Surr. Ct.), Re Knott Estate (1959), 27 W.W.R. 382 (Alta. Dist. Ct.), Re Bohachewski (1967), 60 W.W.R. 635 (Sask. Surr. Ct.), and Re Malichen Estate, 6 E.T.R. (2d) 217, (Ont. Gen. Div. Dec 22, 1994).

Saman Jaffery - Click here for more information on Saman Jaffery.

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A report released Monday by the Canadian Institute for Health Information reveals that organ donation rates have stagnated in Canada since 2006. 

Despite public awareness campaigns and an increase in need, the report found that the numbers of living and deceased donations in 2010 were on par with those from 2006. The living donor rate in 2010 was 16.3 per million population, compared with 17.0 in 2006. In 2010, the deceased donor rate was 13.6 donors per million population, compared with 14.0 in 2006. 

The report also found that the number of transplants performed in Canada has remained largely unchanged since 2006. In 2010, 557 living organ donors and 465 deceased organ donors contributed to 2,103 solid organ transplants. In 2006, 556 living donors and 461 deceased donors contributed to 2,074 transplant procedures. 

While the current donor rates are above 2001 levels, the report finds that the need for organs still outpaces the supply, and that as a result the “gap between organ donations and the need for transplants is growing.”

As we have blogged before, in Ontario, testamentary instructions or stated wishes regarding organ donation (technically) have no legal effect, and depend upon next of kin or the executor for implementation. Therefore, discussing your views on organ donation with your family and your named executor, leaving a Will with specific directions about organ donation, signing your Gift of Life Donor Card, and registering your consent with ServiceOntario are important to ensure that your wishes for organ donation are known and respected after your death. 

For more information about organ donation, please visit BeaDonor.ca.

Saman Jaffery - Click here for more information on Saman Jaffery. 

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A new survey provides interesting insights into the attitudes of Canadians with respect the estimated $1-trillion dollar transfer of wealth forecasted to occur in the next 20 years. 

According to the survey, 53 per cent of Canadians are expecting some form of an inheritance. While the majority of Canadians believe that they will receive an inheritance, expectations decline with age: 80 per cent of Canadians aged 18-29 years (“Generation Y”) expect an inheritance, whereas 62 per cent of Canadians aged 30-44 years (“Generation X”) and only 48 per cent of Canadians aged 45-64 years (the “Boomer Generation”) expect an inheritance.

For those who indicated that they knew the value of their future inheritances, 57 per cent indicated that it was expected to be over $100,000. The survey, which also polled Canadians who had already received an inheritance, indicated that many may receive less than they expected. While nearly half of Canadians who had already received an inheritance preferred not to disclose the value (47 per cent), those who indicated the amount received an average of $57,000. Further, one in five (18 per cent) Canadians who have already inherited said they received $100,000 or more, while one quarter (26 per cent) said they received less than $5,000.

The survey also revealed that nearly half (45 per cent) of Canadians aged 60 or more are concerned they are going to need their accumulated savings to fund their retirement, and do not expect to have money left to provide an inheritance to their surviving family. Only one-quarter (25 per cent) indicated that they were willing to make personal sacrifices to ensure an inheritance for their family.

The survey also revealed that many families are not openly discussing inheritance or estate planning issues. 39 per cent of Canadians whose parents have wills say they have not discussed the terms of the wills with their parents, and 61 per cent of Canadians with a deceased parent who left a will indicated they never had such a discussion. Interestingly, those who have discussed estate planning details with family members indicated that it was not a difficult conversation. 31 per cent said the discussion was very easy, while only 3 per cent said they found it very difficult.

A recent article in the National Post discusses the risks of incorporating an expected inheritance into estate and retirement plans, without considering all possible scenarios. The article suggests that some of the uncertainties involved in the transfer of wealth can be solved through discussion between family members.

Thanks for reading,
Saman Jaffery

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The act of destroying or revoking one's will is a fairly serious action, and not one that should be taken lightly. Without drafting a new will to take the place of the revoked one the testator will die intestate, and subject their Estate and their loved ones to the laws of intestacy of the jurisdiction in which they reside. But what if not all wills that have been revoked by the testator are actually revoked? What if you could revive a destroyed will as if nothing ever happened, and admit it to probate? Through the doctrine of dependent relative revocation you can accomplish just this.
 

The doctrine of dependent relative revocation can best be thought of as a sort of "conditional revocation". It is to be used when the testator only revokes or destroys their will with the intention that a new will take its place. Take for example the case of a testator who has destroyed their will as they have drafted a new one to take its place. If, for whatever reason, the new will is ineffective, the doctrine of dependent relative revocation will allow the destroyed will to be revived and take its place. The doctrine can also be employed in circumstances where a testator destroys their will incorrectly believing that a previous will they had executed will take its place (which it will not). The destroyed will can be revived, and the testator will not die intestate.
 

Not all revoked wills can be revived through this doctrine however. Lost wills, for one, appear to be an area in which the courts are unwilling to apply the doctrine. As I am sure you are aware, a will that can be traced to the possession of the testator, but cannot be located at the time of their death, is presumed destroyed by the testator with the intention of revoking it. As other revoked wills can be revived through the doctrine of dependent relative revocation, one could easily imagine that the argument might be attempted that a will that has been revoked as a result of it being lost should be revived in this fashion as well.
 

Sheen v. Sheen, a 2004 decision of the Manitoba Court of Appeal, attempted to do just this. In Sheen, it was argued that through the doctrine of dependent relative revocation a will that had been lost by the testator should be revived and admitted to probate. The court did not agree. In coming to its decision, the court states "I must say that I find it difficult to contemplate a lost will case where the principle of dependent relative revocation could be successfully invoked." This is because in order to use the doctrine it must be clear that the testator only revoked their will with the intention that a new one would take its place. In the case of a lost will, you are never certain of the circumstances surrounding the destruction of the will (assuming it ever was), and as such could never be certain that the will was only revoked on condition that a new one take its place.
 

Although it requires a very specific set of circumstances, the doctrine of dependent relative revocation allows a will has been revoked or destroyed to be revived and admitted to probate. So long as the revoked will was only revoked with the intention of a new document taking its place, which for whatever reason fails to materialize, the doctrine of dependant relative revocation will allow you to revive the revoked will and treat it as if nothing ever happened.
 

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

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This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag add to the Hull & Hull recommended reading list with their suggested read - "Smart Thinking" by Art Markman. A great book that uses problem Solving as an innovative way to get things achieved.
Ian and Suzana also share some exciting changes that have recently been made at Hull & Hull LLP. More specifically, they discuss their new "Synergy" rooms and explain how they have been applied, as well as discuss how they will improve your estate planning needs.
If you have any questions or comments, please email us at hull.lawyers@gmail.com or leave a comment on out blog at estatelaw.hullandhull.com

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Estates practitioners are nearly unanimous in their praise of mediation as a process especially well suited to the emotional strain of estate, trust and capacity litigation. And as a sub-specialty of mediation, "elder mediation" is focused on helping families and caregivers (and their advisers) forge a consensus about elder care. 

There is certainly a demand: The New York Times refers to a 2001 study published in Conflict Resolution Quarterly which found that "close to 40 percent of adult children caring for a parent described 'serious conflict' with a sibling, frequently the result of one sibling shouldering the bulk of caregiving responsibility."

Elder mediators may benefit from a skillset that goes beyond mediation training and experience to include such subjects as the physical and mental effects of aging and how to communicate effectively with the elderly.  As was initially the case with "Elder Law", the United States is ahead of Canada in defining Elder Mediation as a distinct practice area.  Elder Care Mediators in Fort Wayne, Ind., for example, has trained 80 elder mediators nationwide.  The National Eldercare Mediation Network posts profiles of elder mediators in all 50 states. Another Web site, Mediate.com, also allows prospective clients to search elder mediators by state.

In Ontario, when personal care of an incapable senior is in issue, the best bet is to go with a mediator who has had experience mediating guardianship disputes and who appreciates the subtleties of the personal dynamics inherent in sibling relationships.

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

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Over the next five years, legislative amendments take effect to neutralize the effect of taking the CPP early:

• Under current legislation, the pension benefit is reduced by 0.5%/month for each month before the recipient's 65th birthday to a maximum of 30% if taken early.  This will be reduced such that the pension benefit by 0.6%/month to a maximum of 36% if taken early and  will also reward additional years of work with a benefit increase of 0.7%/month to a maximum of 42% until age 70. 
• Currently, an individual receiving CPP can return to work without resuming contributions to the CPP; the amendments will require individuals under 65 to resume contributions to the CPP if they return to work. 
• Currently, an individual wishing to take benefits before 65 must reduce their earnings for 2 months to qualify for CPP.  Going forward, an interruption in work or reduction of hours will not be required to qualify.  
• Currently, an individual can "drop" 15% of periods (7 years) of low earnings from the calculation of their average career earnings.  This will increase to 16% (7.5 years) in 2012 and 17% in 2014 (8 years).

These changes will not affect persons currently receiving retirement benefits under the CPP.

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

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It is a scientific fact that children can now be born long after a parent has died.  This, in turn, has created the need for the law to catch up to medical advancements.  Although the issue (no pun intended) raises a number of questions, the simplest and most profound is this: should a child conceived and born after a parent's death have a claim to inherit from the parent's estate?

In the United States, while most states allow children conceived before a parent's death to inherit, current state laws vary on whether a child conceived after a parent has died can inherit from an estate.

In 2008, the Uniform Probate Code adopted a provision that would automatically include any children born to a surviving spouse within 45 months of a married decedent's death.  However, according to US News and World Report only two states -- Colorado and North Dakota -- have adopted the provision. 

In the U.S., the entitlement of a posthumously conceived child to the deceased parent's Social Security benefits will be decided by the Supreme Court later this year in Astrue v. Capato.  When the deceased was diagnosed with cancer, he froze sperm.  After he died, his wife used the sperm to conceive and applied for surviving child's insurance benefits but was denied.  The U.S. Court of Appeals for the Third Circuit ruled that  as long as the children were "dependents" of the wage earner, they are entitled to benefits. It will be interesting to see what the Supreme Court has to say on this issue,.

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

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 Listen to: Hull on Estates Episode #278 – Lessons from Recent Cases

This week on Hull on Estates, Natalia Angelini and Moira Visoiu discuss two recent decisions from the Ontario Superior Courts of Justice. Although not estates cases, Ferrara v. Lorenzetti and Koepcke v. Webster include elements that are important for estates planning solicitors.

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

Click here for more information on Natalia Angelini.

Click here for more information on Moira Visoiu. 

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An online cognitive screening exam known as the "Sweet 16" (which we blogged on last year) is no longer available after the holder of copyright of the Mini-Mental State Examination ("MMSE") issued a copyright claim over the online test's content.

In December 2011, developers of the Sweet 16 (while not admitting any breach of  copyright) permanently removed the cognitive impairment examination from the Internet in response to a copyright infringement accusation by the entity which manages the copyright license to the MMSE.  The Sweet 16 involves 16 elements including questions on basic orientation, items to remember, and counting sequences forwards and backwards.  Test developers provided open access to the Sweet 16 noting that copyright rules restricted the wider-known MMSE.

The MMSE was created in 1975 by Marshal Folstein, MD, and was freely available to doctors until its copyright license was actively managed in 2001.

Interestingly, most medical tests have a copyright. For example, the Framingham risk score, which accesses a patient's risk of stroke; the FRAX, a predictor of fractures; and the Katz Activities of Daily Living assessment, which measures a person's functional status all have copyrights which expire 70 years after the copyright owner's death or longer in some cases.

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

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Whether as a result of the increased prevalence of mediation and alternative dispute resolution in the legal profession today, or as a result of the ever increasing costs of litigation, more cases seem to settle today than ever before. With settlement often comes Minutes of Settlement, and if all goes to plan, a relatively peaceful conclusion to the legal process. But what happens if subsequent to signing Minutes of Settlement one of the parties refuses to abide by the agreement? What options are available to an aggrieved party to ensure that what they agreed to actually comes to fruition?
 

Rule 49.09 of the Rules of Civil Procedure provides that where a party to an accepted offer fails to comply with the terms of the offer, the other party may make a motion to a judge for judgment in the terms of the accepted offer. The effect of turning the settlement into a judgment of the court is to gain access to the enforcement mechanisms available pursuant to the Rules of Civil Procedure. These include Writs of Seizure and Sale for monetary awards, and contempt orders should the party in breach continue to refuse to abide by the settlement.
 

Turning the settlement into an order of the court is not the only mechanism available to enforce the Minutes of Settlement against a party in breach.Olivieri v. Sherman, a 2007 decision of the Ontario Court of Appeal, provides that a settlement agreement is a contract, and as such is subject to the general laws of contract. So long as the court is satisfied that at the time the settlement was entered into the parties (a) had a mutual intention to create a legally binding contract; and (b) reached agreement on all of the essential terms of the settlement, the court will find that a valid contract exists between the parties. As a valid contract exists between the parties, the general remedies available for a breach of contract are available in the event that one of the parties refuses to abide by the settlement. These remedies include damages in the event that the settlement concerned a monetary award, or specific performance in the event that the settlement concerned specific actions such as the return of property.
 

Thankfully, in my experience, most people tend to enter into settlement agreements in good faith, and will more often than not abide by what they agreed to. Between Rule 49.09 and the general remedies for breach of contract however, should you find yourself in the situation where a party refuses to abide by a settlement agreement, there are options available to remedy it.
 

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

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Listen to: Hull on Estates #277 – Creative Claims against Real Property

This week on Hull on Estates David Smith and Holly LeValliant discuss creative claims that can be asserted against real property in the estates context. Specifically, they discuss the role for creative counsel to play in developing an argument to assist individuals who are not on the title of a property, but who still have a claim in equity to the property.

Please send us an email at hull.lawyers@gmail.com if you have any questions. You can also leave us a comment on our blog.

Click here for more information on David Smith.

Click here for more information on Holly LeValliant. 

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A Florida man has adopted his 42-year old girlfriend, allegedly to protect his wealth in the context of a wrongful death suit. 

John Goodman legally adopted his girlfriend of two years in order to give her immediate access to 1/3 of a trust fund set up for his two children. The fund is estimated to be worth about $200 million according to one article.

Judge Glenn Kelley called the tactic “unprecedented.”

“The events which serve as the grounds for the relief sought by the plaintiffs border on the surreal and take the court into a legal twilight zone,” he wrote in an order allowing the plaintiffs’ lawyers access to the adoption information.

Florida state law provides that “a petition to adopt an adult may be granted if … written consent to adoption have been executed by the adult (and the adult’s spouse, if any)…”

Most adult adoptions are done to cement the bond between foster parents and foster children, or to give legal effect to an existing but informal parent-child relationship. 

However, the use of adult adoption for less than legitimate purposes is not as “unprecedented” as you might think.

In Canada, adoption falls under provincial jurisdiction. Different provinces have different rules with respect to adult adoptions. In all cases, an application must be made to the Court. For example, in Alberta, an adult can be adopted “if it is not contrary to the public interest to do so.”  In Manitoba, a judge will consider whether the “reason for the adoption is acceptable.” 

The Ontario Child and Family Services Act only provides:

Adoption of adult, etc.
(3) The court may make an order for the adoption of,
(a) a person eighteen years of age or more; or
(b) a child who is sixteen years of age or more and has withdrawn from parental control,
on another person's application.

Although this seems to provide no guidance with respect to the factors that the Court will consider, according to case law, the applicants must first satisfy the Court that there is a “gap in the proposed adoptee’s life created by the parent-child relationship that requires remedy through an adoption order”. 

The Court will consider whether the relationship between the applicants has historically been one of parent and child. It will also assess the bona fides of the application.

In one case, the Court dismissed an application where it appeared that the application may have been made in order to assist the adult in gaining permanent residency in Canada.

In other words, Canadian Courts will look at the intentions of the parties, and if it is not a bona fide application that is consistent with the spirit and purpose of the adoption legislation, then it will be refused.

Moira Visoiu - Click here for more information on Moira Visoiu. 

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On the 100^th anniversary of the sinking of the Titanic, an auction house in New York will be selling $185 million worth of items salvaged from the wreckage.  According to a recent article in the National Post, the auction has generated a new wave of criticism from many, including survivors of the tragedy and their families, who describe it as insensitive pillaging. 

The wreckage of the Titanic was discovered in 1985.  Shortly thereafter, salvage crews descended upon the location.  Legal battles ensued over the salvage rights by companies looking to cash in on the public’s interest in the tragic story.  Since the first salvage operations began, people have blasted the companies and compared them to grave-robbers.  Those involved in such operations take exception to the comparison, and say that what they do is no different than searching a battlefield with a metal detector.  They argue that if the items are not pulled up, they will be destroyed in the ocean, and no one will be able to see these pieces of history.

Pursuant to a 1994 ruling by the Eastern District of Virginia, the RMS Titanic Inc., a subsidiary of Atlanta-based Premier Exhibitions, has the exclusive salvage rights over the wreck.  The private company has recovered about 6,000 items from the ship. 

Some collectors draw a distinction between owning parts of a sunken ship and owning the personal effects of victims.  One collector quoted in the article said that it doesn’t feel right to him to purchase personal items.  But according to the National Post, it is personal items that draw the crowds.  The RMS Titanic Inc. has touring exhibitions which display many personal items including clothing and letters, along with information about the previous owners. 

The history of the legal battles over the salvage rights is set out in an article entitled "Titanic in the Courts" by Ricardo Elia. 

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Listen to: Hull on Estates #276 - Representing individuals with mental illness 

This week on Hull on Estates, Paul Trudelle and Nadia Harasymowycz discuss representing individuals with mental illness. More specifically, they refer to an article in Briefly Speaking and reinforce the importance of overcoming personal prejudices, maintaining confidentiality and respecting a client’s instructions.

Please send us an email at hull.lawyers@gmail.com if you have any questions. You can also leave us a comment on our blog.

Click here for more information on Paul Trudelle.

Click here for more information on Nadia Harasymowycz. 

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A controversial article written by retired physician Ken Murray entitled "How Doctors Die" has people talking about advance directives - also known as Living Wills.

Advance directives are legal documents which express a person's wishes with respect to the kind of health care they want to receive in the event they become unable to make medical decisions for themsleves.  Legislation in Ontario requires that advance directives be considered when others make health care decisions on your behalf. 

Pursuant to section 21(2) of the Health Care Consent Act:

"A person who gives or refuses consent to a treatment on an incapable person's behalf shall do so inaccordance with the following principles:

1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish.

2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person's best interests."

A recent study found that about 67% of physicians prepare advance directives - while less than half of lay severly or termanilly-ill patients do.  Those who did prepare advance directives were three and a half times more likely to refuse certain types of medical intervention, including "rescue care" such as CPR. 

Ken Murray's article highlights the irony of a system where most physicians make the personal choice to refuse the very same procedures they perform on patients everyday.  In his article, he suggests that physicians are adverse to "futile care" because they know from experience that such procedures often merely prolong and exacerbate suffering, especially when performed on unhealthy elderly and/or chronically ill patients.

So, whether your instructions are to avoid so-called heroic measures, or to encourage the use of any means possible to elongate your life, advance directives are an excellent way to clarify your views with respect to your health care plan.  They also assist your substitute-decision maker in making difficult choices consistent with your wishes. 

Moira Visoiu - Click here for more information on Moira Visoiu.