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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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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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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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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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. 

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A simple plea from Justin Bieber resulted in a significant boost in on-line organ donation registrations in Ontario. 

After an Ottawa woman awaiting a lung transplant tweeted:

"Hey @justinbieber!  I BELIEB you should use that Canadian voice of yours and help save lives like mine # beanorgandonor beadonor.ca #giveblood"

Justin responded by encouraging fans to sign up.  The Trillium Gift of LIfe Network saw a surge in traffic to their website and a spike in on-line registrations as a result. 

In Ontario, your family can consent to organ donation on your behalf, if you are unable to do so.  However, on-line registration ensures that your wishes are communicated to the Trillium Network and shared with your family.  There are currently over 1,500 Ontarians awaiting life-saving organ transplants.  Go to beadonor.ca to find out more.

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

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In our fast paced and busy lives, we can often overlook the basics, getting bogged down in the details and not seeing the forest for the trees. Seeing as this is the case, I thought it might be a good exercise to have a quick review of one of the basic tenants of trust law; the three certainties.
 

Most people are fairly comfortable with a basic understanding of what constitutes a trust. The loose idea that a trust is created when a person transfers property to another person under the instructions and understanding that the property is to be used for the benefit of a third party is fairly universally understood. But what may not be as universally understood are the basic criteria that must be met in order to have the transfer of property constitute a valid trust.  In order for the property transfer to constitute a valid trust, it must meet what are known as the three certainties: (i) The Certainty of Intention; (ii) The Certainty of Subject Matter; and (iii) The Certainty of Objects.
 

The Certainty of Intention refers to the intention on the part of the person transferring the property (more correctly referred to as the "Settlor") to create a trust. The expression of the intention to create a trust can be oral or written, and should be supported by some expression of the intent to create a trust. Put simply, when the Settlor transferred the property, they had to do so with the intention that the property be held in trust for a third party.
 

The Certainty of Subject Matter has two aspects to it, being: (i) the certainty of the property that is subject to the obligation that it be held in trust; and (ii) the certainty of the amount, or share, of the trust property that each beneficiary is to receive. At the time that the property is transferred, it must be certain what property is to form the subject of the trust, and you must know how much each beneficiary of the trust is entitled to receive. 
 

The Certainty of Objects refers to the fact that you must be certain who the beneficiaries of the trust are. For a trust to be valid, the trustee must know who they are to direct the benefits of the trust property towards, and who can hold the trustee to account in the event of anything going wrong. As such, a group so large or so vague that the trustee would unable to identify who the beneficiaries are would not be valid. The Objects have to be easily ascertainable and identified in order to be a valid trust.
 

If an alleged trust lacks any one of the three certainties it will fail as a trust. As such, when approaching a trust for the first time, a good practice tip is to quickly run through the three certainties to make sure that the trust is valid in its most basic form. Why waste hours on a more minute detail, only to realize that the trust was not valid from the start as a result of its objects being too vague. I hope this review of one of the basic tenants of trust law has provided you with a valuable refresher. Sometimes a review of the basics does us all a little good
 

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

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On August 15, 2011, I blogged on the decision of Hennessy J. in Makarchuk v. Makarchuk, 2011 ONSC 4633 (CanLII).  There, the court found that a separation agreement did not preclude the surviving spouse from benefitting under the deceased’s will.

On Monday this week, the Ontario Court of Appeal dismissed the appeal, and upheld the decision of the lower court.  In a brief endorsement, the Court of Appeal stated “We have not been persuaded that the application judge erred in her interpretation of the Separation Agreement. Since the deceased never revoked his will, the gift in the will to the respondent stands.”

The Court of Appeal also dismissed a motion to admit fresh evidence. No particulars of this motion were given.

As I stated in my prior blog, separated spouses must consider their estate plan, including terms of their wills and beneficiary designations to ensure that their intentions are properly reflected.  In the case of Makarchuk, it is not clear whether the husband intended to benefit his separated spouse.  However, as the lower court noted, had he wished to not do so, there were a number of means available to him to effectively revoke the gift he had made to his spouse prior to their separation.

Have a great weekend.

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

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A “festival” running at London’s Southbank Centre in January explores death from all angles. The festival will explore attitudes towards death, using music, workshops, literature and art installations. Festival events range from the whimsical to the serious.

Highlights include an art installation entitled “the ‘Boxed’ coffin exhibition”, which features a number of unusual coffins, including coffins in the shape of a dumpster, a lion, a Mercedes, a car, and a skateboard.

Less light-hearted events include a debate on assisted dying; a music concert featuring composers obsessed with death; an art installation that commemorates the 250,000 people that will be born or die in 12 hours around the world; a poetry workshop on writing poetry when dealing with the grief associated with the death of a loved one, and a pseudo-funeral procession borrowing from a New Orleans funeral parade.

Other events include a chalkboard where attendees can record an item from their “bucket-list” of the one thing that they want to do before they die, and a children’s play chronicling the last days of a pet guinea pig.

Together, the festival’s numerous events shed light on and led to healthy discussion of a topic many are reluctant to talk about. 

Thank you for reading.

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

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A ‘controlled substance’ is any type of drug whose manufacture, possession or use is tightly regulated by a government because of the higher-than-average potential for abuse or addiction. In Canada, controlled substances fall under the parameters of the Controlled Drugs and Substances Act (S.C. 1996, c.19).  How is it, then, that hundreds of thousands of doses of OxyContin, morphine and other prescription narcotics are ‘robbed, pilfered or otherwise lost’ from the supply chain each year in this country?

On January 23, the National Post’s Tom Blackwell published some startling statistics about the not-so-slow leak of prescription narcotics from the supply chain. According to the Post’s research (based on Health Canada statistics), only 64% of the loss and theft of oxycodone (the active ingredient in OxyContin) is attributable to theft from, or robbery of pharmacies. Suppliers higher up the chain (e.g. manufacturers and importers) are also losing significant volumes of product, accounting for the other 36% of total loss. What scale of loss are we talking about here? If we just look at oxycodone, the combined black-market value of losses from pharmacies and ‘licensed dealers’ (producers, distributors, wholesalers) in 2010 was just over $18 million. That’s roughly a half million tablets.  Professor Benedikt Fischer, an addictions expert at Simon Fraser University summed it thusly: “This isn’t some trivial problem. We’re now looking at a problem that is a major source of disease and death. These drugs are killing a lot of people.”

The volume of drugs taken from wholesalers and distributors has also increased substantially in the past five years.  It is difficult to put a finger on any single cause.  Blackwell's article presented some prime suspects for consideration, including cutbacks in the number of controlled substance inspectors and the bare fact that a trend of increasing prescription rates for opioids translates into more opioids being in the proverbial pipeline.

It is critical that Health Canada gets to the root of the supply chain leaks.  Fischer's "these drugs are killing a lot of people" was no overstatement.  Indeed, as discussed in an earlier blog, accidental deaths in Ontario due to opioid use exceed deaths from HIV.  And from the Globe and Mail (January 6, 2012): the same number of people die from opioid-related deaths in Ontario each year as they do from motor vehicle accidents.  

Jennifer Hartman, guest blogger

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Renowned blues singer Etta James died last week at the age of 73. She succumbed to chronic leukemia, complicated by dementia and kidney problems.

Etta James had a particular significance to me. After buying my first CD player, Etta James’ CD was the first CD that I purchased. That CD got a lot of play.

Etta James lived a turbulent life. She was born to a mother whom Etta described as a scam artist, a substance abuser and a fleeting presence during her younger years. She did not know her father. During her lifetime, she would battle addictions.

However, as a musician, she soared. She was inducted into the Rock and Roll Hall of Fame, and won numerous Grammys, including a special lifetime achievement Grammy in 2003.

Near the end of her life, her health declined, and here family was involved in a dispute over her care. Her two sons had challenged decisions being made by Etta’s husband, who was the conservator of Etta’s $1m estate.  The dispute was reported as settled, with the husband staying on as conservator, and the amount available for her expenses and care being fixed at $350,000. The sons were also to receive a full financial accounting of Etta’s music catalogue.

Thank you for reading.

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

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Rule 75.1 of the Rules of Civil Procedure provides for the mandatory mediation of estates, trusts, and substitute decisions matters which are commenced in Toronto, Ottawa, or the County of Essex.
Rule 75.1 provides that, except in a contested Passing of Accounts, the Applicant shall make a motion, in the same way as under R. 75.06 (Application or Motion for Directions), seeking directions for the conduct of the mediation. Rule 75.1.05(2) provides that the Notice of Motion for mediation directions is to be served within 30 days after the last day for serving a Notice of Appearance.
 

In terms of who actually conducts the mandatory mediation session, R. 75.1.06 provides that the mediator can be a person chosen from the list for the county by agreement of the designated parties, a person assigned from the list by the mediation co-ordinator for the county (at the request of a designated party), or a person who is not named on the list, if the designated parties consent.
 

Most clients are vaguely familiar with the court process and think they know what to expect - they know it involves a judge, their lawyer, a trial, and a courtroom. Not many clients however know what to expect at mediation. As a result, it is important for counsel to take time to describe the process, answer any questions, and prepare their client for what they can expect to happen at mediation. By doing so, counsel can help reduce their client's anxiety about the attendance.
 

Estate mediations can be a very emotionally draining experience. Apart from any legal foundation to the dispute, many intangible factors tend to also be present in estate matters. Jealously, anger, and greed are difficult emotions to overcome and can be sever stumbling blocks in settlement. Sometimes, steering clients away from the emotional aspects and towards the financial implications of continued litigation assists them in moving past those types of difficulties.
 

Clients need to be assured that the mediation process is completely confidential and that anything that is said or admitted cannot be used against them at a later date. The fact that there will be no public record of the proceeding may provide some clients with the comfort to say things that might otherwise not be said. In addition, clients can be advised that any information they provide to the mediator to try to help him or her understand their position better can remain confidential, and that the mediator will not disclose any information unless expressly authorized by the client. Having the opportunity to participate in open and frank discussions may be the key to resolving outstanding issues, issues which might not otherwise be addressed in the litigation process.
 

In jurisdictions not governed by mandatory estate mediation, r. 75.06(2)(f.1) allows a judge hearing an Application or Motion for directions to direct that a mediation session be conducted nonetheless. Counsel may want to keep this provision in mind when otherwise seeking directions in respect of a matter which may, in whole or in part, benefit from a mediation session.
 

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

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Thank you to all who attended our Breakfast Series yesterday, and congratulations on getting a head start on your CPD! 

For those of you who didn’t attend, you missed three wonderful presentations which covered a wide array of issues faced estate practitioners, both litigants and solicitors alike. Paul Trudelle provided a reminder to all of us that the Rules of Professional Conduct deserve a routine review, and drew our attention to specific examples of how estate practitioners are impacted by Rule 2, and how we should turn our minds to this rule during the course of every retainer. Natalia Angelini provided a detailed review of the Pecore decision and the issues of joint ownership in estate planning. While Ian Hull wrapped up the morning with discussion about the pitfalls and traps of disinheritance, and what planners and litigators should look to when strategizing.  

Please check out our website and see our previous presentations and papers, the papers presented at yesterday’s seminar will be posted shortly.  Also stay tuned to our website for information regarding our next breakfast series, I hope to see you there.

Have a great weekend,

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

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A friend recently drew my attention to a new Facebook app (ifidie) that allows you to leave a message that will only be published after you die. A video about the app can be viewed here, and the press kit on their website identifies that this could “even [be] a will”.    In brief, the app allows you to upload videos and messages, and authorize trustees (it looks like they must be Facebook friends of yours) which can notify Facebook upon your death. Once Facebook has been notified of your death, the messages you have identified will be posted to your profile[1].

You may remember the Sunscreen Song, a smash hit in the late 1990s that gave ‘advice’, most notably to wear sunscreen.   Some of the things that we have to tell people are really important; some are not. I can certainly see this app being used to reveal secrets, leave us with whatever ‘sage’ wisdom or venom is felt necessary, and possibly to simply say goodbye, much in the same vein as the Sunscreen Song. What happens if it doesn’t stop at that? 

In Ontario, under the Succession Law Reform Act, Part I, section 3, “A will is valid only when it is in writing.”  What happens if the video posted includes a testamentary disposition? Certainly, it wouldn’t be a valid will in Ontario, having not met even the minimum writing requirement, but perhaps in other jurisdictions such a statement could be considered a valid testamentary document. In Ontario, would it be, and could it be used as, evidence of testamentary intention?  What if the ifidie post is a written message stamped with electronic signatures? Could the argument be made that it’s a Will?

Leaving aside the various other issues that relate to post-mortem social media presence, the potential for the app to be used for testamentary purposes may have serious ramifications for Estate litigation, both in Ontario and beyond. 

In our constantly changing world… can you keep up?

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

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With the extreme advancements in technology, we are all struggling to keep up. Whether its asking your kids about this thing called Facebook or remembering to keep a record of your online banking information, we have reached a stage where we can’t avoid the realities of living in a world where a great deal of our life is conducted in ‘cyber-space’.  

The Will Registry, Inc. is a web site that has recently been launched in New York State. The site is a centralized database for storage of wills, trusts, powers of attorney, heath care directives and other vital legal documents. Further, it includes a directory to locate originals.   The website also makes it possible for the member to access their information from anywhere in the world. Some of the services are discussed in this blog. 

Notably, the website also allows for professional accounts. Allowing lawyers, trust officers, physicians, hospitals and health care providers to create their own accounts to store information relating to their records. Hypothetically, this would allow lawyers to keep a record of the wills they’ve drawn and what was done with the original. The record being preserved, and searchable, with the information being disseminated limited to that allowed by the member.  

We’ve all encountered the situation where we believe that a client or the Deceased in an estate battle made a Will, and yet no one can find it, or only a copy can be found. This could lead to a variety of possible court Applications, all costly, lengthy and ultimately with no guarantee of success. The search capabilities included in this site, as well as with the Ontario counterpart (although it is limited to Wills), could assist in general conundrums of this fashion, assuming the member has made that information available.  

The extent to which this website is used and whether there are any ethical issues for its use from a professional perspective is yet to be seen. I suppose that only time will tell how such websites impact estate planning, administration and litigation, but its certainly something to think about the next time you’re looking for a will.  

Until Tomorrow,  

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

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In 2007, the British Columbia legislature passed the “Adult Guardianship and Planning Statutes Amendment Act”, parts of which came into force in September of 2011. One of the key points to this legislation, finding interest in the estate world recently, is the new mandatory mediation requirement for guardianship applications.  Several of the other considerations addressed in this new legislation are considered here.

The Canadian Centre for Elder Law Studies, a division of the British Columbia Law institute, has recently prepared a report on this very issue, titled “Elder and Guardianship Mediation”.   At the risk of stating the obvious, our demographic is quickly aging, and issues surrounding anything dealing with the elder population are appropriately en vogue.   The substantial report deals with a variety of important issues in respect of the type of training a mediator might require in this particular field, ethical principles for consideration for all involved, as well as attending to an explanation of key concepts and definitions related to this field.

Although this report was prepared for British Columbia, with a detailed analysis of their legislation, certainly the parallels to Ontario are evident and likely to be found very persuasive by the Ontario Courts. Under Rule 75.01 of the Ontario Rules of Civil Procedure, mandatory mediation applies to the Substitute Decisions Act. As guardianship in Ontario is governed by the Substitute Decisions Act, it may be that the information and considerations addressed in the Report will be helpful both in practice to Ontario counsel, as well as to the judiciary when considering such matters.

Get an early start on your CPD Hours and join us for our Breakfast Series this Thursday, January 19, 2012 at 8:30 am at the Ontario Bar Association Conference Centre located at 200-20 Toronto Street, Toronto Ontario. Please see here for a link to our registration form. I hope to see you there!

Thanks for Reading,

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

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Mistakes are a fact of life. Even the most careful person, who always makes sure to double check their work, may one day inadvertently make a mistake. If luck is on your side hopefully these mistakes do not have too large an impact, and can easily be corrected. But what happens when a mistake is made in the drafting of a will? Can these mistakes easily be corrected, or is the testator (and their intended beneficiaries) stuck with the will as written, mistakes and all?
 

There has long been a debate over whether the court has the power to add new words to a will in order to correct a mistake, or merely the power to delete mistakenly included words.  Indeed A.H. Oosterhoff in his seminal text "Oosterhoff on Wills and Succession", states that while a court of probate may strike out errors, it may not substitute new words.  But is this truly the case? Are the words as written in the will the only words that may be admitted to probate? Can no additions be made?
 

Recently in Lipson v. Lipson, the Ontario Superior Court of Justice gave some guidance in understanding under which circumstances the court can add or delete words to a will. In coming to his decision, Justice Pattillo states that after reviewing the jurisprudence on the matter, it has long been an established principle in Ontario that the court has the power to delete or add words to a will by necessary implication.In Lipson, Justice Pattillo formulates a test to determine under what circumstances the court can add or delete words to a will. Justice Pattillo states that this test is to apply not only in circumstances where words are omitted, but also in circumstances in which the incorrect words were inserted. Before the court can delete or insert words to correct an error in a will, the court must be satisfied that:
 

i. Upon a reading of the will as a whole, it is clear on its face that a mistake has occurred in the drafting of the will;
ii. The mistake does not accurately or completely express the testator's intentions as determined from the will as a whole;
iii. The testator's intention must be revealed so strongly from the words of the will that no other contrary intention can be supposed; and
iv. The proposed correction of the mistake, by the deletion of words, the addition of words, or both, must give effect to the testator's intention, as determined from a reading of the will as a whole and in light of the surrounding circumstances.
 

So long as the proposed addition or deletion meets all four elements of the test as contained in Lipson, the court should be willing to rectify the mistake and allow the true intentions of the testator to become reality. Whether the courts will openly embrace Lipson remains to be seen, but hopefully with this test we will now finally have some closure on the debate of when mistakes can be rectified in a will. Mistakes happen. Hopefully we now have a mechanism to correct them.
 

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

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Nursing homes in Ontario select healthier patients over those who require more care, according to an expert in Ontario. This leads to backlogs in hospitals while patients with high needs wait for a nursing home that will accept them.

According to Healthzone, Dr. David Walker commented on the plight of an elderly woman who was threatened with a bill of $1,300 a day if she refused to vacate her bed at Toronto East General. The 84 year old patient suffered a stroke two months before and now requires a feeding tube to eat, but there are a limited number of nursing homes with the ability to care for her. 

“If she were walking around the floor of Toronto East General, looking forward to being able to go to a nursing home where she would be able to feed herself and play cards, she would be gone in a flash,” Walker said.

“The incentive at the moment is that you fill up your nursing homes with the healthiest people and our health system ends up burdened with all sorts of people with high needs,” he added.

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