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

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"Some day, a wise person in a position of authority will realize that a court of law is not the best forum for deciding custody and access disputes, where principles of common sense masquerade as principles of law." - Mr. Justice Joseph Quinn as quoted in the Globe and Mail.

Until that day, the fighting parents who appeared before Mr. Justice Quinn have been barred from court unless they obtain special leave.  Looking at the context, it's hard to argue they did not earn it: 25 court orders from 12 different judges over 7 years, three contempt motions, one suspended sentence, 12 different lawyers, 2000 pages of court filings. 

An apparent lack of respect for the rulings of the Court by both litigants was a factor in this extraordinary Order.   As Mr. Justice Quinn is quoted, "[b]oth sides have shown an inability to abide by court orders such that their access to this court should be restricted by the requirement to obtain leave." 

Mr. Justice Quinn is further quoted as saying "[t]he parties have gorged on court resources as if the legal system were their private banquet table. It must not happen again,".  It is easy to forget that courts are very expensive operations: rent, upkeep and salaries.  An hour before a judge in court is not cheap for society, whether or not the litigants are represented by lawyers.  As a purely editorial comment, it is heartening to see principled recognition of this fact.

The father, perhaps unsurprisingly given the reported facts, is apparently considering an appeal.

Enjoy the weekend,

Chris Graham

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The contemporary attitude is that we live in a young country.  True in some respects.  Yet we own the oldest contiguous institutions.  Trusts are one aspect of this venerable inheritance: the trust is as old as the Common Law.  Actually, a little older in some respects: the English trust finds its roots in the 12th century.  

It all started when a few knights returned from their crusades to find that the "friends" to whom they had entrusted management of their feudal lands refused to return said lands.  There was no mechanism at law to force the new untrustworthy owners to return the land so the law courts could do nothing. 

Naturally, the irate knights went to the Lord Chancellor and "asked" for justice.  One can imagine the scene: the silk-gowned Lord Chancellor looking down at the length of his shoe, then up at a selection of battle-worn armored thugs with gauntlets tapping hilts on chipped swords, over at the foppish, yawning new land-holder, then down again at the length of his shoe.  Unsurprisingly, the knights who had nothing else to live for continually won in the Courts of the Chancellory and the concept of trustees and beneficiaries was born.  I wager that trial by ordeal would have reached similar results so this must have been fate at work.

Tomorrow some interesting case law, I promise. 

Chris Graham

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Who can forget the sad case of Terry Schiavo, the poor lady who suffered catastrophic brain damage in 1990 and was kept alive in a vegetative state on a feeding tube for 15 years?  Readers will remember the anguish involved when her husband was forced to litigate against her parents in order to get the tube removed so Terry could die in peace.  This became a powerful argument in favour of a "Living Will", which is basically a document in which individuals outline their "personal choices" regarding end-of-life treatments.  Living Wills became a feel-good legal product, a perceived solution to the heart-rending situations like Terry's.

Too bad the research shows that Living Wills may not live up to the hype.  According to a recent study by two University of California Irvine researchers, Professors Peter Ditto and Elizabeth Loftus, Living Wills appear to have serious defects.  One problem is that patient preferences change over time.  For instance, one tends to be more inclined against end-of-life treatments immediately after a hospital stay, but this changes with time.  Also, positive treatment results of family members make a patient more inclined to end-of-life treatment.  Many people who make Living Wills change their preferences but forget about their Living Will, or misidentify those preferences in the Living Will. 

Perhaps the most glaring weakness is that Living Wills do not appear to provide guidance  to surrogates who have read them.  According to the study, the accuracy of a surrogate who has read a Living Will in prediciting a loved one's treatment preferences is no higher than that of a surrogate who has not read the Living Will.  So a Living Will can be totally inconsistent with the patient's most recent intentions.   

Having a Living Will apparently makes both the patients and the surrogates feel better, so it's not all bad news. 

Have a safe day,

Chris Graham

 

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How does one prove a negative?  This is a challenge facing many estates: after a person dies, individuals spring forth requesting compensation for services rendered on a quantum meruit basis or alleging that promises were made by the deceased.  A common example is a claim that one provided domestic services such as cleaning, shopping or laundry. 

The riddle of proving a negative is quite relevant to estates litigation because the star witness for the estate is usually, by definition, dead.  Fortunately, since estate trustees can't prove negatives, they don't have to.  Section 13 of the Evidence Act specifically addresses this scenario, requiring independent corroboration of evidence in claims against estates.   The provision is designed to prevent claims that consist of mere allegations, which are easy to make, difficult to refute and expensive to litigate.  There is a great deal of case law on what constitutes corroboration, the standard of proof and so forth but the provision is a great deterrent to frivolous claims.

It seems trite to say but the Act is worth a review, even for non-litigators.  It's full of counter-intuitive gems that are easily forgotten: for instance, section 9 the Evidence Act states that witnesses are not excused from answering questions tending to criminate them under any Act of the Legislature.   

Have a great day,

Chris Graham

 

 

 

 

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What happens when the Bill a legislature votes for is different than the Bill the Head of State signs?

A fascinating story is playing out down south: the U.S. Congress voted for a highway funding bill, which the President later signed into law.  But someone altered an "earmark" provision after Congress voted, so the bill the President signed was slightly different than the bill Congress voted on.   Specifically, a $10 million earmark was changed to redirect funds to upgrading an apparently useless stretch of road.  It turns out the locals don't even want the road built.

The Senate is seeking a federal inquiry  and Congress may seek a criminal probe.  Hopefully the constitutional aspect gets some consideration before (righteous) outrage drowns out the interesting constitutional aspect.  Is this rogue Bill a law?  Is what the President signed legally different than what the Congress approved?  What would the result be here in Canada, if a section of a regulation, for instance, was altered after a Parliamentary vote? 

One thing is certain: our friends down south will spend far more than $10 million getting to the bottom of this.

Enjoy your week,

Chris Graham

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The intense media coverage of the raid on the polygamist ranch in Texas has also generated scrutiny of Canada’s polygamous communities.

 

Polygamy is against the law in Canada but there has not been a prosecution of a case in over sixty years. For a background on the issues surrounding polygamy and Canadian law, read A Polygamy Primer on Osgoode Hall’s law blog, The Court.

 

The primer provides a link to a collection of research policy reports commissioned by the federal government exploring polygamy in the Canadian context. While the focus of the papers is on polygamy in a criminal law and family law context, the paper by Alberta’s Civil Liberties Research Centre discusses the civil case of Yew v. British Columbia (Attorney General) [1924] 1 D.O.D. 1166 (B.C.C.A.). In the case, the British Columbia Court of Appeal gave limited recognition to a polygamous marriage that had occurred in China to allow the two surviving wives to receive their annuities from their husband’s estate at a lower tax rate.

 

It will be interesting to see if the possible recognition of polygamous unions in the family law context will have an impact on estates law.

 

Enjoy your weekend,

Diane Vieira

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Dame Anita Roddick, the founder of the Body Shop, gave away her entire wealth, approximately 102 million dollars, to various charities while alive. She only left enough money in her estate to pay the inheritance tax on those charitable gifts. Once the inheritance tax is paid, the value of her estate will be nil.

Roddick had been very vocal about her intentions to give her wealth to charities and called the idea of bequeathing her estate to her two daughters obscene. Prior to their mother's death, her two daughters were interviewed and reportedly relieved to not be inheriting their mother's wealth and supportive of their mother's charitable giving.

Needless to say, Roddick's decision to leave nothing to her two daughters sparked some discussion. David Smith's previous blog on wealthy parents and transfer of wealth discusses some of the concerns such individuals have about estate planning.

Thanks for reading,

 

Diane Vieira

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An Alberta case, Re Boychuk, looks at the legal and moral obligations to provide support to a dependant of the estate.

The testator executed his Will in 2003 when he was 89 years old leaving his entire estate, just over $62,000.00, to two of his five children and leaving nothing to his wife of 71 years who resided in a nursing home. The testator’s wife suffered from dementia and a stroke and had been living in a long term care facility since 1997.

Alberta’s Office of the Public Trustee, as the trustee of the wife’s property, brought an application pursuant to Alberta’s Dependant’s Relief Act for an order that the residue of the estate be paid to the Public Trustee for the proper maintenance and support of the wife. The Respondents were the executors of the testator’s estate.

The Court found that the wife was a dependant of the estate and adequate provisions were not made for her maintenance. The Court rejected the Respondents’ argument that the support claimant currently had a surplus of income over expenses for each month, including a trust for unanticipated expenses, and no need for any additional support. The Court found that while the support claimant may presently be able to meet her expenses it does not mean that she will always be able to nor does it mean that she should be deprived of her entitlement and stated that the testator had both a legal and moral obligation to provide support to his wife. The Court also noted the length of the marriage and the extensive contributions the wife had made to her husband’s estate.

Thanks for reading,

Diane Vieira

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Listen to Dependency and Undue Influence

This week on Hull on Estates, Diane Vieira and Paul Trudelle discuss dependency and undue influence in the case of Bale vs. Bale. This topic is also discussed by Paul Trudelle in his blog post:

If the link does not work, cut and paste the following URL into your browser:

http://estatelaw.hullandhull.com/2008/04/articles/topics/estate-trust/dependency-and-undue-influence/

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A Vanity Fair article published late last year writes on the relationship between playwright, Arthur Miller and his son, Daniel Miller who was born with Down Syndrome. Daniel was born in 1966 and institutionalized one week after being born and apparently while other family members kept in touch with Daniel, Miller rarely visited him or spoke of him.

 

When Miller died in February 2005, very few people knew of Daniel’s existence. Only one obituary notice mentioned Daniel and Miller’s own memoirs include no mention of Daniel.

 

Six weeks before his death, Miller made Daniel a full and direct heir equal to his other three children. While Daniel is not mentioned in the Will directly; separate trust documents, created the same day and sealed from public view, make Daniel an equal heir to Miller’s estate.

 

The article speculates that this was likely done contrary to legal advice as Miller’s bequest makes Daniel too wealthy to receive government assistance and a special trust was not created that would allow Daniel to inherit from the estate and continue to receive government assistance. In fact, Connecticut’s Department of Administrative Services issued a reimbursement claim to the estate for Daniel’s care since infancy and the estate is settling the claim.

 

Miller’s relationship with Daniel was complex and only Miller would be able to answer as to why he decided to make Daniel, who he did not publically acknowledge during his lifetime,an equal heir to his estate.

 

Until tomorrow,

Diane Vieira

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I recently came across two entertaining and informative blogs about practice management for lawyers and law firms.

David Bilinsky is a practice management advisor and staff lawyer with the Law Society of British Columbia. He writes and lectures on the subject of legal practice management and his blog,  http://thoughtfullaw.com covers topics such as record management, technology, and law firm strategies.

This month, he wrote a series a blogs on the security of electronic documents that many lawyers will be interested in reading.

Allison Wolf's insightful blog, www.thelawyercoach.com, discusses business development and legal marketing ideas for lawyers. Wolf, the founder of her own company that coaches lawyers on business development, offers her advice and links to the most recent articles on this subject.

Both blogs also comment frequently on personal development of lawyers and what lawyers can do to renew themselves and their legal practices.

Thanks for reading,

Diane Vieira

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Following up on Allan Socken’s blog of March 31, 2008 entitled “What is Legacy Coaching”, I came across an article in the American College of Trust and Estate Counsel Journal entitled “Is Your (Ethical) Will in Order?” (2008) 33 ACTEC Journal 154 by Zoe Hicks. In her article, the author reviews what an Ethical Will is, what types of topics are normally covered, the format of the Ethical Will, and how estate planning practitioners have embraced the concept of advising clients with respect to leaving an Ethical Will.

Essentially, an Ethical Will is a testament of what you want your survivors to know, rather than what material assets you want them to have. Ethical Wills can include expressions of wisdom, values and beliefs of the “testator”, reminders of heritage, apologies, explanations of actions taken or not taken, regrets, expressions of love and gratitude, and words of encouragement.

Ms. Hicks sets out numerous extracts from Ethical Wills so that the reader can get a flavour of the types of matters that an Ethical Will can to address. She concludes by observing that an Ethical Will can be a valuable exercise for both the writer and the recipient.

For more information, read her article, or visit www.ethicalwill.com. This site explains the concept, and provides several examples of Ethical Wills in different forms. 

Have a great weekend.

Paul Trudelle

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On April 23, 2008, I attended at the Ontario Bar Association’s Dinner with the Estates Lists Justices.

The evening began with a review of the Case of the Month by Barry Corbin. Barry discussed the Court of Appeal decision of Madore-Ogilvie v. Ogilvie Estate (This case was also discussed by Sean Graham and Rick Bickhram in Hull on Estates, Episode #103.) This case dealt with the inclusion of jointly owned insurance polices as “section 72” assets under the Succession Law Reform Act.

Following Barry’s excellent presentation, Madam Justice Allen, Madam Justice Conway and Mr. Justice Brown took to the dais. They discussed various ways that the bar can work with the bench in order to facilitate the decision-making process, while advocating the client’s position.

Practical tips include organizing the court file, filing meaningful confirmation forms, attending with a working draft of the Order Giving Directions, and filing chronologies and lists of beneficiaries were appropriate.

The importance of filing a Factum was emphasized. These are said to be extremely helpful, and not filing a Factum should be an exception rather than the norm. 

More tomorrow.

Paul Trudelle

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Mom dies, leaving a will that divides her estate among her three sons. The only trouble is that before she died, Mom gave the farm to one of her sons. Accordingly, the other two sons receive nothing upon Mom’s death. 

This fact situation was recently considered by Jenkins J. in Bale v. Bale.

The two disappointed sons were not actively involved in Mom's care. The other son lived with Mom, and helped her extensively. The court found that Mom relied on the one son for her care and well being.

The lawyer on the transfer said that Mom, who was 93, understood the transaction and what she was signing. A doctor confirmed her capacity.

Notwithstanding this capacity, the judge concluded that the relationship between Mom and son was one of dependency. The presumption of undue influence was triggered. Although the court found that Mom had great affection for her one son, this was not sufficient to validate the transfer of the property to him. The court concluded that the transfer of the farm was influenced by Mom’s dependence on the one son. The transfer was set aside.

When considering the value of an estate, one should consider any transfers by the deceased prior to his or her death; particularly where any such transfer might have resulted from undue influence due to a dependency.

Thank you for reading

Paul Trudelle

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In determining whether to litigate, or how far to go with a claim, a paramount consideration must be the costs involved, and the prospect of their recovery or payment.

Recently, I came across a case that highlights the issue. There, a wrongful dismissal matter, the court awarded the employee 2 ½ months’ notice, or $9,166. However, in the costs ruling, the judge noted that the employee’s own costs, according to the employee’s bill of costs, were $14,246. (Actual costs incurred by a client are often in excess of the costs claimed in a bill of costs.) The judge, for various reasons, did not award any costs to any party.

There are a myriad of other examples.

There is also the old joke about the man who said he only went bankrupt twice: once when he lost a lawsuit, and once when he won.

Parties often state that it is the “principle” of the matter that warrants the fight. However, “principles” come with a cost, and this reality must always be kept in mind.

Parties to a piece of litigation must be aware of these costs, and these costs should inform, to a considerable extent, the actions of the parties. Hopefully, all parties will take reasonable approaches in light of the costs of proceeding to court.

This, however, is easier said than done, particularly in the context of estate litigation. Here, emotions are usually close to the surface, and often interfere with reasonable judgment. One of the functions of the litigation lawyer is to attempt to calm these emotions, and to bring a reasoned, objective vision to the table.

Thank you for reading,

Paul Trudelle  

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It’s just about tax time, so I thought I would briefly discuss the taxation of executor compensation.

The basic premise is that executor compensation is taxable in the hands of the recipient. It is either income from an office or employment (if the executor is not in the business of being an executor) or income from a business (if the executor is in the business of being an executor, or if such a function is in the executor’s usual course of business). Various consequences flow from the distinction, such as allowable deductions, and withholding requirements for EI and CPP.

CRA takes this obligation to report executor compensation quite seriously. An example of the lengths to which CRA will go is found in the decision of Oolup v. The Queen. There, Ms. Oolup, the executor held a joint account with her grandmother, the deceased. She was advised by her lawyer that upon the death of the deceased, the joint account became hers, by right of survivorship. However, for “reasons of family harmony”, she decided to keep only $10,000 from the joint account, and divided the rest with the deceased’s next of kin.

CRA took the position that the $10,000 was executor compensation, and was therefore taxable, and they assessed Ms. Oolup accordingly. To get to this point, they argued that the joint account was held on a resulting trust for the estate. The CRA argued that the presumption of resulting trust applied, and was not rebutted. Accordingly, they asserted that Ms. Oolup received the $10,000 from the estate, as executor compensation.

Luckily for Ms. Oolup, she was able to rebut the presumption, and the court found that the joint account funds became her property upon the death of the deceased. She received the money by right of survivorship. Therefore, her keeping $10,000 was not receipt of compensation by her, and was not to be included in her income.

Thank you for reading,

Paul Trudelle

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Once in a blue moon I find myself considering and marveling at the genius and breadth of the Common Law.  I am amazed by the Common Law’s ability to function effectively in what otherwise appear to be remarkably different parts of the world, particularly in the area of Estates and Trusts.

Of course, this phenomenon is a historical after-effect of the size and reach, particularly in the 17th to and 19th Centuries, of the British Empire.  Military history buffs will know this was largely attributable to the Royal Navy’s increasing dominance over the oceans of the world.  During that time (and before), the Common Law spread from the relatively tiny islands of the UK to vast and diverse areas: from India, Hong Kong, parts of Africa and Singapore to tiny island states in the Caribbean such as Barbados, the list goes on and on.

No doubt Estate Law has its local variants in each location, but I am more often than not struck by the similarities.  The attached article about Wills and Probate in Hong Kong would not be much different in Ontario, and I expect most non-lawyers would be hard-pressed to spot the differences.  Here’s a website encouraging people to outsource legal services to India, including trust deeds, although to my mind that may exaggerate the cross-jurisdictional similarities of Estates law. It seems to me it would still be best to retain a local lawyer in whatever jurisdiction you’re dealing. For the truly exotic, review this website talking about how the governing Estate law in Singapore shifted from the Common Law to Islamic law.

With Canada’s direct reliance on British jurisprudence lasting until 1949 when final appeals to the Judicial Committee of the Privy Council were ended, we certainly have played our role in this pattern and continue to do so.

Thanks for reading.

Sean Graham

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By all indications, the abuse of Powers of Attorney to misappropriate assets is on the rise. 

When a grantor gives powers to an attorney to manage the grantor’s property, it allows the attorney to assist the grantor in managing property, and in fact to take over management of property altogether if the grantor does not monitor the situation.  Often the very goal of the grantor is to allow someone else to completely take over management of one’s property due to age, potential incapacity or other reasons, so the grantor has no intention to monitor.

This is often a reasonable choice, and the law holds attorneys to a high standard to protect grantors.  However, the potential for abuse is immense.  Abuse can be willful or simply negligent, but in either case the damage can be devastating and irreversible.  In many cases attorneys who stray from their duties are never made to account, although they have that obligation.  Often they live with the grantor and have little or no oversight.  The legal fees in securing justice are generally high, and the chances of recovering on a judgment can be low.  In the result, legal proceedings might be impractical, however blatant abuse may be in a given case.

The best defence against this problem is awareness, so these varied results from a quick internet search are somewhat encouraging: a Florida law firm website; an excellent Vancouver Sun article; a synopsis of a TV news story; the New York Attorney General’s website; a news report of a Philadelphia trial; and a news release from Prince Edward Island’s provincial government commenting on the problem for World Elder Abuse Day.

This is the tip of a very large iceberg: by all indications lawyers, financial institutions, governments and of course the public will be wrestling with a growing problem for years to come.  

Thanks for reading.

Sean Graham

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In Re Cogan, the Ontario Superior Court of Justice addressed the issue of contingency legal fees. The lawsuit involved the claim of a minor suffering from cerebral palsy, with the plaintiffs alleging that the obstetrician and nurses attending at the child’s birth were negligent.

The case settled for the sum of $12,543,750. The lawyers for the plaintiffs wanted to be paid $4,174,928.45, or roughly 33.33%, on the basis of a contingency fee agreement between them and the minor’s litigation guardian. A contingency fee agreement is an arrangement whereby a lawyer agrees to be paid a percentage of recovery in the lawsuit. Where there is no recovery, the lawyer works for free. Where there is a substantial recovery, the lawyer benefits accordingly.

The Court was asked to rule on whether the contingency fee agreement should be allowed. In its lengthy weighing of both sides, the Court found, among other things, that: The agreement was obtained in a fair way; 2. The agreement was reasonable; 3. The risk to the lawyer of not getting paid and not getting reimbursed for disbursements was high; 4. The case was complex and required significant time commitment and delayed payment; and 5. The result achieved by the lawyer was exceptional.

The Court also commented on the importance of access to justice for vulnerable plaintiffs like the minor and the role contingency agreements can play in fostering that goal.
Therefore, the Court upheld the agreement.

Thanks for reading.
Sean Graham

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A massive $110 million lawsuit has been brought by the Attorney General’s office in California against a “living trust mill that tricked senior citizens into using their retirement savings to buy annuities that often made less financial sense for the elderly victims but earned the con artists substantial commissions and other income.”

Estate Planning Law Firms.com quotes the Attorney General as saying the following:

“The perpetrators of this fraud deceived seniors into using their hard-earned retirement nest eggs to buy unneeded annuities that actually undermined their financial security. Living trust mills such as this one violate not only the law, but the trust of their elderly victims.”

What surprised me was the apparent scope of the alleged organization being sued by the Attorney General: between 250 and 300 sales agents and another 80 telemarketers were involved, allegedly soliciting elderly consumers through mailings, seminars, telemarketing, presentations at senior centers and other means, marketing their services as a way to avoid probate and estate taxes, then eventually convincing seniors to buy annuities that were, according to the Attorney General, not in their best interest.

Without commenting on this particular case, there does seem to have been a disturbing and growing trend in recent years of attempts to deprive the elderly of the considerable wealth concentrated in their hands.  

One more reason, if any were needed, to take great care in choosing investment and estate planning advisors.

Thanks for reading.

Sean Graham

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Listen to The Business of Being an Estate Trustee.

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the business side of being an Estate Trustee and talk about what to do with assets.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

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An interesting excerpt from Diane Francis’s new book Who Owns Canada Now? was published in Saturday’s National Post and touches in some detail on offshore trusts as a mechanism to avoid Canadian taxes.

Aside from briefly lamenting my non-mention in a book chronicling Canada’s wealthiest, I was struck by the contradiction in the apparent approaches of different wealthy Canadians to the opportunity to avoid taxes. According to Ms. Francis, one common tax avoidance mechanism involves settling assets in an offshore trust, apparently becoming a fairly common option for the wealthy. It seems to require spending six months of the year out of the country, something I doubt many Canadians would baulk at after the dreadful winter we’ve just suffered through.

What really struck me about the article were the quotes from wealthy Canadians who refuse to avail themselves of this option on the basis that as Canadian citizens who became wealthy in Canada, they should pay Canadian taxes and not shelter assets.

Here’s hoping I face this touchy dilemma myself – the sooner the better!

At any rate, an interesting article offering a good précis of both sides of the issue and much food for thought.

It will be even more interesting if these trusts begin to be litigated. Certainly English jurisprudence seems to deal with them often, if only because the Judicial Committee of the Privy Council continues to take appeal cases from the Courts of former British colonies.

Thanks for reading.

Sean Graham

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Mr. Justice Brown presented a paper at the recent OBA CLE Seminar Emerging Trends in Estates and Trusts: What Does the Future Hold? Mr. Justice Brown’s paper was adeptly titled One Judge’s “Wish List”: Best Practices on the Estates List. Mr. Justice Brown sits in Toronto and is a member of the Estates List. In one section of his paper, Mr. Justice Brown wrote as follows under the heading “Who is your audience?”

“In Toronto the Superior Court of Justice operates an Estates List. Each week one judge is assigned to sit exclusively on the Estates List and another judge is available for the last three days of the week if the need arises. Estates List judges are drawn from one of the two Toronto civil teams or, occasionally, from the civil long trials team. Usually newly appointed judges are assigned to a civil team for their first year on the bench. As a result the judges who hear matters on the Estates List more likely than not will come from a civil or commercial litigation background, but will not necessarily possess specialist training in estates or trusts.

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Tags: Estate & Trust, Justin W. de Vries, Justin de Vries, Litigation, estates, judgment, law