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

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

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

Ways to minimize difficulties include:

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

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

Thanks for reading,

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

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

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

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

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

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

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

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

Thanks for reading,
Saman M. Jaffery

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

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

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

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

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

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

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

Until Tomorrow,

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

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

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

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

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

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

Thanks for reading,

Saman M. Jaffery

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

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

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

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

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

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

Thanks for reading,

Saman M. Jaffery

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

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

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

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

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

Until tomorrow,

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

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

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

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

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

A very worth-while read.

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

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

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

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

Have a good day,

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

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BMO Financial Group announced the results of a survey yesterday revealing that while the overwhelming majority of Canadian boomers had some basic estate plan in place, almost half of them have not updated them in the last ten years.

The survey conducted by Leger Marketing polled 1002 Canadian boomers – defined as being 45 years of age or older, who hold investible assets (including real estate) worth $500,000 or more.

The survey provides some interesting statistics:

• 85% of Canadian boomers have a will;
   
• almost 50% of those who had wills had not revisited or updated their wills in 10 years;
   
• the top reasons Canadian boomers prepared wills were: ensuring their assets are distributed as they wished (36%); avoiding family problems once they have passed away (34%); and protecting and looking after their family (28%);
   
• those who had updated their wills were motivated to do so for the following reasons: a significant change in wealth (25%); change in a beneficiary's marital status (21%); a death in the immediate family (11%); and a birth in the immediate family (11%);  
   
• of the 15% of Canadian boomers who did not have a will in place, the main reason cited was lack of time (35%);
   
• 62% indicated that they had spoken to their children or beneficiaries about the contents in their will;
   
• 69% of those who had a will also had a power of attorney – of these respondents, 90% indicated that they had a power of attorney for property and 87% indicated that they had a power of attorney for personal care.

Thanks for reading,

Saman M. Jaffery

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An article by Denise Appleby posted yesterday on the Globe and Mail website sets out the top three retirement savings tips for 55 to 64 year olds.

That group, the article advises, is more acutely aware of the need to save for retirement, and are at a critical time in their lives to assess how financially prepared they are for retirement.

The tips are:

1. Assess whether you are financially ready to retire.

This requires that you assess your assets and needs. The article has links to tools to help with these assessments.

2. Re-Assess your portfolio.

As retirement nears, many move their investments into more conservative vehicles.

3. Pay off high interest debts.

This would likely be good advice for any age group.

The article concludes by suggesting that individuals continue on their path towards having their retirement savings on track, and increase savings where possible. The author notes that saving more than required will help cover unexpected expenses.

From an estate and capacity planning point of view, we see on a daily basis the high cost of health care for the elderly, and the devastating effect that this can have on a retirement plan.

Thanks for reading.

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

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The effect that separation agreements may have on the entitlements of spouses upon the death of one of the parties has fuelled a great deal of litigation. 

One of the issues that can arise is the effect that the separation agreement has on the last will and testament of the deceased spouse. While the Succession Law Reform Act provides that a bequest in a will to a former spouse is revoked upon the termination of a marriage by judgment absolute of divorce, that is not the case where there is only a separation.

In Makarchuk v. Makarchuk, 2011 ONSC 4633 (CanLII), the parties separated, and entered into a separation agreement. The separation agreement provided that, subject to any additional gifts made in any will validly made after the date of the agreement, the parties released all rights that they may acquire under the laws of any jurisdiction in the estate of the other.

The husband died, without making a new will, and without revoking a prior will which provided that his entire estate was to pass to his now separated spouse.

The court was asked to interpret and apply the separation agreement so as to exclude any benefit to the surviving spouse. The court refused to do so. The court held, applying Eccleston Estate v. Eccleston, 3 R.F.L. (5^th) 54, that the language of the separation agreement was not broad enough to apply to rights acquired under the will.  The release in the separation agreement applied only to statutory rights. The release did not “trump” the will.

It is important for separating spouses to consider bequests made in prior wills, and consider revising their estate plan.

Thank you for reading.

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

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I blogged earlier this week on how your marital status can have a significant impact on your estate plan. I focused on the apparent recent trend to not legally marry, but to remain in a common-law relationship, and the particular challenges that an estate faces in such a circumstance. What I began to think about shortly after writing my previous blog was how legal marriages can have equally significant impacts on your estate plan.  

With close to 35% of Canadian marriages falling into the second (+) marriage category, the challenges faced by such couples are being addressed routinely and bring unique estate planning concerns.  Financial planning during your lifetime has a direct impact on your estate, and can often be the difference between a family estate fight and a straightforward estate administration.

We no longer live in a world where the ‘nuclear family’ is the norm. Families now come in a variety of definitions, which, from an estate planning perspective, causes a variety of other issues. A recent article in the Globe and Mail addresses some of the issues that arise in second and third marriages and financial planning, including concerns from adult children about ‘gold-digging’, spending habits, and obligations to previous spouses amongst others. 

A particular challenge for individuals marrying for a second time can include melding of families, children, assets and coming to a general understanding, for all involved as to how your savings will be passed on. Perhaps a life interest for your spouse ought to be considered, or perhaps a complete separation of assets during marriage, with particular funds used for joint expenses, making the question of inheritance somewhat easier. Whatever the ‘perfect’ solution to the various problems that arise due to a second marriage, the key to dealing with financial issues is to know what those issues are to begin with.

If blended families can take steps to deal with the financial issues up front, explaining intentions to their children for both their choices during lifetime and the choices for after their death, the courthouses might become a tad quieter, and you may be able to rest in peace. 

Stay Tuned,

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

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We spend the majority of our lives working, saving for retirement and dreaming of success, often defined as the ‘Freedom 55’ plan. Whether you are still paying off student debt and just starting to consider long term investment, or are but a few years away and wondering if you’ve done enough to live the retirement you’ve always wanted, a recent article in the Financial Post may prove useful as it takes a close look at the dilemmas and financial considerations an ‘early’ retirement may bring.

Many of us will face the same dilemmas that Pilot ‘Jack’ faces in the article. After working hard, even on the brink of freedom, we may have to make tough decisions that impact daily lifestyle during retirement and your Estate. The nuances associated with choice in pension benefits and the impact on those we will eventually leave behind us is well explored in the above-noted article, and certainly sheds light on Estate Planning issues you may otherwise have not considered. The number crunching and options analysis faced by ‘Jack’ will become more and more prevalent across our country as the boomer generation proceeds to yet another milestone en masse.

The options available from the Canadian Government to opt for early retirement and the slight percentage benefit to claiming same in 2011 may throw a curveball into your plans. Whatever your current considerations, it is never too early to take a close look at your retirement goals, in particular what benefits will exist on your death and thereafter. An Estate Plan can be in flux, but knowing the bottom lines should help make all your decisions easier.

Thanks for reading,

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

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When applying for a Certificate of Appointment of Estate Trustee with a Will, the applicant must be certain that the Will annexed is the Last Will and Testament of the Deceased. Ideally, the testator will have discussed the location of their Last Will with a trusted family member, friend or professional and it will be easily located at the appropriate time. 

If this is not the case, there are a number of places to begin your search for a Last Will, as discussed by Sean Lawler in his article “Wills Kept by the Law Society of Upper Canada” in the most recent issue of Deadbeat, a publication of the Trusts and Estates Law Section of the Ontario Bar Association.

Some of the places Wills are often kept include the following:

1. The drafting lawyer's Wills vault.
2. Among the Deceased's possessions.
3. In a safety deposit box.
4. With the Executor.
5. With an attorney for property or for personal care.
6. On file with the Superior Court of Justice pursuant to Section 2 of the Estates Act, which establishes a Wills depository administered by local Court offices.

If you are unsuccessful locating a Will as above, you can place an ad with the Ontario Reports or other publication to determine if another lawyer who acted for the Deceased, or any other person, is in possession of a Last Will.

One other place to look is the Law Society of Upper Canada (“LSUC”). The files of many lawyers who die, retire, or are disbarred are transferred to LSUC’s Trustee Services Department. Most files are now stored electronically.

LSUC keeps over 45,000 Wills, a number that increases by approximately 3,000 per year. The Wills register can be searched by the name of the lawyer or by the name of the Testator.

The key takeaway here is that estate planning should not be a secret. Discuss your Will with your family (contents and location) and make it easy on loved ones when the time comes to probate your Will.

Sharon Davis - Click here for more information on Sharon Davis. 

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In our modern society more and more people choose to remain in common law relationships rather than to marry. Certainly many think that few differences distinguish a common law relationship from a married one as society has responded to practical reality by making common law spouses eligible for pension benefits, family insurance benefits and spousal support. No wonder some people think it is all the same whether they are married or not. However, what many fail to realize is that it makes a very big difference with respect to property rights - both in life and after death.

A common law spouse of a deceased who has died intestate (without a Will) has no entitlement as a beneficiary of the deceased partner’s estate.   It is not uncommon that a dedicated common law spouse of 20 or 30 years is faced with the prospect of the estate of their loved one, which they helped to build over the years, going to the blood relatives, who are the legal heirs according to legislation; and often being people who never had any social relationship with the deceased whatsoever.  

If a person dies intestate, Part II of the Succession Law Reform Act  governs who is entitled to their estate. In the Act, a spouse is defined as a married spouse only. Here is the order in which family of a deceased is entitled to take:

1.      If there is spouse and no children the spouse takes all.

2.      If there is a spouse and children, the spouse gets the first $200,000.00. 

3.      If there is one child, the residue goes to the spouse and the child equally.

4.      If more than one child, the spouse gets one-third of the residue and the children share the other two-thirds equally.

5.      If there is no spouse, the estate goes to the children equally.

6.      If no children, the estate goes to the deceased’s parents equally.

7.      If no parents, the estate goes to the deceased’s siblings; if a sibling pre-deceased, that sibling’s share goes to the deceased sibling’s children.

8.      If no siblings, the estate goes to the nephews and nieces.

9.      If no nephews and nieces it goes to the next of kin of equal degree of consanguinity - that’s where it gets complicated and complete strangers end up inheriting. 

10.   If no next of kin, the estate escheats to the crown.

Lesson? Make sure you have a Will!  

Sharon Davis - Click here for more information on Sharon Davis. 

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In early February I blogged on a case that was before the British Columbia courts dealing with the rights of children of sperm donors to information from their biological parent. On May 19, the British Columbia Supreme Court released its ruling in the Pratten v. British Columbia (Attorney General), 2011 BCSC 656 CanLii, finding that the British Columbia Adoption Act was unconstitutional. 

The court in Pratten was not asked to deal with any questions of inheritance or rights to an estate, but it seems likely that in its wake estate planners and estate litigators will have to put on their thinking caps and get creative. The impact of this decision could take years to unfold and in the interim, there are likely to be a lot of individuals who may be reconsidering their estate plans.   Some of the changes and concerns that may impact our field, and individuals, are raised in the most recent issue of Lawyers Weekly, in an article by Jeremy Hainsworth. 

This decision has the potential to alter a variety of legal fields, and will certainly impact the British Columbia legislature. Whether that impact will be felt across the country is something only time will tell. 

Until Tomorrow,

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

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No more lineups at your local ServiceOntario kiosk.  No more downloading forms (only to have them wait patiently by the front door for the mail strike to end, but I digress).  At long last, residents of Ontario can now register online as an organ and tissue donor on a new website: BeADonor.ca.

In August 2010, I blogged about the tedious and onerous process of organ donor registration in the province that existed at that time.  Adding to the confusion is the widely held belief that carrying a signed organ donor card is tantamount to formal registration.  It isn't, and therein lies the glitch; a signed donor card is not recorded in the Ministry of Health and Long-Term Care's database, is often out of date, and is then subject to conflicting family wishes. 

There is no cost to register.  Online registration is easy, convenient, and secure.  1,500 people in Ontario are waiting for an organ donation right now.  Ontario's Health Minister, the Honourable Deb Matthews, issued a challenge on Tuesday when she expressed her hope that 1,500 new people will register by the end of the week.  If registering to be an organ/tissue donor has been on your 'to do' list for a while, take a few minutes and cross this one off. 

BeADonor.ca.

Jennifer Hartman, guest blogger