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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In a prior blog by Paul Trudelle, a partner at Hull & Hull LLP, he explained the decision of Rooney Estate v. Stewart Estate (2007). In Rooney Estate v. Stewart Estate, the court highlighted some of the roles the Estate Trustee and the estate solicitor and held responsible for including, among other things, arranging for the funeral and disposition of remains.

Arranging for the funeral and disposition of remains can be burdensome, especially if the estate trustee was related to the Deceased. This task becomes even more daunting when they are dealing with the expenses of a funeral in which case, fewer are in the mood to bargain. Regrettably, this leads many spending more then they have to. 

I recently came across an interesting article, How to Cut Funeral Costs, which was published in The Wall Street Journal. Under this article, the author provides us with a few tips on how to keep costs reasonable when arranging a funeral service:

 

1.                  Learn your Rights: Funeral homes are prohibited from charging certain fees, and there may be a requirement that compels funeral homes to provide a written fee list upon request

2.                  Pre-plan: “Have a conversation with your family about what you want and what’s going to be meaningful to them.”

3.                  Consider pre-owned plots: Purchasing a pre-owned plot has always been a common practice; but the purchaser has moved out of the area where his plot is purchased. 

4.                  Compare Funeral Home Prices: it’s worthwhile to shop around. Prices vary from one home to another

Thank you for reading,

Rick Bickhram - Click here for more information on Rick Bickhram.

 

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In an aging society, our elderly can easily fall prey to predators looking to exploit them. Elder abuse can take many different forms: physical, psychological or financial abuse, or simply neglect.

I read an article yesterday about Huguette Clark, the 104 year old heiress whose wealth is estimated at half a billion dollars. During her lifetime, Clark made generous gifts towards those who cared for her. For instance, it is reported that Clark gifted $10 million dollars to her social secretary. 

It is reported that Clark’s wealth is being managed by her lawyer and her accountant. 

A former paralegal who worked for Clark’s attorney, has now blown the whistle on what she alleges is improper behavior by Clark’s attorney and accountant. According to reports, it is alleged that they “drafted a will that would have left money to [one of them], trying repeatedly to persuade her to sign it — then joked about their client and cursed her behind her back when she would not sign the will.” It is also reported that her lawyer allegedly solicited from Clark $1.5 million dollars to build a security system for a community where his daughters and their families live. In addition he allegedly sold a Stradivarius violin for $6 million dollars and a Renoir painting for $23.5 million. 

A criminal investigation has now been launched by the Manhattan district attorney, who has the Elder Abuse Unit of the New York County District Attorney's Office looking into the handling of Clark's finances.

It bears repeating that the complaints at this stage are unproven allegations. Nonetheless, the mere thought that this could happen provides us with a dreadful reminder of what the elderly face in our society today.

 

Thank you for reading,

 

Rick Bickhram - Click here for more information on Rick Bickhram.

 

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Last Friday, the Ontario Ministry of Health announced plans to introduce legislation later this month that will allow the province to expand its drug database to track prescription drugs. The narcotics database will identify prescription ‘hot spots’ and alert officials when a patient attempts to fill prescriptions from multiple doctors at multiple pharmacies. Prescriptions under both public and private drug plans will be monitored. [Currently, the tracking system only tracks drugs prescribed under a provincial program that funds meds for seniors, welfare recipients and the disabled.] Provincial Health Minister Deb Matthews indicates that the plan will also work with regulatory groups like the College of Physicians and Surgeons of Ontario to create ‘better pain management strategies for its members’. The proposed narcotics strategy has received resounding support from both the Centre for Addiction and Mental Health (CAMH) and the Ontario Pharmacists’ Association.

Earlier this year, I blogged about the issue of ‘doctor shopping’, defined as the practice of visiting numerous doctors, dentists, or pharmacies to fraudulently obtain prescriptions for non-medicinal use. Of particular concern are narcotics and other controlled substances, including painkilling opioids (including morphine, codeine-containing Tylenol 2s, 3s and 4s, Percocet, Oxycontin, and Fentanyl), stimulants (amphetamines such as Ritalin) and sedatives (such as Valium, Xanax, and Ativan).  Some stark statistics:
• In the past decade, prescriptions for oxycodone-containing drugs jumped 900% in Ontario. Last year, under the OHIP drug plan, the province spent over $150 million for narcotics, half of which was for Oxycontin.
• 18% of students (Grades 7 – 12) report using prescription opioids non-medicinally in the past year. The overwhelming source for the students’ opioids was not schools, or the street, but their own homes.
• Ontarians, per capita, use three times more prescribed narcotics than patients in other provinces.
• Last year, the Canadian Medical Association Journal reported that in Ontario, accidental deaths due to opioid use exceeded deaths from HIV.

As an aside, I am curious: In estate proceedings where testamentary capacity is in dispute, will the contents of the narcotics database be accessible pursuant to court-ordered production of “all relevant medical records”?
 

Jennifer Hartman, Guest Blogger
 

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Chinese real-estate tycoon, Yu Pengnian, announced this past April that he was donating the last $500 million of his fortune to his charitable foundation on philanthropy. He was asked by a reporter, whether his children were angry about his donations and responded by stating: “They didn’t oppose this idea, at least not in public.”

|It is not uncommon for billionaires to donate their fortune. For instance, Warren Buffet and Bill Gates started a campaign called "The Giving Pledge." At that time, they had four billionaires pledge to give away half of their fortune upon their death.  Now there are 40. My colleague, Nadia Harasymowycz, recently blogged on this topic, which can be found here: Leaving it all to Charity – A Good Plan or an Estate Litigator’s dream.

The idea of giving away your fortune is a strong shift from the traditional idea of passing down your wealth, from generation to generation. Why this switch in estate planning? Yu stated: “If my children are competent, they don’t need my money. If they’re not, leaving them a lot of money is only doing them harm.”

Yu’s message to wealthy families put simply: “Too many wealthy parents focus on preventing their children from failing. But in doing so, they also deprive their children of the joys of self-made success.”

Thank you for reading,

Rick Bickhram - Click here for more information on Rick Bickhram.

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Over the weekend, I was reading some international publications, when I came across a rather interesting article in The New York Times about Ben Novack Jr., and his Batman collection.  Novack is said to have the second largest, Batman themed collection, in the country.  To give you an idea of how big this collection is, Novack is said to have a full-size replica of the Batmobile!

About one year ago, Novack was found murdered at a hotel in New York, where he was staying with his wife.  The hotel records showed that no one had entered the hotel room with a key before the killing of Novack.  Novack's wife reported to the police that "she went down to breakfast about 7 a.m., leaving him asleep. When she returned 40 minutes later, she said, she found him bound and bloody on the floor."  Given the hotel records, and other circumstantial evidence, the police did not believe Novack's wife. 

It is reported that her goal was to seize control of Novack's fortune.  How much was his estate worth? $5-6 million dollars! 

Earlier this year in February, a Florida judge named Ms. Novack as the personal representative of Novack's estate before reversing the decision three days later. He ordered her to post a high bond before becoming personal representative, but Novack's wife never posted the bond.

The article does not mention whether Ms. Novack was convicted with the murder of her husband, however, in Ontario the Forfeiture Rule is well founded law for beneficiaries who perpetrate a criminal act against the testator.  The Forfeiture Rule was quoted in Re Benson Estate,  "A sane person who commits murder is debarred by public policy from taking any benefit under the Will or intestacy of his victim."

Thank you for reading,

Rick Bickhram - Click here for more information on Rick Bickhram.
 

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The August 13, 2010 edition of Lawyers Weekly featured an article by Kimberly Whaley with the above-captioned title. The article dealt with the relationship between marriage, property, and estates and the resulting risk of predatory marriages.

I think it’s safe to presume that the majority of people believe that once they have executed a Will, their carefully considered estate plans are locked in. However, the provisions people make for their loved ones upon their death are not exactly locked in. According to Ontario law, marriage automatically revokes a Will.

While shocking for many people, there are ways to avoid this unwanted consequence of marriage. For instance, where a person executes a Will in contemplation of marriage, his or her testamentary plans will survive the marriage.

The automatic revocation of a Will can lead to unfortunate and unintended results, particularly when individuals have capacity to marry, but lack the capacity to manage property and/or execute a Will. In such circumstances, a person who lacks testamentary capacity may end up the target of a greedy opportunist looking to marry for money.

In Ontario, where a person’s Will is revoked upon her marriage and she dies, her estate is distributed under succession law as if she died without a Will. According to the Succession Law Reform Act (“SLRA”), when the deceased, who dies intestate, is survived by a spouse and there are no issue, the surviving spouse takes all property of the deceased’s absolutely. Where the deceased dies with a net value of more than the “preferential share” and with a surviving spouse and issue, the surviving spouse is entitled to the preferential share, being $200,000, absolutely. After the preferential share is distributed to the surviving spouse, the surviving spouse is entitled to a distributive share, which varies with the number of children or issue surviving. If, for example, there is a surviving spouse and one child, the excess above and beyond the $200,000 is allocated equally between the spouse and the child. Where there is a surviving spouse and more than one child, the spouse is entitled to a third of the excess and the remainder is divided equally between the children. 

The scenario that immediately comes to mind is one where an elderly and frail individual is preyed upon by a younger person who sees the marriage as an opportunity to abscond with the property of the elderly spouse who lacks capacity to manage property during his/her life or execute a Will.

In my next blog, on September 6, 2010, I discuss this topic in more detail, focusing on why predatory marriages are, perhaps, too easily accomplished.  

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For my final blog for the week, I want to discuss an article recently featured in Forbes.com, which considers the importance of having a Will. 

If an individual dies without a Will, he is said to have died intestate. When a person dies intestate, their assets are distributed pursuant to the intestate provisions contained in the Succession Law Reform Act.

If a person dies with a Will, he is said to have died testate. In such circumstances, the deceased’s assets are distributed in accordance with his last wishes as set out under his Last Will and Testament.

Under Glenn Curtis’s article, “Why You Should Draft a Will” he sets out the benefits of having a Will, such as:

1.                  Limiting family disputes;

2.                  Wills can outline personal preferences; and

3.                  Wills make quantifying and distributing assets easier.

By comparison, Curtis argues that not having a Will could place significant burdens on loved ones, such as it could take a very long time to compile an accurate list of an individual's assets; it could also take a prolonged period of time to identify and locate potential beneficiaries. “Unfortunately, until this process is complete, money may not be distributed, even to legitimate and known beneficiaries.”

Curtis concludes his article with some wise words: “Individuals seeking to prevent family infighting, and who want to ensure that their spouses, children and other relatives are properly taken care of after they die would be wise to consider drafting a will.”

Thank you for reading, and I hope you have a great weekend,

Rick Bickhram -  Click here for more information on Rick Bickhram.

 

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Social Media is not a fad and is fundamentally changing the ways we interact and communicate with others.  Two of the more popular social networking websites, Twitter and Facebook, recently implemented policies that set out guidelines regarding a user’s account once they have died.

Under Twitter’s policy, a person can either request that the deceased user’s account be removed entirely or receive an archive of all the deceased user’s tweets offline once they have provided Twitter with the following information:

1.                  Your full name, contact information (including e-mail address), and your relationship to the deceased user; 

 2.                  The username of the Twitter account, or a link to the profile page of the Twitter account.  

 3.                  A link to a public obituary or news article.

By comparison, Facebook provides two options: either removing the deceased’s account, or "memorializing" it.

Memorializing a person’s account “means the account lives on in Facebook's system, and other Facebook members can interact with the deceased member's wall. What’s interesting about what Facebook put into place, compared to Twitter, is that there’s still a great deal of emphasis put on privacy and what can be done with the information that user has posted to the service. For instance, only that user's friends can still visit the profile or find it in Facebook's public search tool. And Facebook goes so far as to remove all status updates and contact information.”

It is hard to imagine that Facebook and Twitter will remain an important part of our lives many years from now, but Facebook has grown from 300 million to 500 million users in less than a year, with few signs of that slowing down. This is an indication that “policies about a user's death can end up being just as important as those you agree to when you first sign up.”

Thank you for reading, and have a great day.
 

Rick Bickhram - Click here for more information on Rick Bickhram.

 

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Bridging the gap between principle and common sense can be tough for parties involved in litigation.  

World renowned pop artist, Michael Jackson, died over one year ago on June 25, 2009.  As with most estate disputes, they tend to be costly both emotionally and financially, and this tends to be the focus of everyone watching, despite all the good deeds that one may have accomplished during his or her lifetime.

Over the past year, we have heard of issues surrounding the Guardianship of Michael's children, his mother Katherine Jackson's fight to be appointed as the executor for Michael's estate, and illegitimate children coming out of the woodwork claiming to be dependants of Michael.

Most recently, in an entertainment column published by TVNZ, Michael's father, Joe Jackson, has decided to appeal a court decision indicating that he had no right to object to the executors of his son's will.  

Joe Jackson initially accused the executors of Michael's estate, John Branca and John McClain, of fraud and embezzlement.  As Joe Jackson was not a beneficiary of Michael's estate, the court held that he was unable to object to the executors of his son's will.

Joe Jackson's lawyers now argue that Joe was financially dependent on Michael and should therefore have a right to object to the appointment of the executors who control the financial decisions of Michael's estate.  These claims of dependency are being refuted by the lawyer for Michael's children.

As I indicated above, bridging the gap between principle and common sense can be tough for parties involved in litigation.  Is this the legacy that Michael Jackson would have wanted to leave when he died?

Thank you for reading,

Rick Bickhram - Click here for more information on Rick Bickhram.

 

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My friend owns a Chrysler dealership, and at the bottom of each of her ads, she includes a note in tiny font suggesting “Wise customers always read the fine print”. Those pondering organ donation in Ontario would be well-advised to follow this same adage. A number of significant changes have been made to the organ donation system in the Province:

• In addition to signing your Gift of Life Donor Card and informing your immediate family members of your choice to donate any/specific organs/tissue, you need to register your consent to donate. If you just carry the paper donor card, your wishes are only known to the extent that you have informed your family and friends. Once you register your consent to donate, your information is stored in a Ministry of Health and Long-Term Care database.
• To register consent, you can either: i) visit an OHIP office when you renew your health card; or ii) download a Gift Of Life Consent Form, fill it out and mail it to the address specified on the form. Online registration may be available at some point in the future.
• As of December 2008, you are no longer able to register a decision of “No” (i.e. No, I do not wish to donate organs/tissue). Only “Yes” decisions are now stored in the OHIP database. It is important to note that as of July 1, 2009, if you had previously registered a decision of “No”, this decision will “no longer be used or disclosed by the Ontario Government to Trillium Gift of Life Network”. Interesting catch-22: Should you choose to not register your consent, are you, by default, regarded as a “No”? The answer, is NO. If you do not register your consent, the TGLN will approach your family to discuss organ donation and your family may consent on your behalf if you are unable to do so.
• Your consent can be withdrawn at any time (again, by visiting an OHIP office, or in writing).

Spain, Italy and Austria all practice ‘presumed consent’ in which organs and tissue are considered property of the state unless one actively opts out. In 2007, the Health Law Section of the Ontario Bar Association, commented that an opt-out regime would be too radical a shift from the existing opt-in regime to garner public support. To wit, in a poll published late last week by Canadian Blood Services, 45% of Canadians were strongly opposed to a ‘presumed consent’ system of organ donation.

There are currently more than 4,000 Canadians waiting for organ donations, and each year, more than 200 die awaiting transplant.

Jennifer Hartman, guest blogger

 

 

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Computers have become a staple in the lives of human beings, such that it is difficult to imagine that there was a point in time when they did not exist. In an effort to remain current with technology, some funeral homes have incorporated the use of technology in how loved ones say their final farewells.

The Toronto Star  recently featured an article about a funeral home that allows distant loved ones to say goodbye by watching the funeral service being streamed over the internet. It sounds eerie, and certainly, there will always be concerns about internet security, but for Brantford trooper Larry Zuidema Rudd, who died when a roadside bomb exploded, having an online funeral service allowed more then 40 of his colleagues in Afghanistan to pay their final respects from their distant base.

The so-called “sympathy casts,” have been growing in popularity. Helen Zuidema, the mother of our fallen solider Zuidema Rudd, says that the sympathy casts have “brought our family together without them having to come here … they’re still talking about it months later.” Zuidema still scans the funeral site, along with its many photos, tributes and messages, about once a week.  “It brings back a lot of memories that you kind of forget when you are grieving,” says Zuidema.

For funeral homes, embracing the advances of technology has created an appreciation amongst loved ones, faraway friends and relatives, who can now be included in saying their final farewell.

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We often think of death in terms of the impact it will have on each of us individually. How my grandparent’s death affects my life? Who will I leave my estate to? Stephen Hawking, famed physicist has recently addressed the idea that the human race as a whole may be on the verge of extinction, unless we colonize Space. 

With the planets capable of human inhabitation limited to essentially Mars, our descendants may be actual Martians. And no…I don’t mean that we will evolve into green creatures with large eyes and three fingers instead of five. I mean that they might actually live on Mars.   This isn’t the first time that the concept of space colonization has come up. Hundred of movies and countless novels have toyed with the idea, to no real impact – even NASA has predicted that a human population will one day exist in Space.

The idea that the Earth may not support the human population indefinitely is not new, other astronomers have suggested that the Earth may indeed end up in a ‘death spiral’, ending in incineration of our planet. Rest assured, we have approximately 6 billion years until this is a real possibility. Perhaps the threat of long term survival as a race will spur us into exploration and a global form of Estate Planning.

Have a great weekend,

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

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Legacy, and all that it encompasses is often at the forefront of Estate litigation. ‘Dad didn’t want that’ or ‘Mom would have wanted me to have that’ is often at the heart of the arguments we make. It must certainly be prevalent in the minds of testators when they are considering who gets what. One of the most common concerns we see, is ensuring that your children will spend your money in a way that you would have supported. However, I blogged yesterday on the recent trend of the very wealthy to leave their monetary legacy to charity; reinforcing the idea that sometimes, it is not only money that we are worried about, but also a continuation of our ideals, and our intentions to better those around us.   ‘Beautifulpeople.com’ has taken this one step further, the concern now being focused on the physical aspects of your legacy.

BeautifulPeople.com is essentially a dating website, with a twist. You can only become a member through a democratic vote in which some 600,000 people are asked to assess your photo for attractiveness; if the vote says attractive, then welcome; if unattractive, goodbye. Recently, BeautifulPeople.com has launched a new forum on its website for the purpose of finding sperm and egg donors. Donors are of course limited to those who are ‘attractive’.   The founder of BeautifulPeople maintains that the new forum on its website is merely a mechanism by which individuals with fertility issues can find appropriate donors, however, he notes, as reported by the National Post, that “Every parent would like their child to be blessed with many fine attributes, attractiveness being one of the most sought after.”

At first glance, I was incredulous! Really? A website where only beautiful people can find sperm and egg donors? But, alas, the managing director assures that the site is for everyone ‘including ugly people’. In trying to approach this from every angle, I must consider whether it is possible that this is really just another part of your legacy? It seems that in many ways we take steps to prepare our children for all possibilities, trying to give them any edge we can to make their lives better than the ones we had. I suppose, in the midst all this consideration of ‘legacy’, maybe it’s not all money and reputation, but also appearance.

Something to think about,

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

 

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I vaguely remember the first time I saw Warren Buffett’s granddaughter interviewed regarding his intentions to leave the majority of his wealth to charity. I don’t think that I gave it the consideration it deserved. This issue has taken center stage once again with a quick request from Buffett, as well as Bill and Melinda Gates.

Probably known most for their wealth, but also for their generosity, these three trailblazers have asked some of the wealthiest individuals in the United States to pledge to donate most of their fortunes to charity. The intention is not to limit the scope of the request, but merely to start as somewhat of a grass-roots organization and to expand in due course. 

On Wednesday, August 4, 2010, nearly 40 individuals, whose wealth exceeds my imagination, pledged to give away half or more of their fortunes.   This is just the beginning. The Gates family together with Buffett intend to take this global, by meeting with wealthy individuals in China and India in the coming months.   As this pledge is making international news, it’s only a short time before we see it in Canada.

The Canadian impact of such a pledge isn’t fully explored at the moment, and I won’t begin to speculate as to how it will expand north of the border, but the current domino effect can’t be ignored. 

As a general member of society I look at this with admiration and recognize the massive benefits that will be conveyed as a direct result of these actions. Even in light of these benefits, I can’t help but look at this as an estate litigator, and hope that the pledges made are conveyed to family members and that those making the pledge take careful steps to create an estate plan, as without such detail, this could be the beginning of a whole new era in Estate Litigation.

Until Tomorrow,

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

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We would all like to believe that being buried with dignity is a guarantee, something our loved ones won’t have to stress about in such a difficult time. This guarantee is one that the City of Toronto seems to also believe in. Yet the cost of funerals for those who don’t leave enough behind to cover the costs has been falling on the local funeral business owners, who are now stepping up to ask for greater assistance.

A recent article in the Toronto Star brought attention to this issue, noting that in 2009, 1600 subsidized funerals were held in Toronto, with only a few being held for unidentified individuals, or those with no next of kin. In addition to individuals who fall into these two categories, the City will also subsidize funerals for those who have been on social assistance or provincial disability benefits.

With the average cost of a simple funeral amounting to approximately $5,500, the costs start to add up, particularly when the City subsidy is only slightly over $2,000.    The Toronto & District Funeral Directors, in reporting to councillors, says that the overall costs to the association are between $1.8 million and $3.9 million each year.   Clearly the current subsidy provided by the City is not sufficient to cover these funerals and without an increase in the subsidy, services which we may consider basic will be further stripped down.   The City has countered that increases have been made on a yearly basis since 2008 and there is only so much funding that is available. 

Cities such as Windsor have dealt with similar issues in the past, bumping their subsidy to $3,000 and limiting the services available in these situations. Perhaps such changes will be coming to Toronto, and our perspective on guarantees might need to change.

Until Tomorrow,

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

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For some, the name ‘Billy the Kid’ may conjure images of an old western film, likely because that’s how he became a household name. Yet, Billy was a real outlaw in the late 1880s who died at the hands of Pat Garrett nearly 130 years ago. 

A recent article in the Toronto Star notes that a posthumous pardon for Billy the Kid may be in the works in New Mexico. Billy was convicted of murdering a sheriff during the course of a feud between two rival factions of cattle herders, both asserting their right to control cattle lands in New Mexico in 1878.   The legend continues that Billy was held in jail following the feud, but he managed to escape. Pat Garrett chased down bill and allegedly shot and killed him.

In more recent history, some have contended that Billy (although maybe I should say, the “real Billy”) actually got away, and that Garrett killed the wrong man. Garrett’s family has taken issue with these allegations, and the attempts to pardon Billy the Kid.

The pardon has gained favour with some in reliance on the story that Billy had made a deal with law enforcement, wherein he testified against another outlaw in exchange for a pardon. It seems such pardon was never granted.

Garrett’s family, in an effort to uphold their family honour, have commenced a petition against the pardon of Billy the Kid. Some have argued that the pardon is a publicity stunt and others that it is long overdue. Whatever the truth about the deal between Billy and law enforcement, having a legacy worth fighting for is what we all strive to achieve; at least two people who died over a century ago have created such a legacy.

 

Until Tomorrow,

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

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I have previously posted on the doctrine of “mutual wills”. See my Breakfast Seminar, here, and my blog of September 24, 2008, here.

The issue of mutual wills was front and centre in the July 26, 2010 decision of Re Hand Estate, 2010 NSSC 297 (CanLII).

There, Dr. Hand and Ms. Hand prepared wills in 1999. In his will, Dr. Hand conveyed a condominium to his son Richard if Ms. Hand was to predecease him (the condo was jointly owned with Ms. Hand). In Ms. Hand’s will, she provides that the condo is to go to Richard. Because of the joint ownership, this gift would fail if Ms. Hand was to predecease Dr. Hand, as the condo would pass to Dr. Hand by right of survivorship.

Ms. Hand predeceased Dr. Hand. The condo passed to Dr. Hand. Dr. Hand then revised his will, leaving most of his property to a daughter. He also transferred the condo into a trust.

Richard cried foul, arguing that the wills were mutual wills and therefore were subject to an agreement against revocation. Accordingly, he argued that he was entitled to a half interest in the condo.

The court disagreed. The court found that the wills were not “mutual”, and further, there was no agreement against revocation.

As to the first point, the court found that the different terms of the two wills meant that they could not meet the definition of “mutual wills”, which required that the wills contain reciprocal provisions.

Further, the different terms of the will suggested that there was no such agreement, and that the “flexible norm of revocability” applied. 

This conclusion was supported by evidence from the drafting solicitor, who advised Dr. Hand and Ms. Hand that upon the death of the first of them, the condo would pass to the other as the sole owner. This, the court held, raised the issue of freedom of the sole owner to do as he wishes with his property.

Subsequent events did not assist Richard. The fact that for a number of years after Ms. Hand’s death, Dr. Hand continued to provide that the condo would pass to Richard suggested, at most, that the intention remained. It did not provide evidence of a mutual agreement against revocation.

While the court is free to find an implied agreement not to revoke a will, the court will not do so except in the clearest of cases. If parties intend to create mutual wills, with the accompanying agreement not to subsequently revoke the wills, they should do so in the clearest of express terms.

Thank you for reading.

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

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What happens if a Will gives a life interest in an estate to A, with a gift over to B, C and D, or their issue alive upon A’s death, and A decides to disclaim her interest in the estate?

This issue was considered in Clarke v. Di Bella, 2010 BCSC 505 (CanLII).

There, the testator made a Will that provided that until the death of the survivor of the testator or A, the Estate was to pay the income and capital, as the trustees may decide, to A. Upon A’s death, the residue was to be divided amongst B, C and D. If any of B, C or D was to predecease A leaving children, then that person’s share would go to their children.

A decided to renounce her gift, and have the residue pass to B, C and D immediately. That is, the gift to B, C and D would be accelerated.

The Public Guardian and Trustee opposed, taking the position that acceleration of the gift was contrary to the intentions of the testator, and that acceleration would disentitle the children of B, C and D from a possible inheritance.

The Court disagreed with the PGT’s position, and allowed the acceleration. It held that from a review of the case law, there were four clear principles that applied:

a.                  Acceleration is presumed unless there is an indication to the contrary;

b.                  In assessing whether there is an intention to the contrary, the court must look at both the instrument and the surrounding circumstances;

c.                  The instrument must be examined in its entirety, and clauses must not be examined in isolation; and

d.                  The intentions must be viewed, as nearly as possible, from what would be the views of the testatrix, applying an objective standard.

While many cases have disallowed acceleration, the court did not feel that the present circumstances prevented acceleration.

The court did, however, agree that the intention of the testatrix was that no beneficiary would receive a bequest before the age of 25, and imposed a restriction on distribution before the beneficiaries turned 25.

Thank you for reading.

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

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The Smithsonian in Washington DC is the largest museum in the world and houses the legacy of an entire country.  A little known fact is that this American national treasure is owed to a legacy of a different kind, a single charitable bequest by a man who had never even visited the United States.
 
British Scientist James Lewis Smithson, in a Will drawn three years before his death in Genoa Italy in 1829, bequeathed a life interest in his estate to his only living heir, his nephew Henry James Hungerford and thereafter to Hungerford's heirs.  In a charitable giftover, if Hungerford died without heirs, the estate was to go to the United States of America.  When Hungerford died unmarried and without children just 6 years later, Richard Rush as agent for President Andrew Jackson claimed the money, which was awarded to the United States by the English Court of Chancery.  The estate was worth half a million dollars in English Gold Sovereigns at the time, about $8M today.  
 
It remains a mystery to this day, why Smithson left his fortune to a country with which he had no social or political  ties.  If you would like to read more about Smithson click here.  If you would like to hear more about Smithson, click here.
 
The Will stated that the estate was to go to the "United States of America, to found at Washington, under the name of the Smithsonian Institution, an establishment for the increase & diffusion of knowledge among men."  And the rest, as they say, is history - literally and figuratively!  
 

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

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Who says estates law isn’t glamorous?   A French judge in Nanterre, on the outskirts of Paris, has recently rejected the second attempt by Francoise Bettencourt-Meyers to obtain guardianship over her mother, Liliane Bettencourt.  87-year-old Bettencourt is the sole heir of L'Oreal, the world's largest cosmetics and beauty company that her father founded in 1909. She is the richest woman in the world, with her current fortune estimated at 17 billion euros.

Bettencourt-Meyers failed to produce a medical certificate and “in the absence of this document, nothing more can be done”, the Paris official said.  

According to Aol News, Bettencourt-Meyers wishes to protect her mother from a celebrity photographer who befriended Bettencourt and to whom the heiress has given gifts totaling a billion dollars.  France24 reports that Bettencourt accuses her daughter of "vile doggedness" and impatience to get her hands on her fortune.      

Whether a guardianship application is motivated by the desire for power and money or genuine love and concern, a court will not interfere with an individual’s autonomy lightly. For information on when a court will order a capacity assessment, see my previous blog on this topic here.

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

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While some may find the contents of certain Wills frightening, there is one type of clause that has the name to go with the concept: the in terrorem clause.

In terrorem is Latin for in terror, fright, threat or warning.  An in terrorem clause is drafted to discourage frivolous Will challenge litigation by beneficiaries. The clause provides that if the validity of the Will is challenged by a beneficiary who receives gifts, that beneficiary’s entitlement to the gift is forfeited.

A condition of this nature imposed on a gift can be effective in avoiding litigation in situations where the testator wishes to leave unequal gifts among beneficiaries (his or her children, for example), which is likely to be perceived as unfair.

If a gift to a disappointed beneficiary is substantial, that beneficiary should be seriously dissuaded from a frivolous or spiteful challenge to the validity of a Will containing an in terrorem clause.

Such a clause should be limited to challenges to the validity of the Will and not to proceedings relating to interpretation or related matters over which the court has exclusive jurisdiction, otherwise the clause may be ineffective.

For some helpful discussion of the in terrorem doctrine see Bellinger v. Fayers 2003 BCSC 563 (CanLII). 
 

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

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The Courts in England and Wales are gradually adapting to relatively new substitute decisions legislation (somewhat analogous to, but in many ways different from Ontario's Substitute Decisions Act).

In particular, the concept of "statutory wills" provides for a mechanism (in certain circumstances) where testamentary dispositions may be directed by a special court for incapable persons. Under the Mental Capacity Act 2005, which came into force in England and Wales in 2007, the Court of Protection must decide what would be in the person’s “best interests”. And some judges have decided that this includes how they would want to be remembered by their family:  “For many people it is in their best interests that they be remembered with affection by their family and as having done ‘the right thing’ by their will.”

As recently reported on-line in the Telegraph, this somewhat controversial application of the concept of "best interests" may inadvertently give rise to opportunistic relatives benefiting from an estate in which the now incapable testator would never have wanted such person to share.

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

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Alleging a forgery is one thing.  Proving it is another.  But it may be the surrounding circumstances, rather than handwriting analysis, that ultimately satisfy the trier of fact that a fraud was committed.

Consider a recent case reported in the British media.  A widow with a daughter and son left a Will and two Codicils.  Her spinster daughter, who had moved into her mother's residence in the years before her death, was found to have forged the Codicils.  Evidence led at trial suggested that the mother was suffering from Alzheimer's disease, and was confrontational with and suspicious of her daughter.

The deceased's original will divided her home and the rest of her estate equally between her daughter and her son.  But in a Codicil, she apparently wrote: “I wish my daughter to keep the house and everything in the house, and any remaining savings to be divided between my daughter and son... I am worried for my daughter’s future as she is unmarried and growing older and I wish her to feel safe here.” [emphasis added]. The second Codicil substantially echoed the first.

The trial judge concluded that the Codicils were forged and, even if not forged, were not made at a time when the deceased had the requisite testamentary capacity.

It may not have helped that the son of the deceased was a "spacecraft propulsion engineer" described by the trial judge as "practical and businesslike", while the daughter, representing herself, "struggled financially."

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

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My daughter turned 6 years old on Thursday, and on Friday, a pediatric ophthalmologist informed us that she is legally blind in one eye, and likely has been since birth. She can see light and motion with that eye, but little else. Parental shock would be an understatement. I am sharing our story so that others don’t fall through the cracks like we did.

With a background in health care, I made two assumptions, in error, along the way:
i. Surely I would be savvy enough to recognize signs of vision impairment in my daughter; and
ii. The sight screening performed at our GP’s office would act as an early warning system for any problems with her eyesight.

I was wrong on both counts. 

At no time was there any indication that my daughter was having difficulty seeing.  In fact, she excelled at school, both in terms of her reading and her writing.  Further, as recently as a few weeks ago, she passed her sight screenings (with flying colours, no less), because she was asked to cover her own eye, and obviously cheated by peeking through the tiny gaps at the base of the fingers where they meet the palm.  Sneaky little so-and-so.

A ‘sight test at a fixed distance’ comprised of covering one eye at a time and identifying letters/shapes on an eye chart is important, but it is not a substitute for a formal, comprehensive vision examination by an eyecare professional.  Formal eye exams, once every 12 months, are not only recommended for school-aged children, but contrary to popular belief, they are covered by O.H.I.P.  The Ontario Association of Optometrists is rolling out the Eye See…Eye Learn program in Halton, Hamilton-Wentworth, Windsor-Essex, Thunder Bay and Dufferin-Peel in September 2010.  This program will educate parents of children entering JK about the importance of eye health, encourage them to take their children for comprehensive eye exams, and will even provide free eyeglasses if they are required.

My daughter wears a patch over her ‘strong’ eye for 3 hours a day in order to force her brain to establish connections with her ‘weak’ eye. We try to lighten up the process by letting her choose which patch pattern to wear; today she chose the patch with the lipsticks and high-heeled shoes on it. Some days she jokes that she looks like a pirate princess. That's my girl.  We are hopeful that we will see some improvement over the coming months, although we recognize that an earlier intervention may have been beneficial to her long term prognosis.

To find an optometrist near you, visit The Ontario Association of Optometrists website here.

Jennifer Hartman, Guest Blogger
 

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The term "probate"  recurs throughout estates practice as a noun, verb and adjective.  The most common context refers to the process of getting a court to provide some sort of official certification or recognition that a testatmentary instrument is the Last Will of a deceased.  In Ontario, the probate process results in the issuance of a Certificate of Appointment of Estate Trustee With a Will (or Without a Will).

Under the modern Rules of Civil Procedure, the procedure resulting in the issuance of a Certificate of Appointment rarely requires that a judge review the application, or even the alleged Will.  By Rule 74.14, an application need be referred to a Judge only where, in the opinion of the Registrar, the application and the accompanying materials are not complete or contain information on which the Registrar has a doubt.  This results in an efficient administrative process, but any interested party can challenge the validity of a such a probated Will, and the fact that a Will has been "probated" has no probative value when it comes to proving the Will in solemn form, as it is called.  

A judgment upholding the validity of a Will does not necessarily "probate" that Will.  Parties to the proceeding may not want a Certificate of Appointment to be issued, and so they will not request that a Certificate of Appointment be issued as part of the Judgment.  This might be the case where the Will is a "corporate" or "secondary" will, and is restricted to assets that can pass outside of probate (often to avoid estates administration tax).

Have a great weekend,

Christopher M.B. Graham - Click here for more information on Chris Graham.

 

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Estates law often has distinct legal meanings for common terms. Take the term "personal representative". The term is defined in estates statutes, but also appears with and without definition in business corporations statutes and other statutes. 

 

Adams v. Ontario (1996) provides that when the phrase "personal representative" is used in connection with a deceased and the administration of the deceased’s estate, it can have only one meaning, which is the meaning set out in the definition contained in the Estates Administration Act, the Trustee Act, and in the Succession Law Reform Act:

1(1) “personal representative” means an executor, an administrator, or an administrator
with the will annexed.

The term is therefore very broad: it includes both the executor (who may never receive probate) and the recipient of a Certificate of Appointment of Estate Trustee with a Will.

The same case acknowledges that the term “personal representative” can have other meanings when it is not applied to a deceased or the administration of a deceased’s estate, such as in Ontario's Business Corporations Act.

Thanks for reading,

Christopher M.B. Graham - Click here for more information on Chris Graham.

 

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Section 10(1) of the Estates Act provides that appeals in proceedings under the Act are to be made to the Divisional Court.  This is a procedural holdover from the old days before the Surrogate Court was merged with the Superior Court of Justice (or more perhaps more accurately, acquired by). The Surrogate Court was an inferior court, and therefore appeals had to be made to the Divisional Court. 

By section 10(2), any person beneficially interested in the estate may appeal, even if the personal representative does not.  This provision resolves potential technical complications associated with standing.  It is also required from a practical perspective since in many cases, the personal representative is also a litigant personally, and is largely and acceptably silent in his or her capacity as personal representative.

Note that this provision does not preclude appealing to the Court of Appeal, which by section 6(2) of the Courts of Justice Act has jurisdiction to hear and determine an appeal that lies to the Divisional Court, if an appeal in the same proceeding lies to and is taken to the Court of Appeal.   

Have a great day,

Christopher M.B. Graham - Click here for more information on Chris Graham.

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My blog posts this week have been inspired by a Globe and Mail article that a summer student handed to me about the late Gail Posner’s trust provisions for her dogs, Conchita, April Maria and Lucia.

In yesterday’s blog I noted that while Wills are an opportunity for individuals to provide for their loved ones, there is no guarantee that our stated wishes for our beloved companion animals will be sacrosanct. For example, the late Leona Helmsley’s $12-million trust for her dog Trouble was reduced to $2-million by a Manhattan Judge on the ground that the deceased lacked capacity with regard to her Will and the Trust Agreement.

In the Globe and Mail article that inspired my posts this week, Barry Seltzer noted that Canadian legislatures may wish to consider “ante-mortem” probate as a way to ensure capacity does not become an issue in these cases. Ante-mortem probate is a technique used in certain states, including Arkansas, North Dakota, and Ohio, to validate a will while the person is still alive so that it cannot be contested once the person passes away.

In some cases, the wishes of a testator regarding his pets are contrary to public policy and, thus, are held to be void. For example, some pet owners have included clauses in their wills directing that their pets be euthanized upon their death (perhaps because they feel that their animals will be distraught without them). 

In one such case a testator (Mr. Clive Wishart) directed that the Royal Canadian Mounted Police (“RCMP”) shoot four of his horses. The RCMP refused and the matter was brought to a New Brunswick Court where it was held that the direction to shoot “four healthy animals” was contrary to public policy because doing so would serve “no useful purpose” and “would be a waste of resources and estate assets even if carried out humanely.” 

For those of you interested in reviewing the case, the citation is: Wishart Estate (Re), [1992] N.B.J. No. 547.

Thank you for reading!

Kathryn Pilkington - Click here for more information on Kathryn Pilkington.

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Pets are becoming increasingly important to Canadians. According to a 2001 IPSOS-REID "Paws and Claws" pet ownership study, more than half of all Canadian households owned a cat or a dog in 2001, with one third of households owning cats and one-third owning dogs.

Since Wills are an opportunity for individuals to provide for their loved ones, it’s not surprising that people are choosing to make provision for their beloved animal companions. However, there is no guarantee that their wishes will be sacrosanct.

In a recent Globe and Mail article, Barry Seltzer (a Toronto estates lawyer) noted that this was certainly the case for the late Leona Helmsley who left 12 million dollars in Trust for her beloved Maltese named Trouble and left nothing to 2 of her grandchildren for “reasons that are known to them.”   As a result of a Will Challenge (and as noted in an earlier blog post), the Trust was undone by a Manhattan Judge who reduced it to  $2-million (much to the chagrin of Trouble, I am sure) and the disinherited grandchildren were awarded $2-million each. The basis: incapacity.

And because I know you are all wondering about Trouble, let me assure you that while the deceased's wishes were not carried out exactly as she had intended, recent reports indicate that Trouble is doing just fine! If you don't believe me, click here.

Yesterday I discussed the more recent headliner involving the Estate of the late heiress Gail Posner who left a mansion valued at approximately $8.3-million as well as $3-million in trust to her 3 dogs, while leaving only $1-million to her only son, Bret Carr. Well, I'm sure it will come as no surprise to you that Bret Carr has initiated litigation against the Estate. It appears that he is seeking to have his late mother’s Will revoked on the grounds that her level of devotion to her dogs is a sign of mental illness *gasp - dog lovers unite* and that household aids drugged her, convinced her that Bret was trying to kill her and induced her to change her Will and Trust Agreement.

Thank you for reading!

Kathryn Pilkington  - Click here for more information on Kathryn Pilkington.

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There has been a great deal of discussion about the late Leona Helmsley who, when she died, left 12 million dollars in Trust for her beloved Maltese Trouble, while leaving nothing to 2 of her grandchildren for “reasons that are known to them.”

Well it’s happened again…another estate is going to the dogs! Our summer student forwarded me a Globe and Mail article discussing the provisions that the late heiress Gail Posner made for the benefit of her fabulously famous Chihuahua Conchita and her 2 other dogs, April Maria and Lucia. These pampered pooches are to receive an $8.3 million mansion and a $3-million trust fund under her estate while the deceased’s only son, Bret Carr, takes a meagre $1-million in comparison.

According to the terms of a Trust Agreement (amended by the late heiress in 2008), so long as she had dogs at the time of her death, the trustees:

1.  are to retain the mansion property (located in Miami Beach) plus a sum of money not more than $3-million to cover the carrying costs of the mansion.

2.  shall pay $5-million to Elizabeth Beckford to care for Conchita, April Maria, and Lucia. I note that the deceased provided that they are to be cared for with “the same degree of care” they received while Posner was alive (which, I suppose, will mean the continuance of their weekly doggie spa appointments).

Upon the death of the dogs, the mansion is to be sold and the proceeds are to go to charity. The remainder of the estate (after certain specific bequests) goes to animal shelters, breast cancer prevention, and suicide-prevention centres.

Those are some lucky dogs (shhhhh – don’t tell my dogs, Digger and Nicky. They’re spoiled enough)

Thank you for reading!

Kathryn Pilkington - Click here for more information on Kathryn Pilkington.

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For those who take an interest in music or pop culture, it would have been difficult, if not impossible, not to be aware of Michael Jackson’s demise on June 25, 2009. 

At the time of his death, there were reports that his estate was indebted and/or had pending liabilities in the hundreds of millions of dollars. It is interesting to note that his “empire” is now said to have earned an amount approaching $1 billion since his date of death. Whether these reports are true will have I suppose to be seen. However, if they are true, these astronomical revenue figures would apparently elevate Michael Jackson’s estate to within the top five top earning dead celebrities. 

With such alleged earnings, it is not surprising that the dispute apparently continues regarding his estate and the appointment of the trustees to his estate (apparently litigation continues as between the family and those appointed as executors (administrators) of his estate). Other disputes regarding issues over copyright belonging to Michael Jackson and his estate and his assets and his death would seem not to have an end in the near future. What does appear not to be in dispute though is that his estate will continue to generate incredible revenues.

Thanks for reading,

Craig R. Vander Zee - Click here for more information on Craig Vander Zee.

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In yesterday’s blog, I mentioned that the election of the Ontario Bar Association (OBA), Trusts and Estates Section Executive for the year 2010-2011 was confirmed at the Section’s year end dinner on June 1, 2010. 

I am very pleased to be the incoming Chair of the Executive. The Vice-Chair will be Ed Esposto. The balance of the slate is as follows:

 

Past-Chair:                                          Suzana Popovic-Montag

Secretary:                                             Melanie Yach

Newletter Editors:                               Dina Stigas/John O’Sullivan

Continuing Legal Education

Liaison:                                                Joanna Ringrose/Eric Hoffstein

Regional Programming:                   Ed Upenieks/Mitchell Leitman

Members-at-Large:                           Ann Elise Alexander, Vincent De Angelis, Shael Eisen,                  Danielle Joel, Sean Lawler, Mitchell Leitman, Jane Martin, Deborah Petch, Wendela Roberts, Susannah Roth, Susan Stamm, Ameena Sultan, Sender Tator, Diane Vieira and Laura West.

 

I am looking forward to working with the Executive and having a very successful year.

 

Before turning the page on this past year, though, I would like to sincerely thank Suzana Popovic-Montag for all of her efforts, hard work and counsel as the Chair of the Executive.

 

Have a nice day.

 

Craig R. Vander Zee - Click here for more information on Craig Vander Zee.

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The Ontario Bar Association (OBA), Trusts and Estates Section, year end dinner was held on June 1, 2010 at Archeo (Distillery District) in Toronto. 

Suzana Popovic-Montag, the Chair of the Section for the past year, brought the past year to a close and the election of the OBA, Trusts and Estates Section Executive for the 2010/2011 year, was confirmed. 

The Section also paid tribute to this year’s recipient of the Award for Excellence in Trusts and Estates, Hilary Laidlaw.

The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates. The criteria for the award is demonstrated leadership in the trusts and estates bar through knowledge, experience, skill, commitment, passion and strength of character, plus all or some of the following:

·         academic excellence through teaching at the Bar Admission Course, lecturing at a law school, participating in Continuing Legal Education and/or academic writing;

·         participation in the OBA Trusts and Estates Section Executive or the Law Society of Upper Canada on wills, trusts and estate matters; and

·         contribution to the development of wills, trusts and estate law.

In addition to the Award for Excellence, Lionel Smith was awarded with the Widdifield Award and Sender Tator was presented with the Hoffstein Book Prize.

Congrats to Hilary, Lionel and Sender.

In addition, there was a tribute to The Honourable Mr. Justice Maurice Cullity, who is retiring this year.

It was a wonderful change of venue for the dinner and a very enjoyable evening.

Thanks for reading.

Craig R. Vander Zee - Click here for more information on Craig Vander Zee.

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It's Friday, June 25, 2010 and as a result of the G20 summit, I am blogging remotely - from the comfort of my own home. As you know, the leaders from the G20 countries are meeting in Toronto this year to discuss key issues in the global economy.

The road leading to the summit has been a rocky one. I believe the words "fake lake" pretty much sums it up.

And you should be aware that there are traffic restrictions in effect today. For a list of the major highways with partial and full closures today through to Sunday, click here.

Even the judiciary has been impacted! If you are practicing in the area of estates, you are well aware that there were no judges sitting yesterday and there are none sitting today. My colleagues, Natalia Angelini and Paul Trudelle, noted that this was a topic of discussion at the recent Dinner with the Honourable Estates List Judges. 

Well, it's not just the courts that are closed today. In the Globe and Mail's 'local view' blog, which is dedicated to keeping us up to date on the "disruptions" and "drama" that Toronto has experienced in the lead up to the G20 summit, Siri Agrell informs us things have become personal. What could be so personal for Torontonians? Apparently the LCBO announced that it would close 7 of their stores.

If you’ve noticed that your local LCBO store is closed today and you need to stalk up for that party you're holding tomorrow evening (perhaps to celebrate recovery and new beginnings – this year’s G20 theme), click here.

Enjoy your weekend!

Kathryn Pilkington - Click here for more information on Kathryn Pilkington.

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This is the first time I have ever contributed to a blog, legal or otherwise, so you can imagine my delight when I noticed an article in the June 11, 2010 issue of Lawyers Weekly entitled "Legal blogs that work”.

The article, written by Geoff Kirbyson, discusses the benefits of legal blogging and includes helpful hints on running effective law-blogs.

Mr. Kirbyson points out that legal-blogging has become more common amongst law firms. This assertion comes as no surprise to me. My colleague, Sharon Davis, recently discussed the growing popularity of blogging amongst members of our profession. She noted that blogging is not an alien concept for lawyers as writing has always been a large part of our professional lives. You can find her blog here.

The increased attention given to on-line media makes sense when you consider the number of individuals who rely on social media for their information. A 2009 study by CNW Group and Ledger Marketing found that 50% of those surveyed accessed social media tools once per day.

So, what makes a legal blog effective? A managing partner of a Winnipeg-based firm opined that an effective blog showcases activity at a law firm, highlights developments in particular legal areas, demonstrates a firm’s knowledge and expertise, and enables a firm to engage in client service through social media. This is certainly true.

In my opinion, however, there is one more necessary component to effective legal blogging. In addition to being accurate, relevant, and current, a legal blog should be FUN.

Happy blogging everyone! I know that we’ll talk again soon.

Kathryn Pilkington - Click here for more information on Kathryn Pilkington.
 

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There has been so much that has been recently written about the release of the iPad and more recently, the new iPhone 4G. Some may remember that an Apple Software Engineer who was working on the iPhone 4G accidentally forgot the Smartphone at a local bar, prior to its release date. Gizmodo, known as a leading technology weblog about consumer electronics, purchased the Smartphone from the finder and published exhaustive details about many of its new features, thereby stealing some of the thunder from the creators of the iPhone.

Smartphones are certainly the hottest thing going forward in social, business and technological circles, and its time for us to start thinking about the revolution it has had on our lives. 

Thanks to Smartphones, most lawyers are now mobile. I read an article in the most recent LawPRO magazine named “Essential Smartphone apps for Lawyers”. For those of us who are not familiar with technological jargon, an app is short for “application software”, which is downloaded to a Smartphone. Some essential apps described in this article were: “Documents To Go”, which, among other things, allows lawyers to view and edit Microsoft Word, Excel and PowerPoint files, and “Timr”, another app referred to in this article, allows a lawyer to track their time and mileage. 

Smartphones have certainly made life convenient, but as lawyers it is scary to think about the privacy issues associated with all of the personal and client data that we store on them. With just a push of a button or a poke at the touchscreen, pretty much anyone who got hold of your phone could read your email, see pictures of you, your family etc. Smartphone’s contain far more personal data than would ever have been accessible on older mobile phones, now coined as the “dumbphones”.

Most of our privacy concerns can be remedied, which is as simple as enabling your security passcode, thereby locking your phone so that anyone who steals it or finds it if you have misplaced it cannot gain access.
 

Thank you for reading and have GREAT weekend,
 

Rick Bickhram - Click here for more information on Rick Bickhram.
 

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I recently read an article named “The Lessons of Famously Bad Estate Planning”, authored by Steven Morelli. This article looks at disasters that have followed celebrities because of the absence of a properly planned Will.

Jimi Hendrix died without a Will which started a family war that would end up in court for more than 30 years.

Sonny Bono, an American record producer, singer, actor, and politician, died without a Will. It is mind blowing that someone so successful would not have a carefully planned Will. Of course, numerous people lined up to advance claims against his estate, which included Cher, and the inevitable love child. Sonny could have saved his widow and everyone else involved a lot of grief and aggravation if he had taken the time to do some simple estate planning.

For those of us who have taken the time to prepare our Wills, Mr. Morelli reminds us of the importance of updating our Will. For instance, Anna Nicole Smith died with a Will; however, her Will contained a provision which specifically excluded “future children” from benefiting from her estate. This clause had the effect of leaving her entire estate to her now deceased son, and disinheriting her five month old daughter. A judge eventually fixed this estate mess, but it came at an unnecessary expense.

Mr. Morelli puts it perfectly: “The essence of estate planning: control. Whether it involves celebrities maintaining their image for all posterity, or wealthy land-owners keeping their families’ holdings intact, estate planning protects clients’ control. Quite often people don’t want to discuss estate planning because it involves their death. But clients should understand that it is essential to maintaining their family’s stability and dignity.”

Thank you for reading,

Rick Bickhram - Click here for more information on Rick Bickhram.
 

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Recently, I was looking over some of the leading cases in life estates. One of the questions that stood out in my mind was whether or not a life estate has a quantifiable value.

Aho v. Kelly, was heard in British Columbia in 1998, but remains a leading Canadian case that is often referred to when the valuation of life estates are being considered.

In Aho v. Kelly the wife and two children of the deceased were each left a 1/3 interest in the matrimonial home of the deceased. The court confirmed that the wife of the Deceased also held a life interest in the same matrimonial home, as per the jurisprudence in British Columbia. The wife commenced an application seeking a court order that the property be sold and the proceeds be unequally divided amongst the three owners of the property.

The wife argued that the proceeds should be unequally divided because she was entitled to further compensation as she had to be paid out for her life interest.

The Court held that a life estate is a property interest that has “some value”. The Honourable Justice Bauman stated that at common law a life estate is alienable, and that upon its transfer to another party it becomes an “estate pur autre vie” (that other life being the original life tenant). The Court concluded that the life interest has a value capable of capitalization, and that this value should be paid out of the proceeds from the sale of the house.

Aho v. Kelly is not binding in Ontario, however it goes a very far way in establishing the framework by which the value of the life interest can be calculated.

Thank you for reading and have a great day,

Rick Bickhram - Click here for more information on Rick Bickhram.
 

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With dementia on the rise and as our society continues to age, many pharmaceutical companies are taking aim at inventing a drug that will reduce if not cure dementia all together.

One such company, Novartis Pharmaceuticals Canada Inc., sold the Exelon patch, which essentially is a transdermal patch which is used to treat mild to moderate symptoms of dementia.

The popularity of the drug has been on the increase recently with nearly 18,500 prescriptions for the patch being dispensed in Canada in 2008 and in 2009 that number increased to nearly 65,000. What I found particularly interesting about this drug was the side effects associated with it. Novartis Pharmaceuticals has reported on its website that possible side effects of the patch could include nausea, vomiting, hallucinations and problems with heart rhythm. 

The Exelon patch was reported as a drug that would reduce the effects of Alzheimer’s. However, recently Health Canada has issued a warning about Exelon as there have been reported misuses of the patch in Canada. The misuses of the patch could pose a risk of overdose, leading to nausea, hypertension, slowed heart rate or death. 

Those of us with loved ones who suffer from dementia and Alzheimer’s can only look on with hope that there will one day be a cure.

Rick Bickhram - Click here for more information on Rick Bickhram.

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Former child actor Gary Coleman died after being hospitalized earlier this week with a head injury. He was 42.

Coleman is best remembered from the sitcom Different Strokes, where he played the comical kid actor, which led him to his fame.

Unfortunately, in what appears to be a trend among popular child actors, Coleman's career all but ended with the onset of adulthood, but that did not remove Coleman from the public eye. During his adult years, Coleman was plagued with legal troubles. In 1990, Coleman sued his parents and an ex-manager for allegedly extorting him of the fortune he had earned while on Different Strokes. He was subsequently awarded $1.3 million dollars. In 2007, Coleman married his girlfriend of five months, Shannon Price. The marriage was reported as a volatile one. Both were arrested, Price in 2009, and Coleman this past January, on domestic violence charges. They even aired their grievances on Divorce Court in 2008.

Gary Coleman’s alleged Last Will and Testament, dated April 5, 1999, recently surfaced. Under his Will, Gary appoints his former manager Dion Mial as his executor of his estate. What I found interesting, was under paragraph two of his Will, which states: “I direct my personal representative to cause my personal remains to be cremated and to plan a wake for me conducted by those who have had no financial ties to me and can look each other in the eyes and say they really cared personally for Gary Coleman.”

In Ontario, as I recently indicated in a prior blog, any instructions left by the deceased respecting remains, whether in a Will or otherwise, are precatory and are not binding on the estate trustee.

Thank you for reading and have a great day.

Rick Bickhram

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In a recently reported decision by the Superior Court of Justice, the Honourable Justice Newbould considered the issue of whether a solicitor who drafts a Power of Attorney owes a duty of care to the Grantee of the Power of Attorney.

In Barbulov v. Huston, the defendant was the solicitor for the plaintiff’s father. 

The father attended at the defendant solicitor’s office to execute a Power of Attorney for personal care and for property. The plaintiff was present with his father at this meeting. Some thirteen years after the father’s Power of Attorney for personal care was signed, the father suffered from brain damage, which impaired his ability to communicate or interact with others.

The plaintiff reviewed the Power of Attorney, but then realized that it did not reflect his father’s wishes and was concerned that the Power of Attorney would be used to terminate his father’s life support.  At the Consent and Capacity Board hearing, the attending physician for the father proposed a revised plan of treatment with reduced medical intervention in accordance with the Power of Attorney. The plaintiff appealed this decision and spent $30,000.00 on the appeal. The plaintiff sued the defendant solicitor alleging that he was negligent in drafting the power of attorney as it did not properly reflect the intentions of his father. The plaintiff sought damages for the legal expenses incurred by him in unsuccessfully appealing the decision of the Consent and Capacity Board.

Justice Newbould held that the defendant solicitor did not owe a duty of care to the plaintiff son. In his decision, Justice Newbould justified his decision by stating that the defendant solicitor “did not undertake to look after the plaintiff’s interests. He was concerned solely with the interests of the plaintiff’s father. The plaintiff was acting in the meetings with the defendant as a translator or messenger on behalf of his father. He was not there in any personal capacity with a separate interest that needed protection. There would not have been any expectation that the defendant was looking out for the plaintiff’s interest, and there was no representation that he was.”

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Certainly a firm's wills bank has traditionally been seen as a capital asset that generates work in the manner of files being opened both as estate solicitor and, oftentimes, executor. A recent e-bulletin released by Title Research elaborates on this basic premise to provide some interesting thoughts on the untapped marketing potential of an existing estates and trust practice.  

The author, Alistair Moyes (a consultant with U.K.-based Marketlaw), notes that "the value of the potential clients generated by a probate matter is increasing as the competition in the legal services market accelerates.... The question is how to retain them as clients and gain their next matter."  Because "people tend to go back to the last lawyers they used or had contact with" and because "probate (& wills) is third behind residential conveyancing and divorce (& family) it should be seen as a valuable access point to the profession and one that needs to be carefully managed to retain and gain clients within a firm." 

Essentially, an estates and trusts practice should look to its existing clients as being the source of future work after the Will or Power of Attorney has been drawn.  The key, therefore is to enhance the loyalty of the client to the lawyer.  The starting point is to "maintain a current, regularly maintained database of past clients that can be used to send them information about the benefits of your services."  Thereafter, regular (even as little as every 3 or 5 years) communication with these clients to remind them to update their will if required is a simple way to remain top of mind and show an interest in maintaining an ongoing relationship.

In addition, Moyes notes that any new legal developments can provide an opportunity to remind clients of the benefits of your services. "Writing to executors with brief details of their responsibilities can identify potential new clients." And suggesting your firm as an executor, when explained carefully to the client, similarly provides the potential for new work.

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

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In a recently reported decision, the Nova Scotia Supreme Court tackled issues of will interpretation and whether a gift in a Will is void for offending public policy as enshrined by provincial Human Rights legislation.

In Re Peach Estate, the testator purported to leave his residence to "an Anglican of Presbyterian..." 

The first issue was whether the word "of" was properly to be read as "or".  The Court, applying the doctrine falsa demonstratio noted that if surplus or inessential parts of a description in a Will are inaccurate, they may be rejected "if the remaining description is sufficiently certain to give the bequests a definite meaning.   If a will describes a certain person or thing with sufficient certainty to enable a court to recognize the person or thing intended by the testator, then the court will overlook any inaccuracy in the rest of the description."  Moreover, "in endeavoring to give effect to the testator's true intention the court may be able to utilize the doctrine by simply ignoring a mistake in the description of a person or property."

The court therefore concluded that "there is no evidence of an "Anglican of Presbyterian", and therefore the use of the conjunctive "of" was in error...the provision should read "Anglican or Presbyterian".

However, the correction was moot.  The restriction of prospective purchasers to only those of certain Christian denominations was found to offend the provisions of the Nova Scotia Human Rights Act.

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

 

 

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It is a simple fact that the vast majority of litigation settles before trial.  Yet as litigation practitioners, we learn early on (notwithstanding these statistics) to approach each new case as though it is likely to go to trial.  We therefore build a case always mindful that the threat of a successful result at trial may be what is required to procure the most advantageous settlement for the client.

But some cases are simply destined to go to trial.  And when they do, the right mindset is required to win.  I once received the following advice: "You will perform best if you do two things. First, do not ever entertain the possibility that you will lose. This does not mean that you adopt an irrational approach or ignore the way things are unfolding.  Rather, when you are an Olympian going for Gold, you must never allow your mind to entertain or dwell on the possibility of earning anything less. That’s not the way it's done. Secondly, do not worry now about the aftermath of a loss should it occur. If you do you will be paying interest on a debt before it is due."

Many books have been written on what can generally be called "the power of positive thinking."  While such an approach alone will not win a difficult case, better to have given it your best shot then to have focused on the risk of losing.

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

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A friend recently gave me a wonderful gift – “The Book of Awesome”. Upon first glance, with its colourful cover and unusual font, I wasn’t sure what to expect. After only several short “Awesomes” I realised that this book is a gift that I will never forget. 

In litigation, we are constantly engaged in combat, fighting on behalf of our clients. In estate litigation, we often deal with sad stories, unfortunate events and emotionally charged situations. In these circumstances it is easy to slip into a routine where the negative is the focus of the day; the pressing deadlines, the argumentative nature of our work, and the constant roller coaster of emotions. 

“The Book of Awesome” serves as a reminder that if we shift our focus to view small events, we may be surprised by how positive life can be.    Awesomes can be anything from getting a ‘pull-through parking spot’ to ‘drinking those little ice crystals floating in your freezing cold glass of coke’. I’ve been sharing the Awesomeness with friends for the last few weeks, and the response has been a true Awesome.   I’ve been receiving emails letting me know about an Awesome that happened that day or about the favourite Awesome from the book. I even have a friend, a teacher, who has asked her grade 8 students to each come up with their favourite Awesome and plans to decorate the classroom with the results. The students have shown great enthusiasm and apparently are having trouble narrowing their homework down to only one Awesome! 

If you haven’t jumped on the Awesome band-wagon, give it a shot. I hope that you are able to find an Awesome today, but if not, check out 1000awesomethings.com where the awesomeness started and search for a favourite.   With so many Awesomes to choose from, it will be harder than you think!

Have a awesome weekend,

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

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Whether you’re a fan or not, it’s hard to not have heard that LOST, the acclaimed television show about survivors of a plane crash, has recently celebrated its final episode.   In the last few weeks, it seems like every channel was telling me about this event. I haven’t been a devoted viewer of LOST for the last several seasons, but the commercials advertising the series finale left me thinking about the show from another angle. If I put aside the fact that it’s a fictional television show, the question arises – in real life, what would have happened to the survivors of flight 815. 

The story of LOST was centered around the people who were on the plane. However, if LOST was reality, the story of the other survivors, the family of the survivors, worried about their loved ones, would demand more focus. The family left behind struggles with the loss, and is often left with an ‘estate’ which they cannot deal with. In such a situation, without contact for years, there is a recourse which families may utilize in order to deal with the life their loved one has left behind. 

The Declaration of Death Act, 2002 provides for the very circumstance described above. It allows for a declaration that a missing person is deemed legally dead, and thus, the assets, and life left behind can begin to move on.    Generally this requires a 7 year absence, but disappearance in circumstances of peril may shorten that time frame.    It may not be the solution for every family, but with the option available, it may be worth consideration. 

Until tomorrow,

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

 

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Imagine for a moment that you go back to read your diary entries from your “Are you there God? Its me, Margaret” days.   You think to yourself, ‘these are pretty good, maybe I should put them together and write my life story’. So you sit down, get to editing and write your autobiography. For most people, a venture through their personal history leads to some reminiscing with friends or a good laugh, but not much more; For Mark Twain, it has led to a century old legacy.  

I don’t think my life story would be widely read, and thus have no current plans to write it. What’s more, even if I did write it, I don’t think I would instruct my executors to leave it unpublished for 100 years - but that is exactly what Mark Twain did. The most amazing part is that not only were those his instructions, but that his story is still relevant today, and is about to be published.

The author who changed the face of American literature with novels like ‘Tom Sawyer’ and ‘The Adventures of Huckleberry Finn’, passed away in 1910, and since 1962, The University of California at Berkeley has held Twain’s autobiography, beginning a count down to 2010. Although parts of his autobiographical work have been published in other biographies, the anniversary of Twain’s death will be celebrated, beginning on November of this year, with the publication of the first of three installments of his autobiography. 

As part of his autobiography, Twain apparently was critical of Christian missionaries in Africa; but he didn’t limit his critique to the foreign, he also allegedly wrote negatively about Theodore Roosevelt and many others.   If nothing else, the autobiography promises to be interesting with hopefully a touch of the humour that made Twain’s fiction famous in the first place. I can only dream that 100 years from now someone will be reading this blog and saying the same thing.

Until tomorrow,

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

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Moving towards being more technologically inclined appears to be a theme that isn’t only of interest to me. I can’t imagine a world where a computer wasn’t available to make last minute changes to a factum or where everay letter I sent required several days of ‘snail mail’ to arrive. That said, the touch screens of the Starship Enterprise were science fiction only several decades ago, and now the IPhone has made such technology common. The world is changing rapidly at a pace almost impossible to keep up with, and any advice to stay up to date, and which benefits my practice, is appreciated.

I was recently flipping through both “Briefly Speaking” and the “National” and each featured a different article on how to advance your practice with the use of gadgets.   The National had recently discussed the use of Smartphones, but took the opportunity this month to deal with Blackberries and the new applications available help make your legal practice run smoothly. Blacktrack was the app that I found most useful, as it aims to help you docket the time spent on client emails by recording the amount of time, and the name of the recipients and subject line in a handy chart format which can be easily used to docket time spent while on the go. Although I can best see the usefulness of this application, all 10 for legal practitioners certainly have their niche uses.

Briefly Speaking took a slightly more broad approach to the use of technology in legal practice and discussed the TECHSHOW hosted by the American Bar Association every year in Chicago.   The show hosted many visitors from all areas of the legal profession with a focus this year on social network marketing and smart phones. The show hosts sessions where the presenters are not vendors, but legal professionals who are particularly interested in technological solutions for everyday practice, which makes the information accessible and surely not too biased. April 2011 celebrates the 25^th consecutive ABA TECHSHOW and although only a year away, I’m sure there will be many new and useful technological advancements to hear about. 

Until Tomorrow,

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

 

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Estates lawyers are particularly good at advising others as to the importance of an air-tight succession plan. But when it comes to our own succession planning, there are special considerations that lawyers, or any professional, should take into account.

Sole practitioners make up 23% of Ontario lawyers.   When you add the number of solos to those working in small firms, you get a whopping 97% of firms in Ontario with 1-10 lawyers.  In such situations, there may not be anyone ready, willing and able to step in for a lawyer who suddenly can not carry on his or her practice.  

Lawyers have ethical and professional obligations to their clients. This includes a duty to safeguard clients’ interests in the event of the lawyer’s untimely death, disability, impairment or incapacity. Not only could a client face significant prejudice or damages, but without proper planning, the obligations may fall to the lawyer’s family, causing additional stress no one would wish on loved ones.  

Here are some practical tips:

1. Make arrangements for an assisting lawyer to continue, close or transfer your practice on your behalf;
2. Store all critical information in a location that is easily accessed;
3. Have the appropriate Powers of Attorney in place that are required to allow the assisting lawyer to step in and run your practice (limited, bank, etc.); and
4. Include in your Will an executor who is a lawyer.

Click here for some guidelines for the lawyer stepping in to take over the practice from the Law Society of Upper Canada's Website.  Also from LSUC is the Succession Planning Tool Kit. See here and here for succession planning resources from the Law Society of British Columbia's website.   

For some variety, you might also want to pick up the materials from the 5^th Annual Solo and Small Firm Conference held May 14, 2010 in Toronto, where you can find tips on succession planning as well as other useful information to assist your practice. 

 Sharon Davis - Click here to learn more about Sharon Davis.

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A conversation about driving with dementia exploded in the press in recent weeks. Everyone is weighing in on this debate, with potential stakes running obviously high. Certainly the decision to take away a patient’s licence could never be undertaken lightly, so how can a physician accurately determine driving risks associated with dementia?

A patient’s score on the Mini-Mental Status Examination (MMSE) score, when considered on its own, is a surprisingly poor predictor of a driver’s ability to drive safely. In fact, studies have shown that as many as 76% of patients with mild dementia are still able to pass an on-road driving test. Last month, in a strong effort to refine the entire process of assessing driving risk associated with dementia, the American Academy of Neurology issued updated guidelines for physicians. These updated practice parameters take into account the following characteristics that have proven useful for identifying patients at increased risk for unsafe driving:

• Clinical Dementia Rating Scale (CDR);
• A caregiver’s rating of a patient’s driving ability as ‘marginal’ or ‘unsafe’;
• The patient’s driving history, including accidents and citations;
• Self-reported ‘situational avoidance’ [Studies have shown that self-restricted driving, perhaps by avoidance of highway driving or night driving, or driving in inclement weather, or simply reduced overall mileage, is an accurate indicator of a driver at increased risk];
• An MMSE score of 24 or less; and
• Aggressive or impulsive personality characteristics.

This multi-faceted risk assessment brings the Americans more in line with the current Canadian approach, as outlined in the Canadian Medical Association’s document: Determining Medical Fitness to Operate Motor Vehicles CMA Driver’s Guide which takes this stance: "The driving ability of people with mild dementia should be tested on an individual basis. Studies have shown that a significant percentage of those in the early stages of dementia are able to operate a motor vehicle safely."

Jennifer Hartman, guest blogger

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It is commonly understood that Canadian political parties are subject to rigorous rules respecting contributions. Failure to appreciate these rules presents a potential pitfall for the estates practitioner. 

Under s.405(1) of the Canada Elections Act, "No individual shall make contributions that exceed: (a) $1,000 in total in any calendar year to a particular registered party [and] (b) registered associations, nomination contestants and candidates of a particular registered party; (c) $1,000 in total to a candidate for a particular election who is not the candidate of a registered party; and (d) $1,000 in total to the leadership contestants in a particular leadership contest."

Subsection 405(2) states that subsection (1) "does not apply to contributions that are made by way of an unconditional, non-discretionary testamentary disposition (emphasis added)."

Accordingly, if a client wishes to leave a gift (i.e. a contribution) to a political party in his or her Will, the parameters of the Act need to be considered by the will drafter to see that the contribution is accepted.  A specific legacy would seem the best bet.  Moreover, the Act appears to provide no latitude to allow acceptance of testamentary contributions made in settlement of litigation or potential litigation.  If a contribution to a political party is a term of settlement of an estate dispute where all concerned agree that such accorded with the intentions of the deceased (yet were never formalized), such contribution may not be accepted. 

David M. Smith - Click here to learn more about David Smith.

 

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Are joint GICs to be considered differently from other jointly held accounts when considering whether the proceeds of such accounts are subject to a presumption of resulting trust for the estate of the deceased account holder?  Please read on.

In Pecore v. Pecore, the Supreme Court of Canada considered that, because it is common for elderly parents to hold accounts jointly with adult children for banking purposes, the starting presumption should be in favour of including the funds in the parent's estate. The adult child will then have the onus of proving that the parent intended to gift the funds to him or her.  The Court also addresses the evidence that may be used to defeat the presumption and prove that the parent intended to gift the funds in the account, including the following considerations: (i) whether the account documents show the parent's intent, (ii) who controlled and used the funds prior to the parent's death, (iii) whether the deceased parent had a power of attorney, and (iv) who paid the taxes on the account prior to the parent's death.  These considerations are fact-sensitive and that the trial judge is to consider the totality of the evidence and the weight to be placed on any particular factor. 

In Videchak v. Giarratano, a 2009 decision of Justice Matheson of the Ontario Superior Court, his Honour, applying Pecore, found that a joint bank account used to pay debts was impressed with a resulting trust for the benefit of the deceased parent.  In contrast, His Honour differentiated a jointly held GIC which was noted to be a savings vehicles and not for the payment of debts.  In the absence of a characteristic associated with such daily banking, the Court was of the view that the identification of the GIC as joint with right of survivorship was sufficiently determinative of the deceased's intention respecting that asset. As such, it passed to the joint account holders.

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

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In the most recent issue of our firm's newsletter, The Probater (shortly to appear on our website), Suzana Popovic-Montag deals in depth with the issue of Proprietary Estoppel.  As Suzana explains, this equitable remedy provides a useful alternative basis for the estates litigator to advance a claim against an estate but only in the presence of the right set of circumstances.  In short, a promise made with the intention to induce and on which a promisee relies to his or her detriment may be actionable in equity.

In the estates context, a promise of marriage or a promise to make a Will, which promise is never acted upon to the detriment of the claimant, may give rise to a claim predicated upon Proprietary Estoppel. 

The recent Ontario Court of Appeal decision of Schwark v. Cutting (to which Suzana refers), although not an estates case, provides a useful overview of the remedy and, more specifically, assists in advising when the remedy is not available.  In short, the claimants/Respondents in this case sought to invoke the remedy when the owners of neighbouring lakefront property no longer permitted the claimants to have access through their property to Lake Erie.  Although the claimants were successful at trial, the Court of Appeal unanimously granted the appeal by the water lot owners on the basis that: (i) the claimants knew they had no legal right to use the water lots, (ii) there was no evidence of "holding out or inducement...which could be said to have caused the Respondents to believe they had some right or benefit over the water lots" and (iii) "there is nothing unconscionable about a property owner, who, having permitted his neighbour to use his property for a time, withdraws that permission"

Again, please check our website soon and read Suzana's Probater article for a more detailed discussion of this issue.

David M. Smith - Click here to learn more about David Smith.

 

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One of my first blogs (now colloquially referred to as the ‘thumb blog of 2008’) delved into the subject of cyberchondria, which was defined in the Globe and Mail as 'hypochondria on metaphorical steroids, its effects amplified by the staggering number of disastrous outcomes the Web can provide’. Well if ever there was a black hole from which the cyberchondriac could never hope to escape, it would be found in the Apps catalogue on your iPhone and would go by the collective name “Medical Apps”.

I’m no dummy. I can see the value in Heartwise Blood Pressure Tracker; you type in your blood pressure and heart rate and can then monitor trends over time. Handy app if I have a blood pressure problem. I get that.

Speaking of blood pressure, though, I’ll venture a guess that the Infections App would really do a number on a hypochondriac; everything you could ever want to know about anthrax, dengue fever, monkeypox and more, all at your fingertips.

And the temptation to self-diagnose must be irresistible if you’ve downloaded X-Rays, a nifty little App (free, no less), for identifying any sort of abnormality as a result of disease, injury, or simply poor genetic misfortune.

What I do find most unnerving are the Apps that are obviously targeting physicians. Instant ECG: An Electrocardiogram Rhythms Interpretation Guide is one example. Not sure how confidence-inspired I would be to watch my cardiologist whip out his iPhone to make sure I wasn’t in atrial fibrillation. Ditto for “ICU Pearls”, which the developer describes as ‘pearls of wisdom’ for the ICU doctor. Call me ungrateful, but if I’m in the ICU, I’m probably not there for a life lesson.

I scored an iTouch for Mother’s Day this year. I’m already getting wicked finger cramps exploring the full scope of what it can do. But don’t worry about me, there’s an App for that.
 

Jennifer Hartman, guest blogger

 

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In the course of reviewing medical records in advance of estate litigation, one will encounter a wide variety of cognitive screening tools used to identify cognitive impairment. A handful of these tools are described here:

• Confusion Assessment Method (CAM): an ICU assessment tool used to detect the presence or absence of delirium. A CAM assessment is usually carried out once every 8-12 hours (once per nursing shift). Results are presented as either ‘CAM-positive’, or ‘CAM-negative’, indicating the presence or absence of delirium, respectively.
• Mini-Mental Status Examination (MMSE): a quantitative measure of cognitive status in adults. Despite its well-documented limitations, the MMSE is the most widely used standardized cognitive screening test in both clinical practice and research. Scores (out of a maximum 30 points) are paired with an associated level of impairment, i.e. no impairment, mild impairment, moderate impairment or severe impairment.
• The Montreal Cognitive Assessment (MoCA): a rapid cognitive screening instrument used to detect mild cognitive impairment. This user-friendly tool assesses attention and concentration, executive functions (these are the high-level abilities that control more basic abilities and behaviours), memory, language, conceptual thinking, visuoconstructional skills, calculation and orientation. Studies have shown the MoCA to be far more sensitive than the Mini-Mental Status Examination (MMSE) in its ability to detect mild cognitive impairment.

There are dozens of other cognitive screens in use including the Mini-Cog, the Rowland Universal Dementia Assessment Scale (RUDAS), the Clinical Dementia Rating (CDR), the Memory Impairment Screen (MIS), and the recently published Self-Administered Gerocognitive Examination (SAGE). In the context of a dispute regarding testamentary capacity, cognitive screening results are valuable for the estate practitioner, in that they provide tangible, measurable, time-sensitive information regarding the testator's cognitive functioning, and serve as a tool for assessing the progression of the impairment.

Jennifer Hartman, guest blogger
 

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The past two years saw Wall Street virtually melt down.  The global economy coughed and sputtered, trade was disrupted, general panic ensued.  Now it appears that a group of significant countries may default on their respective debts, starting with Greece, then Spain, Italy, Ireland, Portugal.  The risk appears to be that the financial structures of these countries will collapse like dominos: first their creditworthiness ratings get downgraded, one country after the other, raising the cost of borrowing to finance debt payments to the point where they default, and one country's collapse will trigger a similar process in the next. 

This could be spreading though the global financial system like "ebola", causing a deeper crisis.  Britain may be hit.  Asia is already seeing market fluctuations.  Not to be overly dramatic, but the National Post headline "Greek debt crisis sweeps all before it" pretty much describes the news chatter.  Canada has already been affected. 

This may have professional relevance for the estates and trusts bar.  Events like this often seem to involve rapid exchange rate fluctuations.  It may be a good time to ensure that trustee clients, particularly those holding assets denominated in foreign currency, have been advised or reminded of their obligations to invest trust property in accordance with section 27 of the Trustee Act (the Prudent Investor Rule), and that exchange rate fluctuations could be seen by a court as being relevant to their management decisions.  A court might require a trustee to indemnify the beneficiaries to the extent of a loss due to exchange rate fluctuations, if the court finds the standard of care defined in section 27 has not been met.

Of course, mere lawyers can neither advise (or even calculate) the prudent level of exposure, nor can we predict fluctuations.  Anyone who can predict the exchange rate fluctuations would not need to practice law.   But we can point out the Prudent Investor Rule and draw attention to the potential risks that exchange rate fluctuations pose, so clients can decide for themselves.

Regards,

Christopher  M.B Graham - Click here to learn more about Chris Graham.

 

 

 

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Billionaire and recently deceased American shopping mall developer Melvin Simon's heirs are fighting over his last will.  Mr. Simon's children from his first marriage are challenging a will that changed the distribution of his estate in favour of his second wife.  Aside from the glamour factor, the case is interesting in that an allegation of fraud was recently dismissed on the grounds that "[t]he complaints fail to allege affirmative misrepresentations that can support a claim of actual fraud".

This illustrates an important point in estate and trust litigation.  Ontario's Rules of Civil Procedure similarly requires pleadings that contain allegations of fraud or breach of trust to contain full particulars:

"Rule 25.06(8)  Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred."

This could theoretically present beneficiaries challenging the actions of a trustee, since the trustee frequently has the particulars and the beneficiaries do not.  In practice, this problem rarely arises because most litigation occurs in the context of a passing of accounts, where it is unnecessary to make allegations against the estate trustee.  Instead, under the procedure in Rule 74, the beneficiaries can simply file and serve a Notice of Objection to Accounts challenging transactions or omissions in the trustee's accounts.

After filing their Notice of Objection to Accounts, the beneficiaries can then bring a motion for an order giving directions (or an order for assistance) that will provide for the disclosure of the particulars they think exist.  After receiving full disclosure, the beneficiaries should in a position to make a better-informed decision on whether to add such allegations to their pleadings. 

Where this process is anticipated, the order should specifically authorize the parties to return to court for further directions.  Of course, it would rarely even be necessary to allege fraud at all, since the facts that support the allegation of fraud can form the basis of an objection to the accounts without using the words "fraud" or "breach of trust", and this can achieve the same practical result without the risks associated with alleging fraud.  Beneficiaries can also avoid the risk of having their pleadings struck at an early stage.  

Have a great day,

Christopher M.B. Graham - Click here to learn more about Chris Graham.

 

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Trustees often run into difficulties when they pay themselves compensation prior to passing their accounts.  They are said to have "pre-taken" compensation, meaning having paid themselves compensation prior to passing their accounts.  Fortunately for guardians of property (and attorneys), section 40 of Ontario's Substitute Decisions Act allows guardians to pay themselves compensation at intervals during the guardianship before passing their accounts:

40.  (1)  A guardian of property or attorney under a continuing power of attorney may take annual compensation from the property in accordance with the prescribed fee scale.

(2)  The compensation may be taken monthly, quarterly or annually.

Amounts taken monthly or quarterly could be divisions of a calculated "annual" amount, but this provision contains no element requiring equal divisions.  Regardless of how the property guardian takes compensation, any payment is subject to court approval.  Clients applying for guardianship should always be advised specifically of this point: if the court later disagrees with the compensation taken, the guardian may have to repay such amounts.  This holds true even where the Management Plan pursuant to which the guardian is managing the incapable person's property authorizes the compensation the guardian has taken.

This raises another important consideration for lawyers in the application for guardianship stage.  Any compensation taken, or claimed later on a passing of accounts, should not be inconsistent with the provisions of the Management Plan.  Because the right to compensation is statutory, as are the prescribed percentages (though subject to discretionary reduction by the court), there is no need to declare an intention to take compensation in the Management Plan.  But if the Management Plan contains a provision disclaiming compensation, for instance, no compensation should be taken during the guardianship.

Have a great day,

Christopher M.B. Graham - Click here for more information on Chris Graham.

 

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Spring is a time for conferences and events.  Here are a few upcoming Estates and Trusts programs you might be interested in.

The Ontario Bar Association is having its annual Dinner with the Honourable Estates List Judges on Tuesday, April 27th at 6:00 p.m. at the OBA Conference Centre in Toronto. It is a great opportunity for estates practitioners to mingle with their own as well as with the Honourable Justices Brown, Conway and Strathy. It has been over a year since the Toronto Estates List Practice Direction so come on out and give some feedback! Last year's dinner was fun and informative so I expect more of the same this year.

Click here for details and registration.   
 
The OBA is also holding an event on Thursday, May 20th from 1:00 to 4:30 p.m. entitled "Solicitors as Attorneys, Trustees and Estate Trustees - What You Need to Know". If you are a lawyer who has taken on any of these roles, or intend to, this program is for you. "Learn how to get paid, how to avoid being sued, and how to manage disputes with family members or co-trustee". That pretty much says it all.

Click here for details and registration.

Osgoode's 7th Annual Intensive Wills & Estates Workshop, with Hull & Hull LLP's own Jordan Atin as Workshop Leader, takes place over three Thursday evenings, June 10, 17 & 24, and runs from 6:00 - 9:00 p.m. at the Osgoode Professional Development Centre, Toronto. Jordan has certainly enlightened me on many occasions so I'm sure he can do the same for you.  For a preview, check out this link to see Jordan on Canada AM.

Click here for details and registration.

That should be enough ongoing learning to keep you busy until summer vacation…enjoy!
 

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

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In Quebec, while formal and holograph wills are recognized, there is also a third kind of will called a notarial will, which involves more formalities than the other two. 

A notarial will is a will drawn by a notary, who ensures the formalities in articles 716 and 717 of the Civil Code of Quebec are observed. It is generally made before the notary in the presence of one witness, though in special circumstances two witnesses are required; for example, if the testator is blind or cannot sign for him or herself. The will must indicate the date and place it was made.  Once the will has been read by the notary in the presence of the testator and the witness, all sign the will in each other’s presence.

The original will is kept by the notary, and the Chambre des notaries maintains a register of all notarial wills. In Quebec, notarial wills do not require probate and are more difficult to contest in court.

Under section 15 of the Estates Act, R.S.O. 1990 c. E.21. A notarial will made in Quebec may be admitted to probate in Ontario without production of the original will upon filing a notarial copy with the other proper proofs to lead grant.

To Apply for a Certificate of Appointment of Estate Trustee with a Will for a notarial will, you must file an Affidavit of Execution by the notary, which is not a requirement in Quebec.  If the notary cannot be found, the Estate Trustee should file an affidavit explaining why together with an affidavit from any other person present when the will was executed, even though that person did not sign the will as a witness.

If neither the notary nor any witnesses can be found, the Estate Trustee must file an affidavit indicating attempts to locate them together with an affidavit by a person (not a beneficiary) who can attest to the signature of the deceased. 

If no witnesses can be located, the Estate Trustee can file an affidavit and draft order in support of a motion to dispense with the affidavit of execution.

If you would like more information on wills in Quebec, see this Government of Quebec website.

Thanks for reading!

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

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Estate planners now have yet another issue to address: how to deal with a testator's digital assets. 

The term "digital assets" (wikipedia entry) generally refers to email, social media, and other online accounts, protected by a password and right to use a specific account.  People are now commonly storing huge amounts of unique data such as photographs, emails and any form of document.  The Michigan case where a court ordered Yahoo to allow executors to access a deceased's email account notwithstanding that Yahoo's terms of use and privacy policy did not allow for a transfer of access, is already five years old.

This may already be a professional liability issue.  The information stored in relation to the "digital assets" is arguably no less important than their predecessor "physical assets".  I say "predecessor" because for many people, physical forms of these assets are already quaint.  Other digital assets could have objective financial value; for instance, a PayPal account with a substantial balance, as Michael Panchieri points out.

Without addressing the swamp of legal issues associated with digital assets (even scratching the surface in a meaningful way would require many blogs), I recommend you peruse the following list of sources from Ontario and other jurisdictions to get a sense of how digital assets might fit into an estates plan:

-> mybangalore article expanding on how digital assets fit into estates

-> Dennis Kennedy's article in the American Bar Association's online e-zine Law Practice Today (attribution) 

-> Florida lawyer David Goldman has a must-read blog on what may be a fundamental planning challenge inherent to the nature of the digital asset (hint: it is a license that expires on death...)  

-> a general FT.com (UK) article on companies that offer services to store and pass on passwords and login credentials, link to this example of one such service provider, Entruset.

Thanks for reading,

Christopher M.B. Graham - Click here for more information on Chris Graham.

 

 

 

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Section 35 of the Estates Act establishes a general requirement that estate trustees (though not executors) post security bonds.  Rule 74.11(1) of the Rules of Civil Procedure contains a mechanism defining the amount and form of the bond.  Of course, many if not most applications for a certificate of appointment of estate trustee with a will include a request for an order dispensing with the requirement to post a bond.  Rule 74.11(1). 

Authority for a court to make an order dispensing with the requirement to post a bond is found in section 36 of the Estates Act:

Trust companies need not post security bonds pursuant to section 175(4) of Ontario's Loan and Trust Corporations Act:

"(4)  Despite any rule, practice or statutory provision, it is not necessary for a trust corporation approved under subsection (2) to give any security for the due performance of its duty as executor, administrator, trustee, receiver, liquidator, assignee, guardian or committee unless so ordered by a court."

Of course, section 40 of the Estates Act allows an interested party to bring a motion to impose the requirement to post a bond or increase the amount of an existing bond (the corresponding Rule is 74.11(2)).

Enjoy your day,

Christopher M.B. Graham - Click here for more information on Chris Graham.
 

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Rules 74.16 to 74.18 provide the framework for a passing of accounts application.  Rule 74.18(12) is a useful limitation clause that provides counsel with legal authority to attempt to bar new issues from being raised at the hearing:

"(12)  No objection shall be raised at the hearing that was not raised in a notice of objection to accounts, unless the court orders otherwise. "

This provision can be particularly useful in hearings where there are defined objections but the parties are simply going through the accounts, line by line.  It is an especially handy tool to assist the court as legal authority to stop the frivolous allegations or tangents that can side-track hearings. 

Of course, Rule 74.18(2) is subject to the discretion of the court, so the provision's usefulness is limited.  Every hearing is unique, but it is unlikely that a judge would apply this provision to a fresh objection that appeared to have merit, since ultimately it is the court that must be satisfied the accounts are valid. 

 Have a great day,

Christopher M.B. Graham – Click here to learn more about Chris Graham.

 

 

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As an avid sports fan, I enjoy watching the physical nature of most sports. Recently, our media has reported on the severity of head injuries, which are caused by “head shots”, and the need to implement rules in professional sports to prevent catastrophic head injuries from happening.

Alan Schwarz, an author for the New York Times, recently wrote an article about a loophole in the California workers compensation system that allows retired professional athletes to file a claim for injuries sustained decades before, particularly retired N.F.L. players.  

Schwarz states, “Most states require workers’ compensation claims to be filed within one to five years of the injury; California’s statute of limitations does not begin until the employer formally advises the injured worker of his or her right to workers’ compensation.” Also, California’s workers compensation statutes “require a professional athlete to have played only one game of his or her career within state borders to file a full claim for cumulative injuries.” The logical policy reason behind this legislation is to protect outside workers who temporarily pass through the state, like truckers or flight attendants.

As you can imagine, this loophole has opened the flood gates for retired athletes to file their workers compensation claim. In fact Schwarz states that “about 700 former N.F.L. players are pursuing cases in California, according to state records, with most of them in line to receive routine lump-sum settlements of about $100,000 to $200,000.”

What makes Schwarz’s article interesting is the claim filed by Ralph Wenzel. Wenzel has filed a claim arguing that his dementia at 67 years of age is related to his career as an N.F.L. lineman between the years of 1966 to 1973. The theory of Wenzel’s case is that “hitting your head over and over on the football field causes certain conditions.” In fact, researchers at “at the University of North Carolina have recently linked pro football careers and concussions with heightened rates of depression, mental decline and Alzheimer’s disease.” 

As we continue to see a rise in those who are diagnosed with dementia and Alzheimer’s, I think it will be interesting to see how the sporting industry reacts to this disease, particularly, the rules each professional league implements to eliminate “head shots.”

Thank you for reading.

Rick Bickhram-Click here for more information on Rick Bickhram

 

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We repeatedly here about the grim details behind Alzheimer’s disease. In a previous blog titled “The Grim Toll of Alzheimer's”, I touched on a reported study called The Rising Tide: The Impact of Dementia in Canadian Society.   This study has cited that as our population continues to age, the number of people suffering from Alzheimer’s disease is expected to double to 1.25 million within 30 years. Again, another grim statistic.

Today, I blog on another Alzheimer’s study, which fortunately does not have such grim details. In a recent article, Lesley Ciarula Taylor states that specialists in Rochester, Minnesota have discovered “a cheap and easy memory test can predict who will develop Alzheimer’s disease with almost perfect accuracy.” The Free and Cued Selective Reminding Test is used to distinguish normal aging memory loss from a degenerative brain disease. 

Taylor states, “the cost is very low, much lower than an MRI. The hope is to be able to identify the disease as quickly as possible.”

There is no cure for Alzheimer’s. Diagnosing the likelihood of being vulnerable may not necessarily lead to a cure, but at least specialists in this area can now ask new questions that potentially could lead to different angles on handling this disease.

Thank you for reading,

Rick Bickhram-Click here for more information on Rick Bickhram

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The next Medical/Health series of blogs is scheduled to hit the platform on Monday May 3rd, 2010.  The series will run every Monday thereafter in the month of May (with the exception of Victoria Day), for a total of four blogs.

To keep things fresh, relevant and engaging, we are inviting suggestions for topics from you.  Is there a specific medical condition you'd like to see an overview for?  We have blogged on strokes, brain injury, alcohol abuse, pharmaceutical abuse, dementia, the Ontario Mental Health Act, and palliative care, just to name a few.  Perhaps you would like to see one of these capacity-related topics explored in more detail?

Please forward your suggestions to jhartman@hullandhull.com .

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Achieving a settlement is a major success in any estates dispute, but even the most comprehensive agreement cannot address every possible post-settlement wrinkle.  The recent case of Viau v. Kozicki et al, 2010 ONSC 1682 is an example of how a court will interpret Minutes of Settlement following court approval (required in this case because there were minors).   

The main issue in Viau was whether legal fees associated with administration of the estate after a judgment approving the settlement had been granted.  The judgment incorporating the settlement stated as follows:

"THIS COURT ORDERS AND ADJUDGES that [the estate trustee], be at liberty to pay all of the debts of the [Estate], which include:

(xiv)  Any legitimate debts of the [Estate], upon notification to [named Respondent], or approval of the court."

The court found that the wording of the order was not restrictive and did not establish caps on legal fees.  Further solicitor's work to complete the estate would have been anticipated.  Of course, the legitimacy of the work or amount claimed would be subject to approval by the named Respondent or the court.  In coming to this conclusion, the court did not look beyond the terms of the judgment.  The judgment was clear and unambiguous and there was no need to review pre-settlement correspondence.

The decision illustrates a second principle: litigants should avoid unnecessary (or less efficient) proceedings.  Specifically, when the named respondent challenged the legitimacy of the additional legal fees, the estate trustee commenced a passing of accounts proceeding.  The court found that the issue concerning the legal fees could have been addressed by motion to the court without a passing of accounts and therefore the costs associated with the passing of accounts were not payable from the estate. 

Thanks for reading,

Chris Graham

 

 

 

 

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I am a big fan of the feel good test in my approach to success in law, business or anything else. It is not what people actually get that dictates success but how people feel about it at the end of the day. In a previous blog I commented that client satisfaction is based on this very principle, but what about our own success as lawyers? How those in the legal profession define success has many answers, depending on the individual and the area of law. 

In this week’s edition of Canadian Lawyer Magazine 4Students you can see what some lawyers think of as the pros and cons of practising in a particular area. If you scroll way down, you’ll see pros and cons of practising in trusts & estates by Liza C. Sheard, of Evans Sweeny Bordin LLP in Hamilton, and by our very own Paul Trudelle at Hull & Hull LLP in Toronto.

A definite pro for any trusts and estates lawyer is that it is an intellectually fascinating and challenging area of law. The cons are based around the emotionally charged atmosphere we often encounter. 

Work life balance is a very common buzz-word these days. Ultimately work-life balance comes from within and not from your job description. You must know yourself and integrate your talents, your passions and your responsibilities into each day to meet your constantly changing priority list.

I’m a firm believer that in order to be a success at anything you have to enjoy it – it has to mean something to you. As I celebrate my first anniversary in trusts & estates law, at the end of the day I feel pretty good. But I feel even better about getting up the next day to come in and do it all over again. 

Thanks for reading all week and have a great weekend! 

Sharon Davis

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

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There has been a lot of attention in Ontario lately about  the intentions of litigants quarrelling over inheritance. As mentioned in a recent blog this can even happen in advance, in the form of capacity litigation.  In recent cases the Court has made it clear that it is incumbent upon not only the parties but on counsel as well to cooperate sufficiently to move the litigation along. At threat of costs payable by the parties or even their solicitors, all concerned are generally expected to work together to come up with a timely litigation management plan to efficiently dispose of the matter.

Recent Ontario decisions illustrate that greed and rivalry amongst family members will not be tolerated in our courts.  However, this is by no means exclusive to Ontario. In the B.C. case of Calbick v. Warne we see the same familiar scenario. The testator in this case, the parties’ mother, knew her children would quarrel after her passing but still couldn’t do anything to prevent it.

What more could she have done? In such cases, it might be appropriate to have a family conference to mediate the squabbles prior to death, especially if the testator feels that he or she can have a moderating influence on the family and can explain the reasons behind his or her decisions with the assistance of a professional and neutral mediator. If intentions are understood by the entire family, and if everyone agrees to abide by them in advance of your passing, then they might stay on the same page after your death and there is a reasonable chance of avoiding the fight. Who knows – maybe the rivalry can even be solved once and for all in such an environment. A nice bonus.

Earlier this week I blogged about proportionality, which is now a codified requirement in the Ontario Rules of Civil Procedure. It is a common sense consideration, but unfortunately one that is not all that common in estates litigation where emotions run high and hurt feelings have been building for a lifetime. Be that as it may, litigants be warned, gone are the days when estate litigation was “free” with the expectation that the estate would pay costs for everyone. 

Sharon Davis

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

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In any estates practice one is likely to see more than a few battles motivated by emotion rather than money. Take, for example, the not so unusual scenario of a younger woman who marries an older man and claims against his estate on his death. The son from a previous marriage, being the major beneficiary of the contested Will, vehemently denies the claim and a bitter dispute ensues. Not uncommon for such disputes to go on for years. In one US case, however, the dispute has outlived the husband, the wife and the son, leaving only the estates to battle it out after 15 years of litigation that saw its way into a Houston Probate Court, a Los Angeles Bankruptcy Court, a variety of appeal courts and even the US Supreme Court.

This, of course, is the Anna Nicole Smith (legal name Vickie Lynn Marshall) battle over her elderly husband’s $1.6 billion estate. Smith, a former stripper, and J. Howard Marshall, an oil tycoon, married in 1994 when she was a 26 and he was 89. Marshall died 14 months later.  In a Will that was re-done after his marriage to Smith, the elder Marshall left almost his entire estate to his son E. Pierce Marshall. 

Smith contested the Will in Probate Court in Texas at the same time as an appeal from her bankruptcy proceedings was pending in Federal Court in California.  As part of a counterclaim in the bankruptcy proceedings, Smith was awarded millions against Pierce for tortious interference with a substantial inter vivos gift (worth $300 Million) that she claimed her husband intended to give to her.   

In the latest decision  released on Friday, March 19, 2010, the 9th U.S. Circuit Court of Appeals found that the Probate Court's decision that the billionaire was mentally competent and under no undue influence when he left nothing to Smith, was the earliest final judgment on matters relevant to the tort proceeding, which precluded the award of damages by the Federal Court.  For more on the background of this case see this 2007 blog.

Pierce Marshall passsed away in 2008.  His wife, Elaine Marshall, continues the battle on behalf of his estate with Smith's ex-boyfriend, Larry Birkhead, and attorney, Howard K. Stern, in charge of Smith's estate. Birkhead and Smith’s 3-year-old daughter, Dannielynn, was named Smith's heir in 2008 after she died of a drug overdose at age 39 in a Florida hotel.

Whether emotion will continue to fuel the litigation remains to be seen but this article in the Washington Post seems to indicate that it is not over yet, with another trip to the US Supreme Court possible in the future.

Thanks for reading!

Sharon Davis

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

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It has now been almost a year since the April 1, 2009 Practice Direction Concerning the Estates List of the Superior Court of Justice in Toronto so I thought I’d start the week with a with a two-part blog containing a few general observations and some practice tips for Toronto. Today’s topic is Scheduling Appointments.

The Scheduling Appointment was created to reduce adjournments and to make the court system more efficient and less costly. It preceded Ontario’s new Rules of Civil Procedure and had many of the same goals in mind, most notably proportionality, which is now an overarching consideration. 

A Scheduling Appointment is ten minutes long and is a very versatile mechanism to allow you to get before the Court relatively quickly to obtain assistance. It can be used to “speak to a matter”, to set down a timetable or to obtain a consent order. They can be booked on two days’ notice and generally you can get on the list within a week or two.

Adjourning a Scheduling Appointment

• If a Scheduling Appointment was booked through OSCAR or the Estates office, you can adjourn it administratively by filing your confirmation form cancelling the Scheduling Appointment or adjourning it to another date. It is best to do this as far in advance as possible. Once you file the confirmation form, you cannot easily amend it to get it off the door list. You should check OSCAR the day before the scheduled date to make sure the cancellation has been noted and the matter is not on the list for the day you seek to adjourn. If you fail to appear on a Scheduling Appointment, the Court can set a timetable or a hearing date in your absence.
• You can adjourn the Scheduling Appointment to a specific date and note this on your confirmation form but this is not necessary. If you are in negotiations or are otherwise not ready to address the matter, you should note on your confirmation form that you will bring it back to a Scheduling Appointment when the parties are ready. This will avoid endless re-scheduling of Scheduling Appointments. Since they are quick and easy to get, no need to schedule them way in advance.  
• If a Scheduling Appointment has been scheduled by the Court, counsel should appear to speak to an adjournment request. Although the Practice Direction doesn’t specifically say this, it has been the de facto procedure adopted.

Stay tuned for Part 2 in tomorrow’s blog about adjournments of Hearing Matters, and some general tips when appearing in Court on adjournments.

Have a great week!

Sharon Davis

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

 

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In a recent article in the Toronto Star, estate litigation was explored from another angle; fighting over the estate before there really is one to fight over.

The author of the article discusses a story regarding an individual who was waiting for his parents to pass away, so that he could reap the financial reward of their hard work. On first glance this may seem shocking, but unfortunately is achingly familiar. Although we see family fights every day, and indeed engage in litigation over a deceased loved one’s life savings, a specialized fight appears to be more and more prevalent.

The article suggests that the increase in disputes over a parent’s estate while they are alive can be attributed to demographics; the result of a generation that is living longer, had a habit of saving, and find themselves in need of care.

Claims against an estate are often brought under the guise of needing funds during the course of caring for an ailing or ill parent. In a recent decision, Justice David Brown commented on this very issue, indicating that the courts are losing their patience with money hungry children.

I am hopefully years away from dealing with ailing family members and the reality of dealing with their financial affairs. Yet in light of the recent spotlight on this issue, I hope that if you find yourself in this position, you make decisions after careful consideration of all possible outcomes.

Thanks for reading,

Nadia

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

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I don’t think that there was any way to walk around our city yesterday without seeing many people wearing green. I’ve always enjoyed a good St. Patrick’s Day celebration, but for the first time yesterday I felt the need to find out a little more about the holiday. 

 

I quickly learned that what most of us just know as a day to consume green drinks or wear a green shirt, actually began as a celebration of St. Patrick’s life. Celebrating St. Patrick takes place on March 17 in honour of the date of his death.

 

Many cities around the world celebrate St. Patrick’s Day, Chicago even goes so far as to dye the Chicago River green. Not to be outdone, many Canadian cities manage to celebrate in their own unique ways. Montreal has a yearly parade, the largest of its kind in Canada, Calgary has been known to change the lights on the Calgary Tower to green, and on several occasions Toronto sports teams have traded in their traditional uniforms for a green version.

 

Celebrating of the death of St. Patrick is a strong tradition in Toronto and around the world. So, whatever your means of celebrating, I hope you enjoyed yesterday and good luck on the early planning for next year.

 

Until Next Time,

 

Nadia
 

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As I have been practising in the area of estate litigation for a few years, I occasionally think that I have seen it all; that every recurring story I hear about a family war tends to lose its originality. Not true. Take for instance a recent story that was posted online in the Telegraph, involving a U.S. estate fight.

Tasha Tudor was from New England and has been described as the “unconventional Martha Stewart.” Ms. Tudor died at the age of 92 following complications from a stroke.  The basis of Ms. Tudor’s estate dispute centers on her decision to leave almost her entire estate to her eldest son, virtually cutting out her three other children. 

The oldest son argues that his late mother intended to cut out his three siblings from her estate because they were estranged from her. One of the siblings, a U.S. Air Force lawyer, who claims he was not estranged from his late mother, has asserted that the 2001 Will is invalid on the basis that his older brother unduly influenced his late mother.

The dispute has gotten so acrimonious between the siblings that they could not even agree what to do with their mother's ashes. On motion to the Court, it was ordered that Ms. Tudor’s ashes be divided in half, with one-half to be given to the oldest son and the other half to his siblings. Lawyers are now fighting over who is responsible for a snow plough bill!

It is reported that some of the last words by Ms. Tudor were “Oh, will there ever be a cat and dogfight when I die. But I don't care. I won't be here to see it.” 

It is often difficult to comprehend the harsh realities of litigation until you step into the shoes of one of the parties. I wonder if Ms. Tudor were alive to witness the severity of this dispute whether she would take back those words?

Thank you for reading

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

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Sara Crosbie, a writer with the Globe and Mail, recently published an article on the succession planning crisis looming over Canadian family businesses. In her article, Ms. Crosbie refers to a study completed by Deloitte and Touche, which indicates that two-thirds of Canadian families have no written contingency plans to guide them through a disability or death.

To understand the importance of family businesses to the Canadian economy consider the following study which was completed by Deloitte and Touche and found that “family businesses have 4.7 million full-time employees, 1.3 million part-time workers and sales of around $1.3 trillion.”

Ms. Crosbie states that the lack of succession planning could be attributed to the idea that most parents think, “there's nothing here to pass on”, but the children think, “actually, I'm quite interested in taking it on.” 

Dr. Pramodita Sharma attributes the lack of succession planning to the fact that “money and mortality conversations don’t usually take place until the head of a business is gravely ill. By then, it’s too late to start talking.”

Regardless of the cause, the consensus on resolving this looming crisis is rather simple, communication. Dr. Sharma says “Succession planning is either passing to the next generation of your family, passing to employees … selling it, to be merged or acquired by someone or it could be closing the business down.  That needs preparation, too. You want to get the maximum value out of the business so it has to be a pro-active succession plan. You don't want death to be the succession plan.”

Thank you for reading and have a great day.

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

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The BBC has reported on the successful challenge of a mother's Will by her daughter, Christine Gill, which had left more than £2m to the Royal SPCA.  What was remarkable was the fact that the daughter argued that her father unduly influenced her mother, who suffered from an anxiety disorder, into making a Will she did not want to make.  Certainly this is a rare case.

The BBC noted that this was "just the latest in a long line of high profile, and often bitter, disputes surrounding the estates of deceased family members."

The article went on to note that "it is difficult to pinpoint the exact reasons for such an increase, but the increased wealth generated by many ordinary people over the past two decades has been an obvious factor.  Other influences have been the sharp increases in house prices in the past decade or so, the current recession, and increasingly complex family structures, often with children from two or more marriages." 

In commenting on the Gill case, it was noted that the RSPCA, being a registered charity with a statutory duty to safeguard its assets, will likely feel compelled to appeal.

Have a great weekend!

David M. Smith

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There may be some out there who believe that the art of managing estate disputes is best learned by getting one’s hands dirty, by spending long hours poring over the finer details of probate law, by pacing the floors of the courtroom, perhaps even by shadowing a senior partner to soak up the nuances of the mediation process… Bah! For those of you looking to fast-track, you need only tune in on Saturday mornings for an abbreviated approach. To wit:

Operation Rabbit – an animated Looney Tunes cartoon first released in 1952, and featuring Bugs Bunny and Wile E. Coyote. The cartoon consists of about seven minutes of the Coyote scheming to trap and eat Bugs Bunny. In a clever attempt to turn the tables, Bugs arrives at Coyote’s cave claiming to surrender, and requests that Coyote sign as a Witness to his Last Will and Testament. Bugs conveniently hands Coyote a “pen” which is in fact a stick of dynamite. Coyote offers Bugs his best “How very boring” look and snuffs out the fuse, seconds before the fuse at the other end of the stick of dynamite explodes.

                                                                 
Dough-Ray-Me-Ow – a Merrie Melodies cartoon released in 1948, starring Heathcliff the Cat and Louie the Parrot. Heathcliff enlists Louie’s assistance to read a note (actually a Will) left behind by their owner. This gist of the note is that their owner has bequeathed $1 million to Heathcliff, unless Heathcliff happens to meet his demise, in which case, Louie is one bounteous birdie. Cue Louie’s plotting of the downfall of his feline companion.

                                                         
 

I could provide other examples, but th-th-th-that’s all folks.
 

Jennifer Hartman, Guest Blogger
 

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The Arkansas blogosphere is abuzz over the colourful facts of Heirs of F.D. Goza, Jr., et al. v. Estate of William E. Potts, Deceased, a decision of the Arkansas Court of Appeals.  Relatives of the testator tried to propound a photocopy of his Last Will, arguing that he lacked testamentary capacity and was under insane delusions when he destroyed the original.  The Appelate Court affirmed the decision of the trial judge that the deceased validly revoked his Will and died intestate. 

The evidence of revocation was overwhelming: The testator wrote such phrases as “void”, "bastards" and "get nothing" over each paragraph, applied Liquid Paper over the names of the beneficiaries, and later shredded the document in front of his insurance agent.  The Court held that ”the evidence clearly showed that [the testator] was an irascible, angry, suspicious, controlling, profane, and difficult man for most of his adult life; however, we cannot say that the trial court erred in refusing to find that he labored under insane delusions.”

The remarkable aspect of this case is the fact that there was a credible and disinterested witness to the shredding of the original Will.  This fact certainly bolsters the presumption of destruction that exists in Ontario when the original Will can not be located on the death of a testator. 

David M. Smith

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The requirements of formal validity have, on occasion, bedeviled the Courts.  Presented with overwhelming evidence of testamentary intent, the Court's hands may nonetheless be tied by uncompromising legislative requirements.  

In Nova Scotia, the legislature proclaimed (on August 18, 2008) an amendment finally permitting the making of Holograph Wills.  Moreover, the amendment also permits Wills to be admitted to probate that do not meet the requirements of formal validity if the Court is satisfied that a flawed document nonetheless reflects the testamentary intentions of the testator. 

Lawyer's Weekly just reported on MacDonald v. MacDonald, a decision out of the Nova Scotia Supreme Court.  In this case, the testator made a Will entirely in her own handwriting but left it unsigned.  It was, however, witnessed and the two witnesses gave evidence that the testator had attested to it as her last Will in their presence.  The testamentary document before the Court in MacDonald therefore fell within both branches of the amendment to the provincial statute.  However, the Will was not admitted to probate because it was made prior to the proclamation of the amendment to the Wills Act.  Unlike Ontario's Succession Law Reform Act which provided for retroactivity to 1978, the Nova Scotia amendment did not have a similar clause.

David Morgan Smith

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

 

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Yesterday’s blog spoke to the issue of an Application for Psychiatric Assessment (Form 1) under the Mental Health Act R.S.O. 1990. To review, upon completion of the psychiatric assessment, the patient must either be released or admitted as an involuntary patient, a voluntary patient, or an informal patient.

• Involuntary Patient: Before you become an involuntary patient, a doctor must assess you and place you on a Form 3 (Certificate of Involuntary Admission), which lasts for two weeks. The Mental Health Act speaks very specifically to the legal criteria that must be met in order for such a Certificate to be completed. An involuntary patient is not permitted to leave the hospital or psychiatric facility.

• Voluntary Patient: There is no portion of the Mental Health Act that authorizes a psychiatric facility to detain a voluntary patient. In this regard, a voluntary patient can leave the facility at any time, as long as they do not pose a risk to themselves or others. If they were to be identified as posing a risk to themselves or others, then they must be made an involuntary patient (by means of a Form 3) in order to be detained.

• Informal Patient: An informal patient is either a child under the age of 16 years, or someone who is incapable of making treatment decisions for themselves (as defined by the Health Care Consent Act) and who therefore has been admitted to the facility under the consent of another person (i.e. ‘substitute decision-maker’; usually a concerned family member). The informal patient cannot be held against their will in the hospital, however, an informal patient can be made ‘involuntary’ if a doctor deems that a Form 3 is necessary.

Jennifer Hartman, Guest Blogger

 

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Under the Ontario Mental Health Act, a Form 1 refers to an Application by Physician for Psychiatric Assessment, or APA.  A Form 1 allows a doctor to hold a patient in a hospital or psychiatric facility for up to 72 hours in order to complete a psychiatric assessment.  In order to sign a Form 1, the doctor must have examined the patient within the 7 day period prior to the Form 1 being signed, after which the Form 1 expires.  In addition, the doctor must find that the patient meets one of two sets of criteria, depending on whether or not they are deemed capable of consenting to treatment in a psychiatric facility within the meaning of the Health Care Consent Act. 

The physician’s clinical opinion can, in consideration of what is appropriate in the circumstances, be based on their own observations, or in combination with facts communicated to the physician by others (e.g. family members, friends).

Once the Form 1 has been signed, anyone can bring (or force) the person into a psychiatric facility for assessment within the 7 day period before the Form 1 expires.  Upon completion of the psychiatric assessment, the patient must either be released, or admitted as an involuntary patient, a voluntary patient or an informal patient.  Tomorrow’s blog posting will explore these options in greater detail.

Jennifer Hartman, Guest Blogger

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Recently on our website, Bianca La Neve blogged on the uncertainty surrounding the U.S. Death Tax and Jennifer Hartman blogged on Nabokov's unfinished work "Laura" which the author had wanted destroyed but which his executor published anyway. 

One would be forgiven for thinking the two blogs could not possibly have anything to do with one another. 

But the recent death of J.D. Salinger, notoriously reclusive author of "Catcher in the Rye," has caused at least one commentator to consider the dilemma posed to the estate of a deceased author in the context of the legal uncertainty that Bianca recounted in her blog.  As Richard A. Behrendt, self-described "tax geek" observes (as quoted in Floyd Norris's blog posted on the New York Times website on January 29, 2010):

"Many have predicted that the representatives of the estate of someone who dies [during the period between January 1, 2010 and the date of implementation of any retroactive death tax] would mount a constitutional challenge to the retroactivity of the law.... Another unique issue [with respect to Salinger's estate] is valuation. Some reports have hinted that Salinger had anywhere from 2 to 15 unpublished novels in his safe. Not to suggest that there is an unpublished “Catcher in the Rye” lying around (which has sold 60 million copies), but the possibility raises some really interesting valuation questions, namely, how much is an unpublished Salinger novel worth for federal estate tax purposes?"

For another interesting consideration of Salinger's estate from an estate law perspective see this link.

David Morgan Smith

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I recently read an article composed by The Children’s Lawyer, Debra Stephens, named Minor Settlements: How to Ensure Court Approval. I found this article to be particularly helpful as the article speaks to the role of The Children’s Lawyer in litigious matters and explains the common issues that arise during settlements involving minors.

Fundamentally, it is important to understand the role of The Children’s Lawyer with respect to their involvement in settlements concerning minors, which Ms. Stephens describes as: “The Children’s Lawyer is not a party to the proceeding and is not in an adversarial role with any of the parties. Rather, The Children’s Lawyer acts as an advisor to the court, making recommendations to assist the judge in determining whether to approve the proposed settlement”.

In her article, Ms. Stephens talks about a few issues that commonly arise during settlements involving minors. One of those issues that Ms. Stephens touches on is legal fees. Ms. Stephens states that legal fees are an important factor in determining whether to approve a settlement on behalf of a minor. Factors that are relied on when considering the reasonableness of a solicitor’s account are set out in the Court of Appeal decision Cohen v. Kealey and Blaney and include:

1.                  time spent;

2.                  legal complexity;

3.                  degree of responsibility assumed by the lawyers;

4.                  monetary value of the matter in issue;

5.                  the importance of the matters to the client;

6.                  degree of skill of the lawyers, results achieved;

7.                  ability of the client to pay; and

8.                  expectation of the client with respect to the fee. 

Also, another factor not mentioned in the case above is ensuring that access to justice is obtained for parties under a disability. I found Ms. Stephens’ article to be particularly useful in my practice and I would certainly recommend it to any practitioner who ordinarily runs into issues involving The Children’s Lawyer.

Thank you for reading.

Rick Bickhram

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As most of us return to our offices from a long weekend, I would like to share with you an interesting case, which I read over the weekend and deals with an Application to declare a family member unworthy to inherit. S.R. (Succession de), 2008 QCCS 4015, is a decision released by the Quebec Superior Court.

In, S.R. (Succession de), the Deceased was survived by his spouse and four children.    The Deceased was a savvy businessman who, during his lifetime, was quite successful. In 1995, the Deceased asked a notary to prepare a Will. A draft Will was sent to the Deceased for his review but it appears that he never executed the Will. In 2000, the Deceased was diagnosed with cancer and subsequently died in 2003.

After the Deceased died, the children looked for their father’s Will in the home and at the Deceased’s office with no success. We are given to understand that all of the children, searched, under the bed, every closet, every brief case belonging to the Deceased, but were unable to recover a Will.   

One of the daughters prepared a proposal requesting the siblings to acknowledge that the Deceased promised to transfer a certain property to her. This would have the effect of increasing her entitlement under the Deceased’s estate. Her siblings refused to sign the acknowledgement, which led to the ensuing dispute. The disgruntled daughter, subsequently informed everyone that she had in fact, located a Will of the Deceased in an old briefcase, which was allegedly in the bedroom closet of the Deceased’s residence.

The discovered Will was similar to the draft Will prepared earlier, except that it included two additional provisions which favoured the disgruntled daughter, in the amount of $2.4 million dollars and was apparently executed by two witnesses from New York. 

The disgruntled daughter tried to probate this Will, but it was contested by her siblings and it was ultimately ruled that the Will could not be probated by the Honourable Justice Gagnon. Justice Gagnon held that there were all the sorts of question marks surrounding the validity and execution of the Will. 

After the Application for probate was refused, the disgruntled daughter then produced a document which was a blank cheque allegedly signed by the Deceased and which purported to give the disgruntled daughter her share in a building that she coveted and various other monies for her home. The siblings refused to admit the authenticity of the blank cheque and commenced proceedings against the disgruntled daughter to have her declared unworthy to inherit under the Deceased’s estate. 

Under the section 621 of the Civil Code of Quebec, it states that a person “may be declared unworthy of inheriting where a person is guilty of cruelty towards the deceased, and where the person has concealed, altered or destroyed in bad faith the Will of the deceased, or a person who has hindered the testator in the writing, amending or revoking of their Will.” 

In relying on this provision, the children advocated that the disgruntled should be precluded from inheriting because she concealed and altered, in bad faith the alleged Will of the Deceased. 

The court held that the disgruntled daughter had likely altered the Deceased’s Will, had taken the draft prepared by the notary and added some typewritten additions that benefited her to the detriment of her siblings and mother. The court further held that the disgruntled daughter likely had taken the blank cheque from the Deceased’s home and also forged that after his death.

Accordingly, the disgruntled daughter was declared unworthy to inherit and her claims against the estate were dismissed.

An interesting point, in Ontario we do not have any similar case law or legislation that would actually allow someone to commence a proceeding, seeking to have someone else precluded from receiving their entitlement absent criminal activity such as murder.

Have a great day,

Rick Bickhram

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On December 15, 2009, the Good Government Act, 2009 received royal assent. This statute amended or repealed over 300 pieces of legislation, ranging from the Accumulations Act to the Off-Road Vehicles Act. There are various amendments that should be of particular interest to those of us who practice estate, capacity and trust litigation.

The Crown Administration of Estates Act is amended by adding a new section 5.1, dealing with the enforceability of compensation agreements. A “compensation agreement” is defined to mean an agreement with an heir of an estate that provides for compensation, directly or indirectly, to one or more persons or entities on the location, recovery or distribution of any interest in the estate to which the heir may be entitled. In cases of estates administered by the Public Guardian and Trustee, there must be fair disclosure before a possible heir is asked to sign a compensation agreement. In addition, there is a cap on compensation of 10 per cent of the value of the possible heir’s interest in the estate. Click here for the complete text of the Act.

The Health Care Consent Act, 1996 is amended to increase the time allowed, from two days to four days, for the Consent and Capacity Board to issue written reasons for decisions. In addition, the Act is amended to allow the Board to direct Legal Aid Ontario (instead of the Public Guardian and Trustee or the Office of the Children’s Lawyer) to arrange for legal representation for a person who may be incapable with respect to a treatment, managing property, admission to a care facility or a personal assistance service. Click here for the complete text of this Act.

Bianca La Neve

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Testators choose their executors.  The choice of executor is commonly assumed to be a very personal choice predicated on trustworthiness.  But in the face of this assumption, can the beneficiaries of an estate ever agree amongst themselves to oust an executor in the absence of any recognized basis for removal?  A pending case in the U.K., as reported in The TimesOnline, addresses this question.

A firm named Will Drafters in the U.K. was named executor in the Will of a deceased.  The beneficiaries named in the Will are not happy with the compensation Will Drafters is entitled to under its contract with the testator.  The beneficiaries have brought this so-called "test case" to see if the Court will order the removal of the named executor based simply on the fact that all beneficiaries seek its removal in favour of another company, Final Duties, which will apparently charge a lesser rate of compensation.  Not surprisingly, Will Drafters takes the position that they contracted with the testator for their services at an agreed rate of compensation and ought not to be removed. Certainly there is no indication that there are any of the factors that give rise to the removal of an executor (in Ontario, this would proceed under s.37 of the Trustee Act)

Quite apart from the legal issue of when the Court ought to remove an executor, the case has sparked a debate respecting whether "will-writing companies" (as they are called in the U.K.) such as Will Drafters and Final Duties, ought to be regulated. As the Times notes: "The only will-writing association to offer accreditation — the Fellowship of Professional Willwriters and Probate Practitioners — says that its research shows that two thirds of people wrongly thought the willwriters they used were all trained solicitors. A recent report on regulation of legal services by Lord Hunt of the Wirral expressed concern about the “fringe legal market” in will-writing, probate and claims handling."

On a final note, to all who read yesterday's blog, please see this link for a revised version of that blog now posted in its place on our website

David M. Smith

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What follows is a revised edition of this morning's blog which inadvertently created confusion between the principles of Abatement and Ademption. I apologise for any confusion caused by the initial version.

On Monday, I blogged on the payment of debts of an estate and the steps that an estate trustee ought to take to protect him or herself from any personal liability.  Today's blog is a sequel of sorts (it would have been posted yesterday but a Groundhog Day tie-in was too good to resist).

The issue today is Ademption and Abatement, words that will only be found in a law dictionary.  Ademption occurs when a specific gift of personal or real property in a Will is no longer in existence at the date of death, in which case the gift fails.  If specific legacies of cash can be partially satisfied (as detailed below) from the funds remaining in the estate after payment of debts, then there is an Abatement of such legacies.

For greater clarity, where there are debts to be paid, the residuary beneficiaries take the hit first. If the debts can be paid and still leave something in the residue, than the specific cash legacies can be paid in full.  However, when the residue is exhausted by the payment of debts, and there is a shortfall between the amount remaining and the amount required to fully fund the specific cash legacies, the principle of abatement dictates that these legacies are reduced on a pro rata basis.

The situation gets considerably more complicated if an executor is faced with a cash poor estate and a Will that contains combinations of cash legacies, gifts of real estate, gifts of personal property, and gifts of personal bank accounts (sometimes called general or demonstrative legacies).  In such a case, good legal advice is critical.

David M. Smith

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It is a trite principle of estate administration that "debts must be paid before beneficiaries."  Assuming this maxim is followed, the estate trustee will not assume any personal responsibility for the debts of the deceased. On the other hand, if the estate trustee distributes the estate without due consideration to creditors' entitlements, the estate trustee may be left personally exposed unless the beneficiaries return their entitlement to the estate trustee to fund any unpaid debts.

To be fully relieved from personal liability, the estate trustee must make reasonable efforts to locate and satisfy the creditors of the deceased.  Advertising for creditors is therefore an essential step in protecting the estate trustee from liability and ensuring that the creditors of the deceased have had the opportunity to be paid. But the importance of the advertisement ought not to be overstated.  If an estate trustee can be proven to have had independent knowledge of a creditor who does not claim (for whatever reason) in response to the advertisement, and if the estate trustee distributes in the face of this knowledge, he or she could conceivably be personally responsible to such a creditor.

The bottom line is that the estate trustee, understandably focused on his or her fiduciary duty to the beneficiaries, stands in the shoes of the deceased and must give more than a passing regard to the creditors of the estate.

David M. Smith

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A recent article in the Financial Post, “Eight Tips for Feud-Free Estate Plans”, provides helpful advice on how to minimize family-infighting over one’s estate (or retirement) plan. 

The article is a must-read for anyone planning for the future as well as those who advise them. 

Here are a few of the tips that are offered:

1.      Give some thought to how you will fund future long term care

The idea of going to a retirement or care facility is something a lot of people don’t like to think about. However, this does not mean it will never happen – and if it does, the cost can be high. 

Longterm care insurance is offered by various companies and, for a relatively low premium, can provide the funding needed to pay for care costs when and if they arise.   

 

2.        If you own a vacation property, give special consideration to how it will be distributed on your death

 

Fights over a family cottage happen quite often and can easily result in lengthy and costly litigation. A frequent source of tension is when one sibling wants to keep the cottage in the family (“because that’s what mom would have wanted…”) while another sibling is happy to see it sold and to receive part of the proceeds. 

To avoid this it is worthwhile discussing with your children (if they are to be beneficiaries of your estate) what to do with the property before doing your will. 

 

3.      Make sure to keep your will up to date

 

You might be surprised how many people forget to change their wills when their circumstances change (for example, leaving gifts to three grandchildren, and neglecting to update the will when more grandchildren are born, leaving some out in the cold). 

Whenever your family structure changes (by birth, marriage, divorce, death) it would be worthwhile to contact the lawyer doing your will to see if revisions would be advisable. 

It is always suggested that you discuss your plans with those who will be affected – this is a good way to help avoid fighting down the road.

Have a great day!

Megan F. Connolly

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Huntington’s disease (HD) is a progressive, degenerative brain disorder that causes certain nerve cells in the brain to waste away. Huntington’s is inherited, and if one of your parents has Huntington’s disease, you would have a 50% chance of getting the gene for the disease. Everyone who carries the gene will develop the disease. Since the HD gene was isolated in 1993, one can be tested to see if they are a carrier, however because there is no cure for HD, some people choose not to be tested.

About 1 in 10,000 Canadians has HD.

There are two types of HD: i) adult-onset, the most common form, with symptom onset in the mid 30s and 40s; and ii) early onset, which accounts for about 16% of all HD cases, with symptoms developing in childhood or adolescence.

Huntington’s disease is associated with three types of symptoms:

· Movement symptoms, referred to as chorea, which consist of jerking, involuntary movements (‘tics’) of the limbs, trunk or face;
· Cognitive symptoms including a gradual impairment of concentration, memory, judgment, reasoning, decision-making and learning. This cognitive decline starts in a very subtle fashion, but eventually results in dementia; and
· Psychiatric symptoms may include depression, and psychotic behaviours such as delusions, hallucinations, paranoia and inappropriate outbursts.

HD usually runs its course in about 10 to 30 years, with a strong correlation between an earlier onset and a more rapid progression of the disease.

Jennifer Hartman, Guest Blogger
 

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I came across an article when thinking about blog topics for this week.   It appears that a recent Australian study from the Baker IDI Heart and Diabetes Institute in the state of Victoria concluded that watching television can increase risk of death.

The study, published in Circulation: Journal of the American Heart Association, followed the lifestyle habits of 8,800 adults who were age 25 or older at the commencement of the study. It was found that each hour spent in front of the TV daily increased the risk of dying earlier from cardiovascular disease, as well as creating a 9% higher risk of cancer related death.

 

Although the study focused on Television watching, it seems from the publication that the conclusions may be even more related to a sedentary lifestyle. While this may seem like a logical conclusion, this result is to be distinguished from any previous knowledge of the positive effects of a healthy active lifestyle. It appears that we now have evidence which assures us that spending time sitting, particularly in front of the television may cause additional harm to our bodies, even if we generally live an active lifestyle.

 

I can’t personally advocate on behalf of any of the articles to which I’ve referenced, but what I do know, is if there is any truth to the possibility that television viewing can shorten a life, it seems to be a pretty simple solution to get outside, enjoy the beautiful weekend forecast and go for a walk.

 

Have a nice weekend, thanks for reading,

Nadia

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

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Jimi Hendrix's family and Sony Commercial Music Group have collaborated and the result is a new album featuring Hendrix music.  Mark this day in your calendar as this album should hit the stores on March 9, 2010.

The Hendrix legacy is closely protected by Experience Hendrix LLC, a family run company, currently being run by Janie Hendrix, Jimi's sister.  She has indicated that the Estate 'had enough material for "a decade's worth" of new releases, both music and video.'  

The currently slated release will be titled "Valleys of Neptune", and will include never before heard recordings.  The music will mostly be taken from a four month studio session in 1969, a year before Hendrix died, at the young age of 27.

With his estate in possession of so much fresh artistic material, it looks like we may be able to look forward to many more Hendrix albums.  Shockingly, Hendrix may release more in death than in life.

Until Tomorrow,

Nadia

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Franz Kafka left a will instructing his friend, Max Brod, to burn his manuscripts and not to publish them.  However, Brod spent much of his life editing Kafka's work for publication, making Kafka's writings into very influential pieces of fiction.  However, Brod's life work, and his alleged actions are currently under scrutiny in Israeli courts.

It appears that certain Kafka manuscripts have fallen into the hands of two sisters who received them from their mother.   Their mother, Esther Hoffe, received them from Max Brod, some 20 - 30 years after Kafka's death.   The sisters allegedly sold some manuscripts for millions of dollars and shared the profits with their mother.   Others purportedly remain in a safety deposit box.

This matter is currently before Israeli courts and it appears that there is some debate about the manner in which the manuscripts were received.  It further appears that true ownership of the documents is being contested, and the courts have given the parties involved, including the State of Israel and the National Library, an opportunity to settle this matter out of court.  The settlement deadline expired last week.  If the parties have not yet reached a settlement, the courts have indicated that they will order the safety deposit box where the manuscripts are being held to be opened, potentially damaging the manuscripts and reducing their value.

The outcome of this litigation will surely be interesting from an Estate perspective, but also may provide us with several new literary works from a truly famous author.   Only time will tell if the world will be gifted with such new works. 

Until Tomorrow,

Nadia

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Although the name "Miep Gies" may not be familiar to you, she was a key player in a story you almost certainly know.  Miep Gies, together with four others, provided a hiding spot for Anne Frank and her family as well as 4 others during WWII.  This act would have been enough to make her a hero.  Mrs. Gies' role did not stop there: without her help there is a good chance the world would never have seen Anne Frank's diaries published.  Mrs. Gies discovered Anne's diaries and gave them to Anne's father at the end of the war, allowing for their eventual publication.  

I am sure that, for many, reading Anne's diary was a memorable experience.  It certainly was for me.  So much so, that when I visited Amsterdam I sought out the Anne Frank Museum to view the hiding place which Mrs. Gies and her fellow protectors risked their lives for to provide to the Frank family.   It was a truly humbling experience.

Mrs. Gies was the last survivor of both the protectors of Anne and her family.  She was the last living connection to the 'Anne Frank story'.  While she maintained that her actions did not make her a hero, I beg to differ.  Her courage and thoughtfulness will live on forever through Anne's story, and although her passing is a true loss, it allows us to remember and once again reflect on her heroism. 
 

Until tomorrow, Nadia

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

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Korsakoff’s syndrome is a brain disorder usually associated with chronic, excessive alcohol consumption. At the physiological level, Korsakoff’s is caused by a thiamine (vitamin B1) deficiency, which ultimately affects the brain and the central nervous system. In the context of alcoholism, this thiamine deficiency comes about as a result of poor diet as well as an impeded ability of the stomach lining to absorb vitamins.

Korsakoff’s predominantly affects men between the ages of 45 and 65. Women tend to develop the disease at an earlier age than men. According to the Alzheimer’s Society UK, it takes about 20 years for the disease to develop in men, whereas it takes about half that time to develop in women.

At first glance, one with Korsakoff’s syndrome may appear fairly normal. An in-depth assessment, however, would reveal symptoms including:

· Memory loss, particularly of events post-onset of the disease;
· Impaired ability to acquire new information;
· Lack of insight into the condition;
· Perseveration (repetitive comments or questions);
· Eye movement disorders; and
· Confabulation, or ‘falsification of memory’ in which the sufferer makes up events to cover up their inability to remember events.

Once Korsakoff’s develops, recovery is unlikely, however the progression of the disease can be halted with abstinence from alcohol. Treatment for Korsakoff’s is comprised of thiamine therapy, as well as the administration of medications usually given to people with Alzheimer’s disease.

Jennifer Hartman, Guest Blogger
 

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Each year the Ontario Bar Association (OBA), Trusts and Estates Section, considers candidates for its Award of Excellence. Last year, the Section paid tribute to Barry Corbin as the recipient.

The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates.

Any Trusts and Estates Section member of the OBA in good standing, as well as former members of the section who have retired or been appointed to the bench, but not including current officers of the Executive of the Trusts and Estates Section or the Executive of the OBA, are eligible to be nominated.

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I think it’s fair to say that the Internet has severely disrupted the traditional value chains in regards to how we obtain our media content. The value of content, starting with music, movies, TV shows, news and most recently books are being redefined for the Internet age.

I recently read an article published by the BBC News Magazine entitled “Page-turning Passion”, which details the culture of book reading and particularly how we have obtained and received the content from books. 

In the 1640s, books were more than just a tool to obtain information. It was a “treasured personal possession, and object whose loss would be keenly felt. To their privileged owners they were coveted objects, symbols of conspicuous consumption to be displayed alongside paintings, sculpture and silverware”.

Over time, manuscripts were replaced with printed books. Noticeably, printed books lacked that unique quality that gave each manuscript its touch of art. After all, printed books were simply copies produced on the production line. I am a product of the printed book era and have thoroughly enjoyed reading. I reject the idea that some have asserted indicating that printed books are impersonal volumes. As a reader, we find creative ways to make them ours, by underlining and highlighting in these books. I can dog ear pages if I want to.  I can rip out pages.  I can draw pictures in them. 

Now we have entered into a new era, the e-book era. If you have not yet heard of the Kindle, it is Amazon’s wireless reading device. The Kindle also has applications for most smart phones, which makes downloading and reading even more convenient and, unlike the 1640s, the Kindle is simply a tool to obtain information. 

Rush, scuttle and hurry seems to be the ear marks of today’s society. As an urban commuter, rarely do we have the time or the space to pull a book out while crammed onto a subway. Now it is as simple as purchasing a book while on my way to the subway and doing all of the reading off of the smart phone while I am on the subway.

There will always be advocates against the growth and importance of technology, but as an urban resident and a commuter, if it weren't for phone reading, I wouldn't be reading at all.

Thank you for reading,

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

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The Toronto Star recently reported on Alzheimer’s disease, stating that “cases of the mind-robbing disease will more than double to 1.25 million within 30 years as baby boomers age”. 

With the numbers pointing upward as the population grays, a recent report by the Alzheimer Society, entitled Rising Tide: The Impact of Dementia on Canadian Society suggests the following steps to help reduce the impact of dementia:

1.                  Prevention programs based on healthy diet and physical activity that can delay the onset of dementia by two years, with a potential cost saving of $219 billion over the 30-year period.

2.                  Enhanced skill-building and support programs for family caregivers, many of whom suffer financial hardship because they must leave jobs to look after a relative with dementia.

3.                  Assigning a case manager to each newly diagnosed dementia patient and their caregivers, which could help the person remain at home longer and lessen the strain on the long-term-care system.

Today, annual funding for Alzheimer’s is approximately $24 million. The Toronto Star reports that if “nothing changes, this sharp increase in the number of people living with dementia will mean that by 2038, the total costs associated with dementia will reach $153 billion a year”. 

We have already seen a substantial influx with respect to Will challenges, particularly because there has been a big question mark about the testator’s capacity. The grim realty is that this will be a continuing problem that Estate Solicitors are going to have to tackle.

Thank you for reading.

Rick Bickhram

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As we are in the beginning of a new year, a quote from one of my favourite poets, T.S. Eliot, comes to mind:  “For last year's words belong to last year's language and next year's words await another voice.”  

I recently came across an article entitled "The 8 Life Stages of Estate Planning", authored by G.M. Filisko.  In his article, Mr. Filisko points out the obvious - during our life we will go through different phases and our estate plans should reflect these changes. Mr. Filisko lists the following stages to consider regardless of the phase one may be currently in:

1.      Young, single and carefree
2.      Single, but committed
3.      We’re Engaged
4.      Just Married
5.      The Joys of Parenting
6.      Divorce (if unfortunately applicable)
7.      The Middle Ages
8.      The Golden Years

Regardless of where one may fall in this spectrum, it is never to late to get started.

Since making New Year’s resolutions seems to be the theme around this time of the year, let’s make a resolution to be more organized this year and spend some time considering our estate plans.

Thank you for reading.

Rick Bickhram

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Continue Reading...

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After Alzheimer’s Disease, Lewy body Dementia (LBD) is one of the leading causes of dementia in the elderly, accounting for up to 20% of cases of dementia.

In Lewy body Dementia, abnormal protein structures called Lewy bodies develop in regions of the brain responsible for thinking and movement. These Lewy bodies were first described in 1912 by Friederich Lewy, a colleague of Alois Alzheimer.

LBD symptoms closely resemble those of both Alzheimer’s disease and Parkinson’s disease. The Alzheimer’s-like symptoms of LBD include fluctuating levels of attention and alertness, and a progressive loss of memory, language, reasoning and higher mental functions such as calculation. The Parkinson’s-like symptoms of LBD include rigidity, stiffness, stooped posture and a shuffling gait. Complex, well-formed, but oddly unthreatening visual hallucinations are one of the earliest and most common (>80% incidence) symptoms of LBD and usually consist of people, children or animals.

Here are some more quick facts about LBD:

· LBD is slightly more common in men than women. The average age of onset is 75 to 80 years of age.
· There is no single test to diagnose LBD. Like Alzheimer’s disease, a diagnosis of LBD is considered ‘possible’ or ‘probable’ after other possible diagnoses are considered and eliminated.
· Lewy body Dementia usually has a rapid onset and rapid progression. The average span of time between diagnosis and death is about 5 to 7 years.
· There are no know therapies to slow the progression of LBD, nor is there a known cure. The goal of treatment is to control the cognitive, psychiatric and motor symptoms of the patient.

For additional information, click here for the Alzheimer Society of Canada or here for the Alzheimer Society of Toronto. The Lewy Body Dementia Association is also an excellent resource.

Jennifer Hartman, Guest Blogger
 

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A “Living Will” or “Advance Directive” is a document that indicates the grantor’s preferences with respect to health conditions and treatment, including the level of medical intervention. It is a guide for the person who must communicate with physicians and make health care decisions in the event the patient is not able to do so him or herself. It is different from a Power of Attorney for Personal Care, which is a document naming a specific person to act on your behalf.

An Advance Directive can be very detailed and tailored to the individual’s personal circumstances. For example, on the University of Toronto Centre for Bioethics website you can find information on a Cancer Specific Advance Directive. 

Given the complex medical nature, it may well be that the specifics of such a directive lay more comfortably in the bailiwick of the health care professional rather than the legal professional.  Ideally, the Power of Attorney for Personal Care should include a detailed health care directive. This approach offers the assurance that the grantor’s wishes are taken into account without the wording in the Advance Directive inadvertently voiding his or her Power of Attorney for Personal Care.

A Power of Attorney for Personal Care may also include conditions or restrictions other than Advance Directives such as limiting the attorney's ability to act until a confirmation of incapacity has been obtained, and determining the method of assessing capacity.

If a person becomes incapable of making personal care decisions and has no Guardian of the Person or Power of Attorney conferring the authority to make health care decisions, the Health Care Consent Act of Ontario provides a statutory hierarchy of persons who can provide consent on the incapable person's behalf in descending order of authority as follows:

1. Spouse or partner
2. Child or parent
3. Brother or sister
4. Any other relative

Therefore, it is especially important to prepare a Power of Attorney for Personal Care if you would not want your spouse, child or parent to make health care decisions on your behalf should you become unable to make them yourself.

For further information on this topic, see Q & A on Powers of Attorney and Living Wills by the Office of the Public Guardian and Trustee for Ontario, or this book about Living Wills by M. Dianne Godkin.

Thanks for reading.

Sharon Davis

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As all litigators in the province of Ontario likely know by now, January 1, 2010 ushers in not only a new decade but New Rules of Civil Procedure. The New Rules apply to all matters, regardless of when they were commenced.

The amendments to the Rules effected by Ont. Reg. 438/08 are the most extensive and significant since the Rules were adopted in 1985. The fundamental goal of the reform is to make the civil justice system more affordable and accessible for Ontarians.

Some of the more significant changes are as follows:

Proportionality – In April of 2009 we saw a movement toward proportionality of time and expense with the interests at issue in estate litigation upon the introduction of the New Practice Direction for the Estates List of the Superior Court of Justice in Toronto. New Rule 1.04(1.1) brings this factor into play for litigation in all jurisdictions and mandates that Court Orders and Directions be proportionate to the importance and complexity of issues and amounts at stake.

Summary Judgment – Rule 20 expands the Court’s discretion to assess credibility, weigh evidence, conduct mini-trials with oral evidence, and award substantial indemnity costs against a party acting unreasonably or in bad faith.

Expert Evidence – Experts must provide fair objective and non-partisan opinion, give opinion evidence only on matters that are within their expertise, and assist the Court as reasonably required. This duty to the Court prevails over any obligation experts owe to the party who retained them. Expert reports must be filed 90 days before the pre-trial conference and responding expert reports must be served 60 days prior to the pre-trial conference.  

Discovery – Among the many changes regarding discovery is a new definition of relevance. The phrase “relating to any matter in issue in the action” has been replaced with “relevant to any matter in issue in the action”. This changes the test to one of simple relevance. Proportionality comes into play again in Rule 29.2, which sets out the considerations that must be made in determining questions to be answered or documents to be produced. Parties must agree to a written discovery plan (Rule 29.1) and there is a 7-hour time limit on oral examinations for discovery (R. 31.05.1).

Time – Calculation of time pursuant to Rule 3.01(1)(b) for notice periods of 7 days or less excludes holidays. There are also earlier deadlines for service and filing of materials for motions (Rule 37) Applications (Rule 38) and appeals from interlocutory orders (Rule 61).    

If your New Year’s resolution is to learn the New Rules and their impact on your estates practice, you should attend the OBA Trusts and Estates Section Seminar, "Stay on top of the New Rules of court" on January 6, 2010.

Program Chair, Jane Martin, and speakers,  Mr. Justice David M. Brown and Madam Justice Lois B. Roberts of the Superior Court of Justice, and Hull & Hull’s own Suzana Popovic-Montag, will guide you through the changes and provide an opportunity to ask questions regarding implications for estates practitioners.

For more on this topic see Gary Watson’s summary of the amendments and Marni Pernica’s recent article in OBA’s Deadbeat magazine.  Previous Hull & Hull commentary by Rick Bickhram and Paul Trudelle can be found here and here.

I suspect that following the New Rules is one Resolution you will be sure to keep!

Sharon Davis

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Pseudodementia is a dementia syndrome which resembles dementia, but is actually the result of an underlying psychiatric disorder, most often depression. While the presentation of pseudodementia in the elderly varies widely, it closely mimics dementia in that common symptoms include:

· poor attention and concentration;
· a reduction in speed of cognitive response;
· compromised problem-solving and decision-making; and
· impaired immediate recall.

The two identifying hallmarks of pseudodementia are: i) there is no known neurological condition to otherwise explain the symptoms and ii) the cognitive deficits show considerable improvement, or even reverse, when the psychiatric illness is treated.

The concept of pseudodementia is a controversial one, in that it is considered a ‘soft diagnosis’, as there are no explicit diagnostic criteria; a physician’s checklist, if you will. There is no validated test, or group of tests to differentiate depression-related cognitive dysfunction from degenerative conditions such as Alzheimer’s Disease. Compounding the confusion surrounding pseudodementia is the fact that depression is frequent in patients with irreversible dementia. As a result, pseudodementia is often misdiagnosed as simply ‘true’ dementia.

In the context of estates litigation, a diagnosis of pseudodementia has the potential to significantly change the landscape of a capacity challenge. As an example, an article in the Bulletin of the American Academy of Psychiatry and the Law describes a nearly successful attempt to defraud a patient of their estate during her ‘presumed’ dementia, when in fact, she suffered from pseudodementia from which she later made a dramatic recovery.

Jennifer Hartman, Guest Blogger
 

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This is our last blog of 2009!

Thank you for reading our blog posts over the past year. We have enjoyed preparing them. We hope that we have been informative.

With the close of 2009, we turn and look to the promises of 2010. While there is no doubt many things are to be considered for the new years, from a family perspective, perhaps this is the year to resolve to consider, or reconsider, whether your family’s legal affairs have been properly planned.

On behalf of everyone at Hull & Hull LLP, I would like to wish you a wonderful new year. We hope that you have a safe, restful holiday. 

Happy New Year.

Rick Bickhram

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Without understanding what the term “social media” is, it can sound intimidating to those in our industry who are not computer literate. But what is social media? Wikipedia defines social media as “media which are formed mainly by the public as a group, in a social way, rather than media produced by journalists, editors and media conglomerates." In an article, composed by Gary Edgar of LawPro, he defines social media as anyone looking to engage, connect and network with others online.

Gary Edgar does point out that one thing social media is not, is a fad.   Social Media is fundamentally changing the ways we interact and communicate with others and it will be interesting to see how this form of media continues to evolve. 

Social networks can be used to learn, exchange ideas and collaborate on projects. I have participated in numerous forums where I have learned how to troubleshoot many problems that I may have encountered with my automobile and computer, moreover, I have also learned neat little tips on some home renovations.  Social Media can also be used as a form of marketing. As Gary Edgar points out in his article, 15-20 years ago, the options for self promotion were limited to newspaper ads, the yellow pages, a radio or TV. Now with the concept of social media, our options have multiplied and the costs for self promotion have been drastically reduced.

However, the social media world is not the flawless paradise that we all would like it to be. There have been instances of online imposters, questions as to how much of my real life persona should I share online, how many people are seeing the things I post and who owns the information that is placed online?  These are all very important questions that will become clearer as this form of media continues to evolve.

Until next time,

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

 

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As our year winds down and we prepare for the New Year, we have much to look forward to as our judicial system has undergone a minor facelift to reflect the changes in our society.  One such change has been the implementation of new legislation, The Apology Act (the “Act”), which came into effect on April 23, 2009.

The Act would permit the communications of expressions of sorrow or regret without worrying that the comments can later be used adversely in a civil court. Under the Act, an apology is defined as:

An expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or action relate.

Proponents of the Act, suggest that the new legislation will enhance the dispute resolution process, promote accountability and enhance the affordability and speed of justice by shortening or avoiding litigation. The rationale for the implementation of this Act is similar to the rationale for the changes to the Rules of Civil Procedure, which is to make our system accessible, cost effective and efficient.

I agree with the purpose, the idea behind implementing this act, however I question .. has our society become so litigious that we now require the legislature to protect us from apologizing?

Thank you for reading my blog, until next time, 

Rick Bickhram

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For those of you with one eye on the next page of the calendar, Hull & Hull LLP will be posting our third series of medical/health blogs starting on Monday January 4th, 2010. The series will run every Monday thereafter in the month of January, for a total of four blogs. The following subjects will be featured:

• Pseudodementia
• Lewy Body Dementia
• Korsakoff's Syndrome
• Huntington's Disease

We hope this series proves both useful and informative. Please feel free to contact us at nonley@hullandhull.com with your feedback.
 

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Attorneys for property who receive gifts from grantors tomorrow will have to give them back, unless they have good evidence supporting the fact of the gift.  The rule that fiduciaries (including attorneys for property) must prove purported gifts is stated in Cooke v. Lamotte(1851), 15 Beav. 234 at page 239.

Justice Sheard applied this rule in Kee v. Yip [1995] O.J. No. 2879, disallowing a series of transfers by an attorney to himself, stating with respect to one such transfer, “The burden on Tom Kee to show that his mother gave him the $20,000 is a heavy one. His evidence, simply the assertion that this transaction, one of many that he did under power of attorney, was intended by her as a gift to him falls well short of discharging that burden of proof. Under the principle stated in Cooke v. Lamotte, supra, the $20,000 cannot be allowed as a gift and must be refunded." 

Even more recently, in Volchuk v. Kotsis, 2007 CanLII 28527 (ON S.C.) Justice Langdon disallowed a series of purported gifts (cheques and money transfers) effected by an attorney, noting in addition that attorneys were precluded from relying solely on their own evidence by section 13 of the Ontario Evidence Act, which provides that the claimant “shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.” 

 

In estates litigation, this rule is very useful in passings of accounts initiated pursuant to section 42 of the Sustitute Decisions Act by disappointed beneficiaries of an estate against the deceased's former attorney for property.  Of course, this rule forms part of the Common Law and is not confined to passing of accounts proceedings.

Merry Christmas to fiduciaries including attorneys, and enjoy your presents.

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.

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Testamentary instruments, that is.

A common burr among beneficiaries is that the estate trustee often resists disclosing the deceased's Will or other testamentary instruments.  Without reviewing the entirety of the testamentary instruments, beneficiaries may never feel certain of the extent of their interest in an estate.  This strategy tends to add fuel to pre-existing distrust among the parties. 

Fortunately, there is a simple solution.  By section 9(1) of the Estates Act, any person may be forced to produce any testamentary instrument, and by section 9(2) any person with knowledge of a purported testamentary instrument can be forced to answer questions about the document:

9.  (1)  Whether a suit or other proceeding is or is not pending in the court with respect to a probate or administration, the Superior Court of Justice may, on motion or otherwise in a summary way, order any person to produce and bring before the registrar, or otherwise as the court may direct, any paper or writing being or purporting to be testamentary that is shown to be in the possession or under the control of such person.

(2)  If it is not shown that such paper or writing is in the possession or under the control of such person, but it appears that there are reasonable grounds for believing that he or she has knowledge of such paper or writing, the court may direct such person to attend for the purpose of being examined in open court or before the registrar or such person as the court may direct, or upon interrogatories respecting the same, and to produce and bring in such paper or writing, and such person is subject to the like process in case of default in not attending or in not answering questions or interrogatories or not bringing in such paper or writing, as the person would have been subject to if he or she had been a party to a suit in the court and had made such default, and the costs of such motion or other proceeding are in the discretion of the court.

With these provisions, motions are often not necessary.  A simple letter bringing the provision to the attention of the estate trustee along with a polite request to produce the document(s) is all that should be required.  By the same token, estate trustees (or anyone else with possession or knowledge of documents purporting to be testamentary) have no justification for secrecy.  Happily, this provision creates a powerful incentive for information-sharing, which is often a prerequisite to ending or preventing an estates dispute.

Have a great day,

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.

 

 

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In the spirit of gift-giving, I offer some optimism:

Canada's economic data is fairly good, according to this National Post report.  Growth is strong and consistent, retail levels are almost back to pre-recession levels.  Very happy news after two brutal years for a lot of people.  Gasoline prices were down.  S&S/TSE Composite Index up 51% from March 9 through November 30, 2009.  Even Ottawa has a good outlook for next year.

No hurricanes this year, no tsunamis, no asteroid strikes.  Enough snow on the ground to qualify as a white Christmas, but mercifully the cold just hit last week.    And in December, the odds against the Maple Leafs making the playoffs improved this month, to "infinity minus 1 to1".  All in all, things to feel positive about, and signs of hope.

The United States may be building up incomprehensible debt, China's vast reserves of "international currency" built up over the past 20 years may be a prisoner to a falling US dollar, Europe may be stalling and slipping, Dubai may be insolvent, but not to worry: Canada is faring quite well, relatively speaking of course.  So we're the best.

Enjoy your day,

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.

 

 

 

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When is a potential witness incapable of being examined?  Price J. examined this issue in Vokes Estate v. Palmer, 2009 CanLII 70132 (ON S.C.) in the context of a motion to compel a party to attend an examination under oath, where that party's solicitor had earlier refused to allow him to take the oath or give a solemn affirmation.  

Ultimately finding the witness capable of taking an oath and giving evidence, Price J. reviewed the authorities.  The leading case of McGowan et al v. Haslehurst et al. (1977), 17 O.R. (2d) 440 (H.C.J.) states that parties should be able to avoid attendance at examinations for discovery on the basis of unsoundness of mind only in the clearest of cases.  The onus of proof of unsoundness is on the party seeking to avoid the examination (Barnes v. Kirk, [1968] 2 O.R. 213 (ON C.A.).

Price J. also applied the principles applicable to testing the competency of witnesses giving evidence at trial.  Under section 18 of Ontario's Evidence Act, any person is presumed competent to give evidence, and therefore the onus is on the person to establish incapacity.  The presiding judge must examine the proposed witness. Section 16(1) of the Canada Evidence Act prescribes questions for such an inquiry, namely: whether the witness understands the nature of an oath or solemn affirmation, and whether the witness is able to communicate evidence.

As a sidenote to this decision, Price J. reviewed and rejected a capacity assessment that found the potential witness incapable of giving evidence.   

A review of this decision will be helpful to any practitioner dealing with questions of a potential witness's capacity to give evidence.

Have a great week,

Chris Graham

Christopher M.B. Graham - Click here for more information on Chris Graham.

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We are very saddened by the loss of our beloved founding partner, mentor and friend, Rodney Hull, who passed away on December 5, 2009.  Rodney leaves behind a legacy that will forever be cherished, fostered and maintained.

 For over 50 years, Rodney’s reputation has been synonymous with outstanding excellence, dedicated professionalism and pure passion.  He has set the standard for our profession, and we are all privileged to have had the opportunity to know and to have worked alongside him over the years.  We will honour Rodney’s legacy and his memory, and the leader, the advocate and the gentleman that he was.   

 Our thoughts are with the Hull family during this very difficult time.

 The lawyers and staff of Hull & Hull LLP.

 
 

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In a Probater article, my colleague, David M. Smith, mused on “in contemplation of marriage” clauses in Wills legislation, which preserve Wills in the face of marriages. As noted by David, to avoid revocation by an impending marriage, a testator usually must include a clear and unambiguous declaration in his/her Will that it is made in contemplation of marriage. The language used must clearly evidence the testator’s contemplation of marriage to a particular person (who is undoubtedly a beneficiary under the Will).

A recent decision out of British Columbia dealt with whether or not a marriage had the effect of revoking a Will where the existence or intent of a “contemplation declaration” was ambiguous. In MacLean Estate v. Christiansen, the testator and Ms. Christiansen began dating in April 2003, and living together in August 2003. In 2005, the testator finally divorced his former spouse, with whom he had had four children. In 2006, Ms. Christiansen and the testator announced their engagement to family. The testator then executed a Will and power of attorney in favour of Ms. Christiansen in June 2007. In August 2007, the couple married but the testator died shortly thereafter. 

The June 2007 Will provided that for Ms. Christiansen by way of a spousal trust. One of the clauses in the Will stated, in part: “to deliver to my spouse, Karen” (i.e. Ms. Christiansen). The issue became whether this clause could be construed to be a declaration that the Will was made in contemplation of the testator’s marriage to Ms. Christiansen. 

The court ultimately held that the June 2007 Will had been revoked by the subsequent marriage. The court held that the reference to “my spouse” was not a declaration that the Will was made in contemplation of the marriage to Ms. Christiansen. It was a reference to their common-law relationship; Ms. Christiansen was the testator’s common-law spouse at the time of execution of the Will. As held by the Court, “the Will could not survive the conversion of a marriage-like relationship, which is accorded all of the rights and obligations attached to a legal marriage, to one of legal marriage”.

Interestingly, it was the named executor who applied for the determination as to whether the June 2007 Will was revoked by the subsequent marriage. The children of the first marriage on the one hand, and Ms. Christiansen on the other hand, each advised the Court that they did not wish to assert that the Will be submitted for probate. The situation was likely non-adversarial due to the fact that whether the estate devolved by Will or an intestacy, all of the children and Ms. Christiansen would benefit (to varying degrees). It should be noted that the new Wills, Estates and Succession Act will abolish the “contemplation of marriage” provision in British Columbia.

Thanks for reading,

Bianca La Neve

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In a decision earlier this year, Justice Harris in Binkley Estate v. Lang, (2009) 50 E.T.R. (3d) 44, looked at the construction of wills and fundamental issues giving effect to the testatrix’s intent. The decision involved a 92 year old testator who was both capable and in control of her affairs. The testatrix made a will in 1996 which provided a legacy of $2,500, for each of the three respondents in the action. In 2006, the testatrix elected to make minor changes to her will.

After her death, it was discovered that the 2006 revision of her will increased each legacy to $25,000. The Estate Trustee brought an application for a declaration that the clause which amended the bequest was not reflective of the testatrix’ true intentions. The Applicant asserted that the intended bequest was $2,500, and not the increased amount. The testatrix informed her friend that she intended to change her will with respect to only three issues, other than the bequest at issue. The drafting solicitor later stated that he inadvertently amended the bequests at issue to $25,000. Prior to signing, a friend of the testatrix and the drafting solicitor reviewed the will and the testatrix appeared to have read the will and none noticed the inadvertent error.

Rectification, an equitable remedy which seeks to prevent a written document from being used as an engine of fraud or misconduct "equivalent to fraud", was at issue this case. It was stated that the court’s task in a rectification case is corrective and not speculative and is to be utilized with abundant caution. Further case law supports that where a Will was not read over to the testator and the mistake is made in circumstances in which the Court may omit words or dispositions, the mistake may be established on the balance of probabilities.

Upon review, the judge determined that it was improbable that the testatrix increased this legacy ten fold without notifying her trustee or making comment. As such, the court decided to rectify the will to reflect the intentions of the testatrix and reduced the bequest to $2,500.

Thanks for reading,

Nadia

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

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In Estate Litigation we are faced every day with feuding families.  Is the fight avoidable or inevitable?  For those of you with siblings, I'm sure at some point in your lifetime you've gotten upset and yelled those words which for some reason really hit home: "Mom always liked you best".  On some level, favouritism, or the perception of it, is at the heart of Estate Litigation. 

A study released by Cornell University of child favouritism surprisingly discovered that mothers may have distinct preferences amongst their children.  This may not be shocking to some, but I was frankly a little surprised that they admitted it.  It shouldn't come as such a surprise given the feuding I see everyday, and I'm sure some of you are feeling validation right about now for all those years where you thought it, but had no proof.  I can already hear the 'I told you so's'.

On some level this favouritism is rooted in reasonableness.  The study claims that the favourite is generally the child whom the mother feels closest to, who is most similar in attitude and values.  Of note, is that this child is generally a daughter.  Also, it's often the child who has provided the most support in the past.

While the after effect of such favouritism is evident in Estates, the effect of this preferential treatment starts earlier than that.  Often these feelings come to light when attorneyship becomes an issue.  While the rationale for the decision can likely be explained to your children in a manner which could be understood, we tend to hide these feelings and let it come as a surprise.  Maybe we should reconsider that and let our feelings show through, so at the end of the day we can understand our parent's decisions and ask about them before it's too late.

Nadia

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

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I'm sure there are a few people who are holding out and refuse to join facebook, or some other virtual world.  Yet for the majority, checking online accounts is merely part of an everyday routine.  What happens when you are no longer around to check these accounts?  This may seem like a trivial factor when dealing with the loss of a loved one, but seeing posts on a facebook wall belonging to a recently deceased family member can be extremely painful.
 
In a recent episode of The National, our own Ian Hull articulated that an online presence is something which we increasingly need to consider when dealing with Estates.   This presence can cause difficulties for Estate Trustees.  Online accounts generally require passwords; passwords which are not necessarily shared with anyone.  In fact, recently, I signed up for an online account and was specifically instructed not to share my password.  Then the dreaded words appeared on the screen: 'Please pick a question which will be provided to you in the event that we need to verify your identity.'  I had to pick and answer a question three times before my password could be set.  I'm not sure if the people closest to me would know the answers to those questions.  How could they, it took me a while to think of questions I was certain I would remember the answers to.  What would happen if my family had to access my accounts and I wasn't there to help them? 
 
This issue was explored in a recent article in the New York Times.   The article suggests naming a digital executor to get around the problem of passwords.  I've yet to explore this personally, but it is certainly intriguing. This concept is new and how it will play out in estate planning, administration and litigation is yet to be seen.  I'm not sure I'm willing to give my passwords to a complete stranger at yet another website, but at the very least, I've reconsidered sharing some of my more obscure passwords with my family.  Something to think about. 
 
Until Tomorrow,
 
Nadia

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A recent article in the Toronto Star discusses the possibility of immortality.  Not just a distant possibility, but a real possibility within our lifetimes.  It even suggests that the first 1000 year olds are almost certainly already alive.  According to the article, there is the possibility that we would simply replace our bodies as they deteriorate.  If this process goes according to the theories of scientist Ray Kurzwell, we would not stop the aging process, but merely transfer our brain contents into a newer body.  The reality of this makes me cringe.  Does this mean that my grandma would suddenly look like a sister?  Its a little too much to digest.

This article goes on to mention that recently the Nobel Prize in medicine was awarded to American scientists for research on the "immortality enzyme".  This enzyme allows cells to multiply without damage.  It shows promise in the fight against cancer, but apparently also holds great promise in the fight against mortality.

The implications of immortality on an estates practice are rather obvious.  However, the realities of living forever are not.  I can't even begin to imagine the global impact this would have on our society, or how we would adapt.  A life without end still seems a far fetched idea to me.  I suppose only time will tell.

Nadia

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

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The 12th Annual Estates & Trusts Summit, took place late last week on November 12th and 13th, 2009 in Toronto.  This program, organized by the Law Society of Upper Canada, presented a variety of issues which are of interest to anyone practicing in the Estates and Trusts field.

The summit spanned two days, and dealt with topics running the gamut.  Some of the Topics and Speakers included:

• Estate Planning in Recessionary Times (Heather Evans)
• U.S./Canada Cross-Border Planning (Beth Webel & Jim Yager)
• Family Law and Your Estates Practice - An Update (Daniel S. Melamed, C.S.)
• Drafting Multiple Wills (Clare A. Sullivan)
• Estate Administration Issues (Rosanne T. Rocchi)
• Creating Insurance Trusts to Minimize Probate Tax on Life Insurance (Robin Goodman)
• The Exercise of Trustee Discretion (Bernadette Dietrich)
• Practice Management Issues for Estates Practitioners (Louise F. Christofolakos)
• Constructive Trusts and Quantum Meruit (Elizabeth A. Bozek)
• The Standard of Care and Will Drafting (Ian M. Hull, C.S)
• Duelling Powers of Attorney (Jordan M. Atin, C.S.)
• The Latest Costs Issues (Shael Eisen)
• Remedies for Non-Compliance with Court Orders (Kimberly Ann Whaley, C.S.)
• The Top 10 Decisions Released by The Honourable Mr. Justice David Brown (Timothy G. Youdan)
• Representing the Incapable Person (Marshall Swadron)

For a full list of speakers and topics visit the Law Society of Upper Canada Website.  If you were not able to attend, contact the Law Society of Upper Canada to obtain materials.

Nadia M. Harasymowycz

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The creating of a legacy is not just about the size of an estate left behind by a testator.  A publication of Imagine Canada entitled Philanthropic Success Stories details the nature of philanthropy and gives all of us pause to consider how best to create a lasting legacy.  As the authors note, philanthropy is best defined by heart, time and spirit rather than one's bank account balance.

Imagine Canada is a charitable organization which has as its mandate the fostering of non-profit and charitable causes.  The authors of Philanthropic Success Stories observe that Philanthropists (in the traditional sense) are being replaced by people better defined as: "champions, advocates and volunteers"  The authors specifically note that philanthropy is being pushed out in new directions that embrace such adjectives as: risk-taking, pioneering, innovative, and being "ahead of the curve."

As an example, the authors refer to the Caledon Institute of Social Policy which is credited for spearheading, among other things, the implementation of the National Child Benefit.

Have a great weekend!

David M. Smith

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In considering a topic for today's blogs, I had a number of competing ideas and decided that the best approach would be just to muse on a couple of issues that I have had pause to consider over the past couple of weeks.

On a Motion for Court Approval of Minutes of Settlement under Rule 7 of the Rules of Civil Procedure, the written consent of any minor over the age of sixteen is required "unless a judge orders otherwise."  It is a somewhat curious requirement in that the person whose written consent is required is nonetheless under the jurisdiction of the Children's Lawyer (subject to the supervision of the Court).  It is difficult to imagine a scenario in which the Children's Lawyer does not object to the form and content of Minutes of Settlement yet the Court refuses to approve the settlement if one of these more "senior minors" withholds their written consent.

And what about this one:  The presumption of advancement as between married couples is enshrined in the rather curious wording of the Family Law Act.  Yet how does this presumption dovetail with the obligations of a spouse, not as a spouse, but as an attorney for property under a Continuing Power of Attorney for Property?  It is a difficult issue especially when there is uncertainty as to the capacity of a donor spouse to make a transfer into joint ownership.  Can a spouse benefit from the presumption of advancement in circumstances where he or she is added as a joint owner to an account while arguably acting under the Power of Attorney?

David M. Smith

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Did you know that there are tools available on our website that will allow you to get more mileage out of our blogs and podcasts?

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We thank you for your continued loyalty to the Toronto Estate Law Blog and welcome your suggestions and comments regarding how we can continue to serve you best.

Your Team of Hull & Hull LLP Bloggers and Podcasters

 

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Sunnybrook Health Sciences Centre houses Canada’s largest Veteran’s care facility, offering care to a current population of 500 vets, a few from the Korean War, but the majority of whom are from World War II. Residents are housed in two wings: the Kilgour Wing which promotes independent living, and the George Hees Wing with supportive care. Innovative dementia care is provided for Veterans in the Dorothy Macham Home, which is a therapeutic environment based on a residential model.

An article in last Saturday’s Toronto Star highlighted the unique challenges presented when a history of wartime service is coupled with a present day diagnosis of dementia. The hallmark of dementia is a (usually) progressive loss of memories, starting with the most recent memories formed. In a nutshell, this is why patients with dementia ‘forget’ that their spouse has died, or ‘forget’ that their children are now adults. For some of Sunnybrook’s Veterans, this means the war is not over. It is here. And it is now. According to Dr. Jocelyn Charles, medical director of the Veteran’s centre, behavioural problems in Sunnybrook’s dementia patients are twice as prevalent as the provincial average. In fact, in a study of Sunnybrook’s Veterans, 16 percent still showed active symptoms of PTSD, such as ‘distressing dreams, flashbacks and anxiety.’

Canada’s WWII veteran’s are dying at the rate of 400 a week.

Will you remember?

David M. Smith

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Medical Records are one of the most important categories of evidence available to the estate litigator. In most cases, medical records from health care providers who treated a testator in and about the time a Will was made will be seen as the most persuasive evidence available because the author of such records will be seen as both (i) possessing some degree of expertise related to the assessment of capacity and (ii) exhibiting complete objectivity as a witness (unlike the family members who may be contesting capacity).

In Ontario, the College of Physicians & Surgeons of Ontario (“CPSO”) has posted a policy on its website providing the public with information concerning medical records and what they are required to contain. Not surprisingly, security and privacy of medical records is one of the foremost concerns. Of particular interest is the fact that one of the “principles” of good record keeping as mandated by the CPSO is to maintain “information essential to others for a wide variety of purposes…including legal proceedings”

For its part, the Ministry of Health and Long-Term Care has stringent requirements for the production of Claims Reference Files providing details of all health care providers who have provided services to a deceased client. Typically, a Certificate of Appointment of Estate trustee With a Will or a Court order will be required to obtain a Claims Reference File for a Deceased.

David Smith

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The formal requirements for execution of a will, or any testamentary instrument in Ontario, are governed by Part I of the Succession Law Reform Act ("SLRA").  The definition of "will" in s. 1 of the SLRA includes a testament, codicil, will, or other testamentary disposition.  The most critical form requirements are that the will must be in writing, signed by the testator and two witnesses.  Other requirements exist, of course.

Many jurisdictions contain dispensation clauses relaxing the formal compliance requirements, if the court is satisfied that a document or any writing on a document embodies the testamentary intentions of a deceased.  For example, s. 23 of Manitoba's Wills Act  or California's Probate Section 6110-6113.  Not so with Ontario, except for holograph wills and for members of the Canadian Forces on active service.  While there is wiggle room in terms of the interpretation of the execution requirements, for instance what constitutes "in writing" or "signed by the testator", if the formal requirements are not met and no specific exemption applies, there is no saving provision based on testator's intention, and therefore no testamentary instrument.

This can have harsh consequences, by invalidating otherwise perfectly good wills on narrow technical grounds.  On the other hand, the SLRA provides time-tested, black-letter legal clarity.  Time tested, because the formal requirements descend from the Wills Act, 1837.

Have a great weekend,

Chris Graham

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Prosecutors have dropped the charges of kidnapping and carrying a concealed weapon against the shopkeeper accused David Chen.  Readers will remember Mr. Chen as Toronto's Chinatown shopkeeper who arrested a shoplifter, with the help of two employees, then got charged himself.

Mr. Chen, owner of Chinatown store Lucky Moose Mart, had spotted the thief and with the assistance of his employees, tackled the thief, bound him in twine and detained him in a delivery truck until the police arrived four minutes later.  The thief had allegedly victimized local stores, and has a criminal record going back 32 years, all according to this news report.  Incredibly, this record includes - according to the news report - stealing from Mr. Chen's own store and a neighbouring store, including on that same day.  Truth being stranger than fiction, the thief was granted a plea-bargain sentence of 30 days in relation to his theft from Mr. Chen's store in part because he agreed to testify against Mr. Chen and the two employees. 

The Crown's theory seems to be that because the arrest was not contemporaneous with the crime, the thief having returned to the store about an hour after committing the theft, the arrest is not protected by citizen's arrest provisions.  Mr. Chen has apparently rejected a plea bargain - he had videotape evidence of the theft. 

Mr. Chen is married with 2 children, aged 2 and 6, and has become a bit of a folk hero.  How hot is this story?  The Globe and Mail reported at 12:13pm yesterday, the National Post at 4:03 pm, CBC at 2:54pm, the Toronto Star right away too. 

Have a good day,

Chris Graham

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Successful motions for summary judgment are rare occurrences, and any guidance on costs awards is welcome.  Justice Mesbur's costs endorsement in the personal injury case Asmassu v. John (2009), 2009 CanLII 58579 (On S.C.) is a straightforward application of costs principles on a successful motion for summary judgment by co-defendants.   

This motion arose in a claim that was one of a series of lawsuits by the plaintiff against the co-defendants, all arising out of the same set of facts.  As the pleadings disclosed no reasonable cause of action, in that context, the proceeding amounted to an abuse of process.  The claim included allegations of serious professional conduct and the relief sought included damages of $50 million.  As Justice Mesbur wrote,

"He cannot make claims like this without expecting that they will be vigorously defended, with significant costs being incurred as a result.  Given the level of the claim, the importance of the issues to the parties, and all the other factors enumerated under the rules, I am of the view that the amounts claimed for costs are fit and just in all the circumstances."

Justice Mesbur awarded the full partial indemnity costs claimed by both co-defendants.  The hospital's solicitors had reduced their partial indemnity rates from $32,000 to $20,000, and Justice Mesbur emphasized this reduction in awarding the full $20,000.  The doctor's solicitor was awarded claimed partial indemnity costs of $10,393.35, lower than the hospital since the hospital's solicitor had made most of the submissions.    

Have a great day,

Chris Graham

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A private member's bill that would decriminalize medical practitioners assisting with suicide is about to get its first reading in the House of Commons.  

Bill C-384 would amend sections 222 (homicide) and 241 (assisted-suicide) of the Criminal Code.  Currently, these provisions criminalize (or confirm the criminal liability of) medical practitioners who participate in patients' suicides by providing their services.   Bill C-384 would create an exception to criminal liability for medical practitioners if prescribed elements were met:  patients would have to be 18 years of age, suffer from a terminal illness or be in severe pain without prospect of relief (though a patient who refuses pain-killers still qualifies), provide 2 written consents to die "while appearing to be lucid" at least 10 days apart, and provide a written designation of another person to act on his or her behalf if he loses lucidity.

The phrase "while appearing to be lucid" rings alarm bells off their walls.  The test implies a very low capacity threshold by comparison to say, testamentary capacity, but does not deliberately fit anywhere identifiable on the capacity threshold scale.  From a estates law perspective, there is no requirement in the bill that medical practitioners consult personal care guardians or attorneys before going about their business.  There is no requirement for a guardian or attorney to even consider these issues, but such legal possibilities might dramatically complicate the duties and obligations of a guardian or attorney.     

From this quick analysis, this bill appears to have been written without input from the estates bar (which is unsurprising - it is the first reading of a private member's bill in a criminal law matter in federal jurisdiction).  This is a good example of how broad the estates/capacity field is and the potential effects of developments in other areas of law on estates/capacity law.

Have a great day, and enjoy every day you get,

Chris Graham

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A testator who suffers from "insane delusions" may not have testamentary capacity.  The case law provides numerous definitions and tests for insane delusions, but there is no single dedicated leading case.  Perhaps the best way to grasp this principle is by starting with the classic statement from Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 on testamentary capacity:

"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects;  shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties;  that no insane delusion shall influence his will on disposing of his property, and bring about a disposal of it which would not have been made otherwise."

An excellent recent examination of various statements of the principle is found in Royal Trust Corporation  of Canada v.  Saunders (2006), 2006 CanLII 19424 (On. S.C.), while Banton v. Banton (1998), 1998 CanLII 14926 (ON S.C.) provides a precise, thoughtful application of the principle. 

My favourite case of a will invalidated by the testator's insane delusions occured in Great Britain in 2007.  The disinherited son of Branislav Kostic successfully challenged Mr. Kostic's will, which gave 8.3 million pounds to the Conservative Party.  Mr. Kostic had become a believer that the redoubtable Prime Minister Thatcher would "save the world from satanic monsters and freaks".  Mr. Kostic had apparently written to Ms. Thatcher, appealing to her that she was the only person who could save the world from bestial creatures.  Mr. Kostic also believed the female members of his family were out to do him in (poison), among other things.    

Enjoy the week,

Chris Graham

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It can be easy to tell your children what to do ... when they're still young.  Its not quite so easy as they grow up and leave the nest - both from a practical and legal perspective.  Have you thought about whether your university-aged child is fully prepared in the event of a medical emergency?  Can you, as a parent, get access to medical information on behalf of your child who is over the age of majority?  This concern, particularly in the context of mounting fears over the spread of the swine flu (H1N1) virus, was considered recently here, and is worth some discussion in the context of our own provincial laws.

In Ontario, once a child has reached the age of majority (18 years), they have the full legal privileges and responsibilities of an adult in most matters.  This means that parents cease to have legal authority over their child's financial decisions, despite the fact that the child may still be dependent on them in some respects (i.e. attending college or university).  With respect to medical matters, while Ontario's Health Care Consent Act provides that a person who is capable and has attained the age of 16 years has the capacity to give advance instructions, there is no specific age for consent.  Any child is presumed to have capacity to give or refuse consent.  

In Ontario, we have several related estate planning documents to consider in these circumstances.  First, the Continuing Power of Attorney for Property is a written authorization given by someone (the grantor) to a person (the attorney or attorneys) who is entitled to do anything on the grantor's behalf in respect of property that the grantor could do if he or she were capable, except make a will.   The Power of Attorney for Personal Care is a written authorization given by the grantor to an attorney who will make personal care decisions regarding health care treatment, if he or she is unable to do so. 

So, although you may not be able to sway your adult children either way on the issue of whether or not to vaccinate, it would be wise to ask them to consider signing powers of attorney, so that parents are authorized to make medical and financial decisions on their behalf in the event of an emergency.     

Sarah Hyndman Fitzpatrick

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Mark your calendars now for the upcoming 12th Annual Estates & Trusts Summit, scheduled for November 12th and 13th, 2009 in Toronto.  This program, organized by the Law Society of Upper Canada, has been described as "vital for anyone carrying on an estates practice".

Spanning two days, the program is structured as follows - "Day One" deals with issues surrounding estate planning in recessionary times; and "Day Two" considers the impact of the current economic climate on estate litigation.  Specific topics include (note that the list is not exhaustive and is subject to amendment):    

• Estate Planning in Recessionary Times
• US/Canada Cross-Border Planning
• Essential Charity Law Update
• Creating Insurance Trusts to Minimize Probate Tax on Life Insurance
• The Exercise of Trustee Discretion
• Constructive Trusts and Quantum Meruit
• Standard of Care and Will Drafting
• Duelling Powers of Attorney
• Latest Costs Issues
• Representing the Incapable Person
• Estate Trustees During Litigation (ETDL’s) –Alternatives to Corporate Trustees

So, if you plan on attending or viewing the live webcast from your home or office, register now here.  Hardcopy materials for anyone interested will also be available for sale after the conclusion of the program.

Sarah Hyndman Fitzpatrick

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A little knowledge goes a long way.  In the context of insurance policies and your overall estate plan, understanding the nuances of a testamentary insurance trust can provide enormous benefits down the road.  Simply taking out insurance on your life - or even naming a specific beneficiary other than your "estate", does not by itself capitalize on the various benefits that may be available by the creation of  testamentary insurance trust.  Proper use of an insurance trust can ensure that the proceeds do not form part of the residue of your estate, but may still be dealt with in a way that is consistent with your overall testamentary objectives. 

This issue is front and center for experienced estate planners, and as such has been dealt with in various contexts on our blog here and here. 

Tim Cestnick, writing for tax matters in a recent article for the Globe and Mail, reminds us of the benefits of creating a separate testamentary insurance trust with life insurance proceeds.  The article, entitled "Your Heirs Will Thank You", highlights six benefits to the insurance trust:

1. Managing distributions to minors;
2. Protecting insurance proceeds from creditors;
3. Tax savings for beneficiaries;
4. Avoiding probate fees on insurance proceeds;
5. Privacy can be attained; and
6. Preserving provincial disability benefits.

One further caveat.  Although not binding in Ontario, a recent Saskatchewan case (Re Carlisle Estate) has created some trepidation for estate planners on the issue of using an insurance declaration in your Will, as opposed to outside of your Will (i.e. by means of a separate declaration).  Until there is some indication as to how this will impact the law in Ontario, make your intent clear by ensuring that the proceeds do not vest in your executor as beneficiary, but are rather held by the executor in trust for the designated beneficiaries.

Sarah Hyndman Fitzpatrick

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Last week, Mr. Justice Brown released an Endorsement involving an Application for Confirming of Resealing of Appointment, in which he directed the Estates Registrar to offer to Applicants for Certificates of Appointment the option of communicating with the Estates Office by e-mail.

Lawyers with experience in obtaining Certificates of Appointment of Estate Trustee (and other related probate documents) are familiar with the standard form corrections notice issued by the Toronto Region Estates Office, and the inherent delays that may result from dealing with such correction notices.  Refer to our firm blog (by Natalia Angelini) and podcast (by David Smith and me) for further information on this issue.  The practice to date has been for the Toronto Estates Office to send a standard form corrections notice to the Applicant which identifies the deficiencies in the filed materials.  Frequently there arises a back-and-forth between the Applicant and the Estates Court via regular mail while the Applications are rectified and processed. 

The issue before the Court on this matter was whether the Toronto Region Estates Office could communicate by e-mail with Applicants for Certificate of Appointments to inform them of their corrections, and to receive corrections from them.  As Mr. Justice Brown remarked in his Endorsement, the Court is relying on "snail mail" to conduct its business in 2009.  He suggested that real access to justice requires the provision of a variety of ways to communicate, and; "more fundamentally, the time has come to recognize the stark reality that our court ...  lags unacceptably behind in the use of electronic communication with our court users".  The Court concluded that it could not find anything in the Rules of Civil Procedure prohibiting reliance on electronic communications, and therefore on a "go forward" basis the Court should offer every Applicant the option of communicating by e-mail with the Toronto Region Estates Office in respect of corrections to deficiencies in the Application. 

The Rules of Civil Procedure should be interpreted to secure the "most expeditious" determination of every civil proceeding (Rule 1.04(1)).  This welcome and progressive initiative should go a long way towards realizing that objective.

Sarah Hyndman Fitzpatrick

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An Italian Prince and Princess are squabbling over their late mother's inheritance, which includes an extensive art collection with works by Caravaggio and Raphael, and a palace in Rome.  The sister (Princess Gesine) has asked an Italian Court to exclude her brother's (Prince Jonathan) children as heirs because his children were conceived with surrogate mothers and she does not "approve" of his homosexual lifestyle.  The Irish Independent has reported on the story and has indicated that under Italian law, the surrogate children "are not recognized and have no legal rights on the family fortune".  Read more about the story here. Notably, the Prince and Princess themselves don't have royal blood but were rather "plucked from obscurity" and adopted from a British orphanage by their Italian Princess mother.

In Canada, adoption is a matter of provincial jurisdiction and according to s. 158(2) of the (Ontario) Child and Family Services Act once an adoption order is made, the child becomes the child of the adoptive parent, and ceases to be a child of the person who was his or her parent before the adoption order was made.

Wills in Ontario frequently provide clauses excluding children born outside of marriage, as both persons born inside and outside of marriage are entitled to share equally in an estate (s. 1 of the Succession Law Reform Act and s. 1(1) of the Children's Law Reform Act ).  Therefore, it is not uncommon to include a clause excluding illegitimates, if the person making a will has a contrary intention to what is mandated by the existing legislative framework.  Practically, an exclusion of illegitimates clause in your will can also make the life of a trustee a little easier by narrowing the scope of inquiry for members of class gifts that may be illegitimate (which can be costly and time consuming).  However, this kind of clause may have the undesired effect of excluding children born of common law relationships.  Including a further clause, to the effect that an exclusion clause shall not apply where the parents have demonstrated a "settled intention" to treat such person as a "child" of the union, can help to avoid such unintended consequences.

Sarah Hyndman Fitzpatrick

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Litigation lawyers live in fear and sober respect of the limitation period. We all know that missing a statutory limitation period can be the kiss of death. Given the right circumstances, however, there is one light in the dark that can overcome the shadow of both statutory limitations and common law laches arguments.

Fraudulent concealment is a common law doctrine that operates in equity to defeat  limitations defences where:

1)      The defendant and plaintiff are engaged in a special relationship with one another;

2)      Given the special or confidential nature of their relationship, the defendant's conduct amounts to an unconscionable thing for the one to do towards the other; and

3)      The defendant conceals the plaintiff's right of action, either actively, or as a result of the manner in which the act that gave rise to the right of action is performed.

Fraudulent concealment is not a rule of construction like the discoverability rule. It is an equitable principle that prevents a limitation period from operating “as an instrument of injustice”. It is aimed at preventing unscrupulous defendants who stand in a special relationship with the injured party from using a limitation provision as an instrument of fraud. See Giroux Estate v. Trillium Health Centre, 2005 CanLII 1488 (ON C.A.)

The fraudulent concealment necessary to postpone a limitation period need not amount to deceit or common law fraud. It is sufficient if the conduct, having regard to some special relationship between the parties, is an unconscionable thing for the one to do towards the other. See Guerin v. The Queen, [1984] 2 S.C.R. 335

For more information on limitation periods and an excellent in-depth analysis of the effect of the Limitations Act, 2002, see Anne Werker, “ Limitation Periods in Ontario and Claims by Beneficiaries” (2008) 34:1 The Advocates Quarterly, 1.

 

Perhaps now would be a good time to take a minute to check on a few limitation periods - just in case!

Sharon Davis

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Whether it's technology or tv trends, Japan seems to be light years ahead.  And we play catch-up (ok, not so with the stupid game shows).  Japan's median age is 43.5, Canada's is 39.1.  But since Japanese live longer (life expectancy of 82.12 versus Canada's [still respectable] 81.23), we're really only a few years behind.  So what can we learn from their population, which is a few years ahead of ours in dealing with an aging population?

The answer is: forget about cars, dvd players and even robots.  Funerals are very, very big business in Japan.  According to this Bloomberg article, the Japanese funeral industry is worth US$18 billion.   Last year, 1.14 million Japanese died, and funeral companies charge about $26,094.62 per funeral.  By 2040, 1.66 million will be dying every year.  Future growth is in death, and as Bloomberg notes, "everyone from railway companies to retailers wants a slice."   Funeral companies are stampeding towards Japan.

Unfortunately, things won't be so rosy in Canada.  This is because Japanese funerals are mostly Bhuddist funerals, which are elaborate multi-day events involving chanting monks, flowers, meals, cremation ceremonies, jade urns and the like.  They are elaborate, exhausting events.  Our funerals are fast-forwarded commercial breaks by comparison.  But it is still a glimpse into the future.

Have a great weekend,

Chris Graham

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The concept of reviving a revoked will seems clear enough.  But what is the difference between a revival and a republication, and why does it matter? 

Revival means reactivating a revoked will.  Note that section 19(1) of Ontario's Succession Law Reform Act requires a revival to be in accordance with the provisions of Part I of the Act.  So an oral declaration that a revoked will is valid does not suffice.  A destroyed will cannot be revived, unless the reviving instrument contains a copy or the terms.  On the other hand, at Common Law, a codicil referencing an existing will "republishes" that will, furnishing evidence of the testator's considering his will as then existing.  And because the Wills Act, 1837 did not abolish the doctrine of republication, the principle still operates.  Both revived and republished wills are deemed executed on the revival or republication date. 

An attempt to revive a will that was never actually revoked may have the result of republishing that will at the time of the attempted revival.  However, attempting to republish a revoked will not revive a revoked will, unless the acts of republication also satisfy the requirements of a revival (which include the form requirements of the Succession Law Reform Act.  Specific uses of the doctrine of republication are discussed in detail in Macdonell, Sheard and Hull on Probate Practice, 4th ed., Rodney Hull, Q.C. and Ian M. Hull (Carswell: Toronto, 1996), pp. 116-119. 

Have a good day,

Chris Graham

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Rule 45 of Ontario's Rules of Civil Procedure contains mechanisms by which a party can freeze assets that are in issue or relevant to the proceeding.  However, this should be done prior to the close of pleadings because once the matter is set down for trial, Rule 48.04(1) applies.  Rule 48.04(1) requires that any motion brought after the close of pleadings have leave of the court.  Leave will only be available where there has been a substantial or unexpected change in circumstances.

A recent example of Rule 48.04(1) barring a motion for interim preservation occured in Trapukowitcz Estate v. Royal Bank of Canada.  In this case, an estate trustee was seeking an order that the proceeds of a GIC and a bank account be paid into court pending determination of ownership.  Justice Harris refused to grant leave to bring the motion because, on the basis of the admissible evidence, the estate trustee had not shown a substantial or unexpected change in circumstances. 

Justice Harris followed Machado v. Pratt & Whitney Canada Inc. (1993), 16 O.R. (3d) 250, which requires strong affidavit evidence to demonstrate a "substantial and unexpected change in circumstances to the extent that to refuse the order would be manifestly unjust".  The grounds in the moving estate trustee's affidavit were unconvincing. 

As importantly, viva voce evidence given in submissions was not considered.  To do so would be unfair to the respondent, particularly since the evidence had been available since June 4, 2009 and the hearing took place in August 6, 2009.  Therefore, Justice Harris cited Rule 37.06(b), which stipulates that every notice of motion must state the grounds to be argued, and refused to consider the viva voce evidence. 

There is no requirement under Rule 45 to prove the assets are actually at risk, so a R. 45 freezing order is easier to get before the close of pleadings.

Enjoy your day,

Chris Graham

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Settlement privilege excludes communications made in furtherance of settlement from the record.  Settlement is a fundamental component of our trial system for trite reasons.  Virtually every litigation proceeding has a parallel settlement component that the court does not and usually ought not to see, until after the main proceeding. 

In Re Hallman Estate, the applicant had filed an affidavit including a letter that was a settlement offer from respondent trustees.  The letter was marked "Without Prejudice".  The trustees brought a motion to expunge that part of the affidavit.  The applicant asserted that the trustees had impliedly waived settlement privilege by relying on the letter in exercising their discetion when, at a trustees' meeting, they had discussed the letter then refused to pay trust income to the applicant, and later disclosed the minutes of the meeting to the applicant.  Also, the trustees sent a letter to the applicant's counsel noting that the letter had been discussed and offering to provide redacted minutes.  The issue was whether this constituted implied waiver.

No waiver was found.  Settlement privilege can be waived expressly or by implication.  A clear intention is not always necessary.  The privilege can be waived by conduct (waiver by implication), even in the absence of intention, and one situation where this occurs is where fairness requires it (for instance, taking a position inconsistent with the maintenance of privilege).   

But here, it was the applicant asserting the waiver who first filed the Minutes referencing the letter, not the trustees relying on the privilege.  Second, the communication to the applicant's lawyer of the reliance on the letter constituted confirmation of non-waiver, not the opposite.  Finally, there was no evidence the trustees actually did rely on the letter to exercise their discretion as trustees, only that they had discussed the applicant's lack of reply to the letter during the meeting.  On this final point, the decision does not unequivocably state that such reliance would have been sufficient.        

The onus for proving waiver of the privilege rests with the party asserting the waiver, but that should not prevent litigants from fastidiously maintaining the privilege (as the trustees did in this case).

Have a great week,

Chris Graham

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Off with the cufflinks. Roll up your sleeves. Grab your joystick and get ready for what may be the ultimate way for the estates and trusts practitioner to spend their lunch hour: Nintendo DS Safecracker.

                                                  

As an expert safecracker, you have been hired by the wealthy family of a recently deceased billionaire in order to search for the Last Will and Testament of their late relative, oil tycoon Duncan W. Adams. Adams, both an avid safe collector and an eccentric recluse, has hidden the deed to his riches in one of the 35 safes scattered in his lavish 40-room, 3-storey mansion.

Of course, what last testament tale wouldn’t include a nod to the complexities of family dynamics? In addition to his Last Will, Adams has strewn around the mansion various snippets of information about himself and his descendants: letters, notes, postcards and even a diary, all of which allude to the inner workings of the family. 

Game on!

Jennifer Hartman, Guest Blogger

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Hugh Lawford, co-founder of Quicklaw - the world's first online legal database - recently passed away.  

As noted in Mr. Lawford’s obituary, he created the project at Queen's University in 1967 when he realized that legal documents could be computerized and made available in a database. This insight led to his creation of QUICKLAW Inc. together with Professor Richard von Briesen in 1973.

Mr. Lawford spent virtually the next thirty years dividing his time between teaching law at Queen's University and building QUICKLAW into a household name in the legal community. It was a system that without a doubt revolutionized the practice of law, putting an end to long days of cumbersome legal research.  

In 2002, QUICKLAW was sold to LexisNexis. By that time, it had over 200 employees in a dozen offices in North America.

Some of Mr. Lawford’s other noteworthy achievements are:

·                    He was chosen as Rhodes Scholar for Alberta in 1955.

·                    He obtained his Bachelor of Civil Law degree from Oxford University.

·                    Returning to Canada, he joined the new Law Faculty at Queen's University in Kingston, Ontario, and became Queen's youngest Associate Professor, teaching International and Administrative Law; and

·                    He was Special Assistant for a time, first to the President of the Privy Council and then to the Prime Minister.

An interesting article on his life can be found in the Globe and Mail.

Have a great day,

Natalia

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Having recently posted a blog on bad neighbours, you can well imagine my shock when I rounded the corner this week and saw what appeared to be an OPP paddywagon parked in front of a house on a fairly white bread, middle class street in Nothing-Ever-Happens-Here-ville, Ontario. A white box van with blue and red stripes – you know the one. As I slowly passed the van, admittedly hoping to glean some fodder for juicy neighbourhood gossip, nothing prepared me for the words ‘CRIME SCENE CLEANERS’ on the side of the vehicle.

Crime & Trauma Scene Cleaners Inc., a division of Biohazard Canada, and a licensed member of the Canadian Association of Decontamination Specialists, operates in Ontario, Quebec, Manitoba, Saskatchewan, Alberta and B.C. Their website states that they are ‘committed to helping people when tragedy strikes’ and that their objective is ‘to restore safety to an environment in the most professional and discrete manner possible. This relieves family members or employees of the emotional and traumatic task of cleaning up after a suicide, homicide, decomposition, accidental death, etc.’ For those of you reading this blog on your lunch hour, feel free to defer your perusal of the graphic photo gallery of various before and after crime scenes. Very Dexter, indeed.

The company, and their 34-year old president, Christian Cadieux, who has occasionally been referred to as ‘Death’s Janitor’, are getting wide and witty press coverage:

· “And You Thought Your Job Stunk” – Toronto Sun
· “Out, Damn Spot” – Eye Weekly
· “Behold, The Grim Sweeper” - Toronto Star

Cost? In an interview with George Stromboulopoulos on The Hour, Mr. Cadieux mused that the cleanup of the accidental backseat head shot in Pulp Fiction would set one back about $4,000 to $5,000. Although I’m still trying to figure out how you would explain this kind of expense to your insurer….

Jennifer Hartman, Guest Blogger

 

 

 

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The Toronto International Film Festival brought stars to town and brought an estate issue into focus. The Art of the Steal  received accolades as a “thrilling whodunit” about the world-renowned Barnes art collection, valued in the “billions and billions.” Dr. Albert Barnes assembled art in the twenties and housed it in the suburb of Merion, Pennsylvania.

On his death in 1951, Dr. Barnes’ will gave control of the collection to the trustees of Lincoln University, the first black university in the United States. However, according to the film’s producer, in the nineties, a scheme was hatched to permanently remove the collection from Merion that some would later call the heist of the century.

The trustees’ decision to move the exhibit to downtown Philadelphia was met with legal challenges that did not succeed.  On a site called The Barnes Letters  it seems interest groups used the courts to deviate from Dr. Barnes’ express wishes to focus on “an educational organization designed to promulgate a unique way of teaching art appreciation.”

At an opening ceremony for the new site, protestors marked the occasion with signs advocating that Barnes’ “…Will Should Be Honoured.”

Art disputes relating to trusts and foundations are not uncommon. Here in Canada, one example involves a long-standing legal dispute between the U.K. Beaverbrook Foundation which claims that it only loaned art to a New Brunswick gallery – art that originally belonged to New Brunswick newspaper baron Max Aitken.  (See Paul Trudelle's September 14, 2009 blog).

These examples point to the idea that a testator’s expressed wishes for certain assets may not always be respected. Dr. Barnes wanted his art to stay put, while it was alleged that Lord Beaverbrook’s art was gifted to the people of New Brunswick.

Have a good Monday.

Jonathan Morse

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I conclude my blog week by writing about the late Michael Jackson who was finally laid to rest on September 3, 2009. Ten long weeks after his death, Michael Jackson’s coffin was placed in a mausoleum in the Forest Lawn Memorial Park, which is located outside of Los Angeles.

If reports are to be believed, his body has been placed in the Holly Terrace, which is a large hall at the centre of Forest Lawn's monolithic grounds. Although the fascination of Michael Jackson will continue long after his death, the mausoleum is policed by private guards and is rumoured to be among the highest security resting places in the world.

There have been reports indicating that the price of grave-plots close to Michael Jackson's tomb have gone up $2,000 - $3,000 in value since Michael Jackson joined the neighbourhood.

Some reports have indicated that some private parties have asked for substantially more, with one person rumoured to have asked for $34,000 for a double unit inside of the Michael Jackson mausoleum. Even after death, Michael is still making headlines, this time in the cemetery world.

Thank you for reading and I hope you have an enjoyable weekend!

Rick Bickhram

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Planning your estate feels a lot like preparing for your taxes. It takes time and it’s something the average person hates to turn their mind to. Nevertheless, a solid estate plan is, without a doubt, the best defence against the potential threats to hard earned wealth posed by disgruntled family members or tax authorities.

Recently, I read an article written by Hyman Darling, an Attorney in the State of Massachusetts, in regards to the top 10 issues regarding wills. Mr. Darling states that the top 10 issues that are frequently being considered by the average person are:

1.                  Should I have a Will?

2.                  What kind of Will should I have?

3.                  How does a Will work when I die?

4.                  What if I have a Will but am not satisfied with it?

5.                  Do both spouses need Wills?

6.                  Is it possible to set up a Trust under my Will?

7.                  How can I include a charity in my Will?

8.                  How can a charitable bequest benefit me?

9.                  How much does a Will cost?

10.              How do I go about getting an attorney?

Mr. Darling does an exceptional job at considering each issue and I certainly recommend that everyone considering an estate plan review his article.

Thank you for reading,

Rick Bickhram

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It should come as no surprise that we live in an aging society. As our society continues to grow old, family members should be concerned about their loved ones who live with disabilities.  

I recently read an article (found here) that describes the obstacles that our law enforcement and emergency professionals are confronted with when responding to an emergency involving a disabled or elderly person.

The article describes stories where law enforcement and emergency professionals were not aware or misunderstood the unique limitations of people with disabilities and were unable to offer the best assistance during their need for help. For instance, the article describes “a California man who, while waiting for his bus home from work, was beaten by officers who mistook his folded white cane for a martial arts weapon and a Florida man dumped from his wheelchair by a deputy who didn't believe he was paralyzed.”

The focus of this article should be for family members to be prepared for emergencies. Some helpful tips to becoming prepared are:

1. Instructing family members with disabilities to contact family members right after emergency professionals;

2. Keeping relevant health records in an easily accessible location and instructing family members to give the materials to emergency professionals; and

3. Enlisting your neighbours and nearby friends to offer assistance in emergency situations.

There is no full-proof method of preventing some of the tragedies that the article describes but our family members are the most important people in our lives and we can protect them from traumatic and life-threatening events through careful planning.    

Thank you for reading.

Rick Bickhram

 

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After a long and relaxing weekend, most of us now return to work geared to face the challenges of our week.  I start my blog by discussing the recent issue of the Probater.

The Probater is a quarterly newsletter that is prepared by the lawyers at Hull & Hull LLP and is provided to the community as an information service.  Our most recent newsletter was released in September 2009.  In the September 2009 issue, Jonathan Morse writes about the fundamental principles behind Rules 74 and 75 of The Rules of Civil Procedure, but more particularly focuses his article on the purpose behind Rule 74.15.

Rule 74.15 allows “any person who appears to have a financial interest in an estate” to obtain orders that would assist them in administering an estate. There is an abundance of case law that defines financial interest and clarifies the threshold question as to who may have a financial interest in an estate.

In his article, Jonathan does a good job in explaining the application of such orders and concludes by referring to a recent decision of the Honourable Justice Brown in Barletta v. Donne, which highlights the recent application of Rule 74.15. 

Thank you for reading,

 

Rick Bickhram

 

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Palliative care is a specialized kind of health care for people living with life-threatening illness, usually in the advanced stages. The foremost goal of palliative care is to achieve the highest quality of life (for the patient and their family) in its end stages. This comfort care is multidisciplinary, should be highly individualized, and ideally incorporates best practices in the following aspects of end-of-life care:

· Pain management: Commonly viewed as the single most important aspect of palliative care, it is also one of the most challenging. The majority of palliative analgesic drugs have sedating effects that can undesirably impact the patient’s lucidity and mental functioning. However, when terminally ill and conscious patients are experiencing intolerable symptoms that are not relieved with expert palliative care, then implementation of palliative sedation, with the intent of inducing unconsciousness, can be considered with the patient’s (or substitute decision maker’s) consent.

· Symptom management: Distressing symptoms other than pain that are aggressively managed include gastrointestinal symptoms, respiratory symptoms, insomnia, confusion and agitation.

· Psychosocial support: An effective palliative care model places paramount importance on the respect of the patient as an individual; one who deserves support, sensitivity, compassion, the preservation of their integrity and dignity, together with consideration of their spiritual and cultural values.

· Caregiver support: Palliative care, if it is to be approached holistically, includes the patient’s support network. Mirroring the patient, friends and family may also be experiencing a loss of control, fear, anger and anxiety, all of which can be exacerbated if they have been, or continue to be, actively involved in a caregiving role.

The patient best defines the quality of their own life and should therefore actively participate in directing the course of their care.

Jennifer Hartman, Guest Blogger
 

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Walter Cronkite’s last will and testament has been revealed – and he left his girlfriend out in the cold. 

Cronkite, the legendary newsman perhaps best known for anchoring the CBS Evening News for almost 20 years, dated Joanna Simon, sister to singer Carly Simon, for the four years prior to his death.  However, it appears that he did not provide for her in his will. 

Instead, he divided his estate amongst his children and some former colleagues from CBS.  His alma mater, the University of Texas, is to receive certain personal effects relating to his broadcast career (incidentally, U of T has a nice video tribute to him on its website). 

Cronkite’s reason for not leaving his girlfriend anything was apparently because he had provided for her well in his lifetime.  In addition, a motivating factor appeared to be that he did not want to share his estate with his girlfriend out of respect for his deceased wife. 

No word on whether Cronkite’s girlfriend intends to advance any claims against his estate.  His  will was filed with the surrogate court in Manhattan and any claim she had would be governed by the relevant law in that jurisdiction. 

Had Cronkite died resident in Ontario, his girlfriend could potentially have sought dependant support under the Succession Law Reform Act.  Part V of the SLRA provides that if a deceased does not in his will provide sufficient support for a dependant (which includes a common law spouse) who is in need of and entitled to support then that dependant is entitled to dependant’s relief. 

Have a great day,

Megan F. Connolly  

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Traumatic Brain Injury (TBI) is defined as sudden damage to the brain, occurring after birth, as a result of an external force (e.g. crash, assault, fall). The effects of TBI are determined by the location and severity of the injury, as well as the age and general health of the individual. Thus, TBI results in a very broad spectrum of disabilities, and may include problems with cognition, communication, sensory processing, behaviour and mental health. Severe TBI can result in a long-term unresponsive state such as coma. [Note: ‘Acquired Brain Injury’ is the larger, umbrella term which includes not only TBI, but also brain injury caused by a non-traumatic event such as a stroke or an aneurysm].

TBI statistics are staggering:

· 11,000 people die each year in Canada as a result of a Traumatic Brain Injury (over 4,000 in Ontario alone). Annually, another 6,000 Canadians will become permanently disabled after a TBI.
· Most TBIs in Canada are caused by motor vehicle crashes, sports related injuries, falls and bike accidents. In the United States, firearms rank as the second-leading cause of TBI.
· The age group with the highest rates of TBI are the 15-24 year olds. TBI risk also spikes after the age of 65. TBI is the leading cause of disability among children and is the third most common injury leading to hospitalization in older adults.
· TBI affects men at twice the rate of females. Men are also more likely to suffer severe injuries, and thus incur a higher mortality rate.

TBI prevention has evolved tremendously over the years to address issues such as seatbelt use, driving under the influence, helmet use, pedestrian safety, shaken baby syndrome and elderly falls prevention.
 

Jennifer Hartman, Guest Blogger

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David M. Sherman's Basic Tax and GST Guide for Lawyers 2008-2009 (Toronto: Carswell, 2008) is a helpful resource for lawyers not specializing in tax law.  The section on Wills and Estates (chapter 7) is concise, easy to follow, and the annotations are precise.  The style is rule-driven and not overly burdened with qualifications (these appear in the Preface); it is not cluttered with lengthy paragraphs or run-on sentences. 

One criterion I use to rate general texts is how helpful or interesting they are to me in areas outside my field.  This book scores well on that basis.   See, for instance, the section on deductibility of legal fees or health club memberships. 

This text is highly recommended.

And my Friday blogs are always short for you.

Enjoy the weekend,

Chris Graham

 

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Q:  How is a will actually revoked, other than by marriage or making a new will?

A:   See section 15 of Ontario's Succession Law Reform Act ("SLRA"), which enumerates revocation events (marriage depending on the will, making a new will, a proper written revocation, and destruction of the will).  See also the later provisions in the SLRA, especially ss. 16-19.

Revocation by destruction (s. 15(d) of the SLRA) is perhaps the most legally interesting revocation technique.  To revoke by destruction, the testator must have the intention to revoke the will (animo revocandi), and perform an act of destruction qualifying under section 15(d).  Both requirements must be present: acts without intent are not sufficient, nor are intentions without action (Cheese v. Lovejoy (1877), 2 P.D. 251 at 253).  The testator must not be of unsound mind (which extends to scenarios other than just general lack of testamentary capacity, so for instance, a very drunk testator might not have requisite capacity to revoke the will). 

How is the act requirement met?  What amounts to a "burning, tearing or otherwise destroying" of the will?  The caselaw is rich in unique fact scenarios on this issue, but clearly the entire will need not be comprehensively annihilated.  For instance, in Hobbs v. Knight (1838), 1 Curt 768 at 780-781, a signature that was obliterated so that it could no longer be read would amount to a revocation of the will, because the signature is an essential part of the will.   

The caselaw, much of which predates section 15 and the related sections in the SLRA (and the entire SLRA), is still very much relevant.  For a detailed discussion of revocation of wills in light of the SLRA, see Chapter 4 of  MacDonell, Sheard and Hull on Probate Practice, 4th ed. (Carswell: Toronto, 1996), edited by Ian Hull and Rodney Hull.

Have a great day,

Chris Graham

 

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