On the one hand, although few religions ban autopsies, some religions place a strong emphasis on the inviolability of the human body and view anything more than cleaning the body after death as disrespectful.  On the other hand, autopsies also provide a benefit to society, such as improving medical technology. 

Is the ethical reason that it is acceptable to perform an autopsy on a mummy that the mummy has no family members who can grant consent?  However, in Pennsylvania, a coroner was put on trial in 2008 for performing autopsies on unclaimed bodies from the county morgue when there were no family members who could grant consent. 

Or perhaps a mummy is simply too old to have privacy rights.  However, the Royal Commission on Aboriginal Peoples reported, "A final threat to the integrity of sacred and historical sites comes not from development or legislation but rather from archaeological endeavours.  The search for historically and culturally significant objects often leads archaeologists to burial grounds.  Aboriginal people have asked that these objects be left in the ground and that graves not be disturbed out of respect for the dead and in recognition that the burial grounds remain the collective property of Aboriginal people." 

Where should the balance be struck between the pursuit of research and respecting the wishes and integrity of a person after death? 

Parents, inherently, try to help their children.   Initially the help your kids need is easy to determine; food and sleep, being the obvious requirements. As they get older, their needs change. It starts with something simple like homework, generally progresses to how to deal with the high-school break up, maybe eventually getting into the existential “What should I do with my life? What should I be?” Clearly, I’m over-simplifying. This slight hyperbole is still likely to resonate with most people, especially parents. Helping your kids is a natural inclination.   Yet when a mother (a lawyer), accepted service of materials on her son’s behalf in a recent family law matter before the Ontario Superior Court, it spurred enough debate to come up on appeal and to be addressed in a recent article in Law Times. 

The matter that brought this issue before the court seems to be a fairly standard family law matter. Yet, as noted, a mother agreed to accept service of materials on her son’s behalf. An interlocutory order was made, ex parte, indicating that it would not be appropriate for the mother to act as counsel, as it may be prejudicial to a determination on the matter. The judge also provided a direction that counsel should consult with the Law Society to establish an ethical basis for representation. It should be noted that the relief granted was not sought by the wife in this matter, but was a conclusion reached by the Judge on the evidence included in the motion seeking substituted service.  The Order was brought before the Superior Court of Justice seeking leave to appeal and leave was so granted.  A copy of Justice Boswell’s decision on this issue can be found here.

The Court’s review of lawyers obligations under Rule 2.04 in the Rules of Professional Conduct and the accompanying summary, are given thorough consideration by Justice Boswell on the motion for leave to appeal. The findings in this matter seem limited to the issue of whether a family member can act as legal representation in family court. Yet, the issue could be drawn across many legal fields, in particular Estate litigation, where families and emotions play very prominent roles. The Court’s conclusion, that a case by case analysis is required where such severe restriction on a party’s choice of counsel is considered, seems in line with the fundamental principles of ethics we all learn when preparing for the bar exam. Still, I doubt that this is the last time I’ll see this issue appear before the Courts.

Food for thought,

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

“Assisted suicide, outlawed under the common law, has been prohibited by Parliament since the adoption of Canada's first Criminal Code.  The long‑standing blanket prohibition in s. 241(b), which fulfils the government's objective of protecting the vulnerable, is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken.  This state policy is part of our fundamental conception of the sanctity of life.  ...  No consensus can be found in favour of the decriminalization of assisted suicide.  To the extent that there is a consensus, it is that human life must be respected.  This consensus finds legal expression in our legal system which prohibits capital punishment.  The prohibition against assisted suicide serves a similar purpose.  Parliament's repeal of the offence of attempted suicide from the Criminal Code was not a recognition that suicide was to be accepted within Canadian society.  Rather, this action merely reflected the recognition that the criminal law was an ineffectual and inappropriate tool for dealing with suicide attempts.  Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or unfair.  The prohibition relates to the state's interest in protecting the vulnerable and is reflective of fundamental values at play in our society.  Section 241(b) therefore does not infringe s. 7 of the Charter.”

Notwithstanding this decision of Canada’s highest court almost 20 years ago, the Canadian Lawyer (October 2011 issue) notes that the issue is coming before the Supreme Court of British Columbia on November 15, 2011 in the case concerning the family of Kay Carter. Her family accompanied her to Switzerland, where she died by assisted suicide at the Dignitas suicide centre. The issues to be decided in the case appear to be whether Carter’s rights were violated by a law that prevented her from dying by euthanasia or assisted suicide in Canada, and whether Carter’s daughter and her husband broke the law by aiding her in planning for and going to the Dignitas suicide centre. Constitutional and conflict of law issues will likely both be at play at the hearing. 

The decision will be something to watch out for.

Thanks for reading,

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

This is according to an article posted on the Toronto Star’s “Health Zone”. The article by Barbara Turnbull entitled “Religious leaders confront myths that stop faithful from donating organs” notes that in the GTA, just 12% of the population has registered as organ donors.  This may be a factor of the GTA’s rich diversity of culture.

The prevailing belief among many religious groups is that preservation of the integrity of the body is required upon death. However, no religion prohibits organ donation, and many religious leaders from various faiths are working to change the prevailing public opinion.

The article quotes Jewish, Muslim and Hindu religious leaders: all of whom support organ donation. However, they note that much work must be done in order to overcome prevailing attitudes. “We have to change it so that it’s not only okay to do it, it’s not okay not to do it”, says Rabbi Reuven Bulka.

The article reports that 1,547 people are awaiting organ transplants in Ontario, and every three days, someone dies while waiting for a transplant. Hopefully, these numbers will change for the better.

Have a great Thanksgiving weekend. And please sign your organ donation card.

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

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

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

BeADonor.ca.

Jennifer Hartman, guest blogger

A Toronto woman has launched a lawsuit challenging B.C.’s Adoption Act arguing that she has a right to full knowledge of her history.   Ms. Prattan was conceived with the assistance of a sperm-donor, who chose to remain anonymous. Ms. Prattan clearly takes the position that she is entitled to information relating to her biological father. The matter has been heard and Justice Elaine Adair is expected to render her decision soon.

A recent article in the National Post outlines a significant number of arguments, on both sides of this fight. The long term impact of whether a child will have access to information which was given without the intention that it would ever be shared is still likely too fresh to digest.

Sweden, Norway and the Netherlands have already banned anonymous sperm-donations. With this matter moving its way through the courts, Canada may not be far behind. However, an old adage states ‘with knowledge comes power’, and it certainly holds true, in respect of how this legal issue plays out in the Estate litigation field. 

With sperm-donation being only approximately half a century old, and having dealt with significant legislative changes and requirements throughout its short history, the legal world continues to bounce along and keep up with society and our ever increasing demands. I know that I for one and curious how this matter will turn out, and whether children borne with the assistance of sperm-donation, who may now have access to previously confidential information allowing them to know their parentage, will legally be treated as heirs. 

Stay tuned….

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

• 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

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.

• 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

Listen to Guardianship in Canada

This week on Hull on Estate and Succession Planning, Suzana Popovic-Montag speaks with Rodney Hull about how the law has changed in Canada as it pertains to the appointment of guardians. Rodney suggests that today's laws (post-1994) are clearer than they were in the past.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

Guardianship in Canada - Hull on Estate and Succession Planning - Podcast #142

Posted on December 9, 2008 by Hull & Hull LLP

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag that will provide information and insights into estate planning in Canada. From the offices of Hull & Hull in Toronto, here are Ian and Suzana.

Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening, and some of you may be watching, episode 142 of our podcast on Tuesday, December 9^th, 2008.

Hello there Rodney.

Rodney Hull: Hi Suzana.

Suzana Popovic-Montag: I’m very pleased to have Rodney Hull join me again this week to fill in for Ian Hull. We’re very pleased to have you and thank you for joining us, Rodney.

Rodney Hull: Thank you very much for having me.

Suzana Popovic-Montag: What I thought we might do a little bit today, since we have you sort of here in the hot seat is to get your thoughts, and I know we’ve talked a lot in the past about capacity litigation and this whole grey zone as to whether or not someone is capable or incapable and what happens if they’re no longer capable. And so I thought having you here, we’d have the opportunity to maybe talk a little bit about the change in the law since when you started practicing back in 1957 and we still called it like a committeeship, and how things may have changed since 1994 when the new Substitute Decisions Act came into place.

Rodney Hull: Well in the pre-1994 legislation, the first distinction was that they changed the fiduciary, the name of the fiduciary from a committee to what it is today, which is the…

Suzana Popovic-Montag: Guardian.

Rodney Hull: Guardian. And basically though the function of the guardian is the same today as it was then.  There is a far superior structure created by the new Substitute Decisions Act which gives a great deal more guidance to persons involved in committeeships as we used to call them. Before you simply applied, we did the same thing: we had psychiatrists and one would say this and one would say that, we would have doctors, we would have bankers, we would have investment people saying whatever their opinion was, and a committee was appointed for the person if it could be shown that the person was not capable of managing his or her affairs. Now it’s exactly the same but we have guidelines, much more direct, clear guidelines as to who we use, what we’re doing, we have referees, we have persons who are directed to make decisions as to whether or not there is the capacity to manage your own affairs. That’s clear, they’ve been set out. Before it was by guess and by God. The judge would listen to the evidence and it would be the judge that made the determination. Not a very satisfactory way of doing it, not because the judges weren’t every bit as good then as they are now or had less ability. It’s just that there is a scientific aspect to the appointment of guardians that I think we didn’t realize as much then as we do now, and that it isn’t basically simply a judicial function. It’s a function that involves almost all the aspects that one would put into ordinary daily living concepts.

Suzana Popovic-Montag: Right and you say that comes about because of the clearer definition that’s set out in our statute now.

Rodney Hull: That is correct. Yes, I think so. I think it gives us great guidance. It makes clear what we should be doing and the procedure is far, far more closely defined. Before it was, as I say, by guess and by God. You brought an application to have a committee appointed under the Act and of course the Children’s Lawyer would sometimes be involved, and the Public Guardian and Trustee was involved, as they are today.

Suzana Popovic-Montag: That’s right. And now that’s certainly from the financial perspective. So when we’re appointing someone to manage property, but how would you say, if at all, its changed in terms of having someone appointed for personal care?

Rodney Hull: That, of course, is probably the most difficult aspect to try and deal with.

Suzana Popovic-Montag: Yeah.

Rodney Hull: You know you…there are some people you don’t want to have the ability to pull the plug on you, that’s for certain. And we can all figure out who some of them are. But basically, I think the ones that are nearest and dearest to you are the ones that should have that decision. There is nothing worse, in my mind, than having no direction really, no written direction, but to have a gathering of 6 or 7 people around and there you are with one of these breathing devices in you, you hate it, your arms are tethered, you can’t tear it out, and they’re sitting around the table arguing whether or not it should be pulled out. We want Dad or Mom or Auntie so and so to have every chance to live and come back, even though the doctors say he or she is going to be a vegetable. That’s not good. But to be able to show the directing people that you have the authority to do it I think is very important. Finding that person is where the rubber hits the road.

Suzana Popovic-Montag: It’s so true and, you know, I wonder, from your experience, like I know certainly judges are reluctant these days to make those kinds of decisions, because those are such personal decisions that they don’t necessarily feel qualified in many cases to make that kind of a determination. Was it any different under the prior legislation?

Rodney Hull: Oh I don’t…I think myself that there was no clear authority to do it but the doctors looked after it pretty well.

Suzana Popovic-Montag: That’s true.

Rodney Hull: But everybody has become very conscious of taking on any responsibility that might involve you with bad feelings between people and I think that basically is how it was done. It was just done by guess and by God and sometimes oxygen didn’t get through, that’s all, sorry about that.

Suzana Popovic-Montag: It really seems to underscore, to me anyway, the importance of this planning, of planning during your lifetime, of telling people what it is you want and why it is you want it so that when these tough decisions have to be made, then you know at least you’ve got some guideposts.

Rodney Hull: You really don’t have to be too clear as to what you want. You don’t want to be going through a lifetime of pain and suffering and stuck with one of those things in your head backed up, and the pump going and you’re there, you’re not conscious. You don’t have to be a Rhodes scholar to figure that person doesn’t want to hang around very long.

Suzana Popovic-Montag: That’s for sure.

Rodney Hull: You know.

Suzana Popovic-Montag: So just in terms of some advice, Rodney, what would you say to people who are dealing with individuals who are sort of in this grey zone, where we’re just not sure if they are fully cognizant and capable or maybe they’re on the cusp of no longer having capacity? Any thoughts or any guidance for us in terms of dealing with those kinds of individuals?

Rodney Hull: Well I guess kindness is the only word that really comes on bidden to the lips. It’s a very difficult responsibility to take on; it’s a very difficult responsibility to pass on. So it just has to be guided by common sense and as I say, kindness, probably.

Suzana Popovic-Montag: Yeah. Well thank you very, very much, Rodney. It was a pleasure having the opportunity to podcast with you again, and to seek some of your thoughts and guidance to us, so thank you for joining us.

Rodney Hull: Thank you, Suzana, for having me.

Suzana Popovic-Montag: And just a quick reminder to everyone to feel free to provide us with any comments, any feedback, at hullandhull@gmail.com or feel free to visit our blog at estatelaw.hullandhull.com.

You have been listening to Hull on Estates and Succession Planning by Ian Hull and Suzana Popovic-Montag. The podcast you have been listening to has been provided as an information service. It is a summary of current issues in estates and estate planning. It is not legal advice and you are reminded to always speak with a legal professional regarding your specific circumstance.

To listen to other Hull & Hull podcasts, or to leave any questions or comments, please visit our website at hullestatemediation.com. 

/mem

A great reminder of the need to restrict access to a trust account and exercise vigilance in who can access it. Of course, in the hustle and bustle of practice it is possible for these types of basics to fall to the background as we try to satisfy clients with the outcomes of their cases.

Most lawyers I know operate on the assumption that everything which leaves their office, including trust cheques, is their responsibility. Since not everything in every case can always be reviewed, that implies a certain amount of trust towards assistants, clerks, and other support staff. It also implies that it is very wise to know the people that work for you, and consciously keep up with them from time to time.

Nothing will protect from every rogue of course, but you never know what you might find out by staying on top of things…

Thanks for reading.

Sean Graham

In Eblie v. Yankowski, [2007] M.J. No. 145, the court awarded costs against the solicitor personally where an affidavit contained irrelevant, scandalous, vexatious and frivolous.  It was not enough to simply type what the client wanted to say.  The solicitor was responsible for drafting and presenting the affidavit material, and had caused costs to be incurred without reasonable cause.  In this case, the costs incurred included a motion to expunge the impugned material. 

Further, the court made the interesting comment: "It is difficult to accept that these materials were not prepared and filed for an improper purpose, namely to prejudice the mind of the court against the opposite party. If their inclusion in the affidavit filed by the Petitioner was intended to gain undue advantage and to defeat the course of justice costs against counsel personally are clearly warranted."  

For those interested, section 96 of Manitoba's Court of Queen's Bench Act is nearly identical to section 131 of Ontario's Courts of Justice Act in creating jurisdiction to make discretionary cost awards.   Manitoba's Rule 57.01(1) is similar in all relevant ways to Ontario's Rule 57.01(1), and Manitoba's Rule 57.07 similarly imposes potential personal liabilty on solicitors.

Enjoy your weekend,

Chris Graham

 In 1911, Yale history professor Hiram Bingham III stumbled upon Machu Picchu, 'the lost city of the Incas' (click here for an incredible virtual tour).  For centuries, the treasure trove of ancient Incan art and artifacts had been lost to the Peruvian people.  Backed by Yale and the National Geographic Society, Bingham excavated nearly 5,000 objects over the course of several trips to the sacred site, including statues, jewellery, instruments and human remains.  He then sent the relics to Yale's Peabody Museum in New Haven, Connecticut.

Was their transfer a loan or a gift?

In 2003, when Yale launched a major touring exhibition featuring the artifacts, the Peruvian government commenced negotiations to get them back.  Their argument rested on the existence of a letter discovered in the National Geographic Society archives by Terry Garcia, executive VP of the Society.  The letter, written by Bingham to Yale University, revealed that the artifacts "do not belong to us, but to the Peruvian government, who allowed us to take them out of the country on the condition that they be returned in eighteen months."  The National Geographic Society concluded that the artifacts that had been removed from Machu Picchu were indeed a loan from the Peruvian government, and not a gift.

Artifact ownership is a sticky issue.  Thomas Kline, of George Washington University explained to the National Geographic Channel that if a museum returns ancient artifacts too quickly, they may not be honouring their duty to "preserve and protect objects in the collection".

Yale and the Peruvian government ultimately worked out a compromise of sorts.  Yale agreed to return most of the objects following the completion of the travelling exhibition co-sponsored by the two parties, and has since acknowledged Peru's title to all of the excavated objects.

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

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

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

Have a safe day,

Chris Graham

Posted on April 29^th, 2008 by Hull & Hull LLP

Diane Vieira: Hello and welcome to Hull on Estates. You’re listening to Episode #108 on Tuesday, April 29^th, 2008.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.   Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and Wills.  Now, here are today’s hosts.

Diane Vieira: Hi and welcome to another episode on Hull on Estates, I am Diane Vieira.

Paul Trudelle:  And I’m Paul Trudelle. Hi Diane, how are you today?

Diane Vieira: I’m good, how are you?

Paul Trudelle: Very good, thank you for filling in.  You are filling in for Megan Connelly, who was going to be podcasting with me this week, but she ran off to South America.

Diane Vieira: Yes.

Paul Trudelle: She got out of it.

Diane Vieira: Yes

Paul Trudelle: She didn’t take any trust funds, and she is coming back so there’s nothing  wrong with her going. We hope she has a very good time, and I thank you for joining me today. You have a busy week.  In addition to podcasting, you are also blogging this week.

Diane Vieira: Yes I am. So it is…I will be featured heavily on the website this week.

Paul Trudelle: Yes. Today we thought we would spend some time and talk about a situation that arises in a lot of matters that we see.  It is the type of situation where there is an elderly person with two or three adult children.  The elderly person wants to provide for all of them, however the elderly person is often closer to one of the children.  And prior to death, a property gets transferred to that one child to the exclusion of the other children and they are not able to share in that other property, once the estate falls into place.  And that causes them much concern and leads to a lot of litigation.  So we thought we would talk a little bit about that today.

Diane Vieira: And we are going to discuss a case that you actually wrote a blog on last week, its Bale vs Bale.  And the facts in that case is similar a situation as you just pointed out.  There is a mom who, in her Will, leaves her estate to her three sons equally.  But prior to her death, she conveys her farm to one of the sons.  The son being the child who is taking care of her and the other two sons in the situation were actually not very much part of her life and didn’t provide any care for her and where the applicant’s position was that they were estranged from her.

Paul Trudelle: Right.  There was a bit of an issue is to how close these other children were and that usually is the case and there was evidence heard from both sides as to how close they were.  But I think for the purposes of discussion today, we can just presume that the one child was significantly closer to the mother than the other two.

Diane Vieira: So, just a bit of a background on what happened here was a few years prior to her death, the main asset of the estate was a farm.  And the mother gave the farm to the applicant.  And there was testimony as to the capacity of the mother to make this gift with respect, because the other two sons challenged her…challenged this gift and said it was given to the other son under undue influence.

Paul Trudelle: That’s right and there was actually some fairly extensive evidence from the solicitor who acted on the transaction and also from her family doctor as to her capacity and both the solicitor and her two family doctors felt that while she was elderly and frail, she did have capacity and she understood what she was doing when she gifted this farm to her one son.  Then the mother passed away and the one son brought an application to get a declaration that the gift was valid.  The other two children brought a cross-application to say that the gift was not valid and was a result of undue influence.

Diane Vieira: In the situation the mother, at the time of the gift, was ninety-three years old and a dependant of the applicant.

Paul Trudelle: I think that is quite important that evidence with respect to dependency. The mother was living with the son, she was quite adamant that she didn’t want to be moved into a nursing home and by living with the one son, she was able to avoid having to move into a nursing home, although she was found to be quite, you know, vulnerable and dependant and relied on that one son for essentially all of her care

Diane Vieira: The judge in this case noted that even though the mother likely did have capacity, she was very vulnerable at the time the gift was made in terms of she was just coming out of the hospital and didn’t want to go to a nursing home.  So that point came out in determining whether or not this was under undue influence

Paul Trudelle: That’s right and I think that is very important.  In looking at undue influence, we see undue influence with respect to gifts.  We also see it with respect to Wills that are often said to be the result of undue influence.  And the case law often states that undue influence is beyond influence, it must be undue and it must amount to arm twisting or coercion in the normal course.  If you are making an allegation of undue influence, however, that is quite different where there’s a relationship of dependency or vulnerability.

Diane Vieira: In this case, the judge did see a relationship of dependency and suggested that it was up to the applicant to rebut the presumption of undue influence.

Paul Trudelle: That’s right, and it’s because of that presumption that the onus shifts onto the receiver of the gift.  Presumption of undue influence doesn’t apply in every relationship, although it does apply in certain relationships such as a solicitor and client relationship, parent-child,  guardian and ward, and we are seeing it more and more in other relationships of dependency such as an elderly parent and an adult child.  And in this case, the judge found that there was a presumption of undue influence and in his analysis went through the cases in which you would find a presumption of undue influence and what follows from that. 

I think after finding a relationship of dependency, the Court will then, as set out by the judge in the  Bale and Bale decision and referring to the Goodman Estate and Geffin decision from 1991, a Supreme Court of Canada case.  After there is a finding of a relationship of dependency that gives rise to a presumption of undue influence, the Court will then look at the nature of the transaction.  If it is a commercial transaction or a sale or other transfer, they will look at whether there was consideration or not.  With respect to other transactions like this one where there is a gift, its not that easy to do that, so what the Court will then look at is the onus moving on to the defendant to rebut that presumption.

Diane Vieira: And in this case, the applicant, as part of his evidence, was he offered medical testimony in terms of capacity and her disappointment with her other sons.  However the judge rejects this in a way.  What he expected was evidence that this was a transfer made out of gratitude and that was something that neither the lawyer or the applicant spoke of, the reason for this transfer.  And he found that suggested undue influence.

Paul Trudelle: Right and I think they said that, the Court there said that in order to rebut the presumption, it would have to be a result of the mother’s full, free and informed thought.  She was extremely vulnerable and dependent upon the son for her care and that vulnerability tainted the transaction, so to speak.  And the Court concluded that the decision to convey the farm was the result of undue influence by reason of her dependency.

Diane Vieira: In this situation, do you think it would have made a difference if the mother had independent legal advice?

Paul Trudelle: I think that would help and I think if there was independent legal advice we would have perhaps some evidence with respect to the transaction and the reason for it.  Here there was legal…a lawyer was involved and documented the transaction but there was some question as to how the mother got to see the solicitor and as he stated, there was an absence of any notes with respect to the reason for the transaction, it seems.  So on the issue of undue influence and vulnerability as discussed there was a finding that the gift was made as a result of this undue influence, presumption of undue influence because of the dependency the elderly mother. The Court found that while there was a great deal of affection between the mother and the son and it didn’t say that there was anything improper about the relationship, you know, the Court felt that there wasn’t…the affection that they shared for each other wasn’t sufficient to validate the transfer of the farm to the son.  I think it is important to note there that the farm was essentially all of the estate and would leave the other children with nothing.

Diane Vieira: Another issue that was decided was in terms of the accounting that the applicant provided.  He did take a number…some money from his mother’s bank account while he was caring for her.  He used some of this money to purchase a truck.  He testified the truck was being used to transport the mother back and forth from medical appointments and what not.  In this case, the judge found that this truck was a gift.

Paul Trudelle: Right and I think just because it was a much smaller amount relative to the value of the estate and because of the findings of capacity, the elderly mother was said to have known about this gift and approved of it and consented to it.  I think because it wasn’t all of the estate, the Court was prepared to let that gift stand, whereas a gift of the entire estate was seen as too much.

Diane Vieira: And the judge also found that the respondents, the other two brothers, failed to prove their claim for a loss of occupation rent.  That was going back to the request that the other brother pay them the rent for the farm they had been using.

Paul Trudelle: Right and I think again the Court wanted to be seen as, you know, being fair and balancing that.  They didn’t allow the farm to go to the son but they weren’t going to turn around and charge him occupancy rent for staying in the property during that period because of the assistance he was providing to his mother.

Diane Vieira: So in the end, the judge ordered that the sale of the farm be set aside under the grounds of undue influence, while dismissing the respondents’ other requests for damages and occupation rent.

Paul Trudelle: Right and I think that is a good and useful discussion of that case.  It’s the type of case, as we said, that we see often and I think all of the circumstances surrounding any gift of property by a deceased prior to death need to be looked at.  It’s not just enough to say, well, what’s in the estate and how is it divided now? You’ve got to step back a little bit and see what was in the estate and where did it go, if it was a gift during the lifetime of the testator, was it a gift made while she had capacity, was it a gift that may be tainted by undue influence as a result of his or her dependency.

Diane Vieira: Do you think it would have made a difference if the mother in this case, since she did have capacity, made a new Will?

Paul Trudelle: I think it might have. I think again the same analysis that the Court went into with respect to undue influence with respect to the gift might be used with respect to an allegation of undue influence regarding the Will, if, rather than gifting the farm, she simply made a Will leaving the entire farm to her son, the same arguments would have been made, I expect.

Diane Vieira: I think that brings us to an end of this week’s discussion. Thanks for listening and thanks for joining me today, Paul.  

Paul Trudelle: Well, thank you very much. Diane, and we’ll speak to you again soon.

Diane Vieira: And we look forward to hearing from our listeners.  You can send us an email at hull.lawyers@gmail.com or just pick up the phone and leave us a message or comment at 206-305-6636.  Be sure to visit our blog at estatelaw.hullandhull.com where you will find even more information and discussion on today’s practice of estate law. And you can find the case citation for Bale vs Bale on our website. We hope you enjoyed the show. I am Diane Vieira.

Paul Trudelle: I am Paul Trudelle.  And until next week, we’ll talk to you then.

This has been Hull on Estates with the lawyers of Hull & Hull.  The podcast you have been listening to has been provided as an information service.  It is a summary of current legal issues in estates and estate planning.  It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

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

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

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

Have a great weekend.

Paul Trudelle

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

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

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

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

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

Thanks for reading.

Sean Graham

As discussed in the Business Standard, those in favour of heeding Nabokov's wishes are not willfully destructive.  It is understood that great writers might work through countless drafts before arriving at a final product that meets their approval.  On the other hand, there's the argument that writers (including Kafka) seldom can judge their own work.

The long twisted saga may find its fate as a cliffhanger of sorts.  In a dramatic verdict, Dmitri indicated late last month that he had indeed "decided to make a decision" about what to do, but that he would "neither disclose publicly either the decision or the deed."  Apparently (or should I say apparition-ly?), Dmitri reached his decision after an imagined ghostly conversation with his dead father.  Stay tuned for the future unveiling of either a box of Laura's ashes or what might be Nabokov's greatest literary work.

David M. Smith

Regrettably, the outlook for many terminally ill patients is not as rosy and not every person faced with such odds gets a second chance.  Reminiscent of the case of Terri Schiavo in 2005, a father of a brain-damaged 23 year old has appealed a ruling by the Delaware Court of Chancery that could allow the removal of a feeding tube and end her life (read about it here).  Lauren Richardson was pregnant at the time she fell into a persistent vegetative state, and she was kept alive to enable her to give birth (which she did successfully last year).  The Court has now granted guardianship to her mother, who insists her daughter did not wish to live this way and wants the artificial life support measures withdrawn.      

In Ontario, having a Power of Attorney for Personal Care and a Living Will in place will ensure that your intentions regarding treatment will be considered.  Without the guidance afforded by these critical documents, your family may be unable to carry out your wishes (such as discontinuing medical treatment where there is no hope of recovery).  Including health care directives as part of your estate plan also enables you to specify instructions, such as requesting medication to alleviate suffering or distress, even though this may hasten the moment of death.

Sarah Hyndman Fitzpatrick