Estate practitioners should take note that many of the forms prescribed under Rule 74 have been revised, albeit primarily minor revisions have been made. The following forms have been revised:

• Form 74.4 - Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant);
• Form 74.4.1 - Application for Certificate of Appointment of Estate Trustee with a Will (Individual Applicant) Limited to Assets Referred to in the Will;
• Form 74.5 - Application for Certificate of Appointment of Estate Trustee with a Will (Corporate Applicant);
• Form 74.5.1 - Application for Certificate of Appointment of Estate Trustee with a Will (Corporate Applicant) Limited to Assets Referred to in the Will;
• Form 74.7 - Notice of an Application for a Certificate of Appointment of Estate Trustee with a Will;
• Form 74.14 - Application for Certificate of Appointment of Estate Trustee without a Will (Individual Applicant);
• Form 74.15 - Application for Certificate of Appointment of Estate Trustee without a Will (Corporate Applicant);
• Form 74.20.1 - Application for Certificate of Appointment of a Foreign Estate Trustee’s Nominee as Estate Trustee without a Will; and
• Form 74.30 - Application for Certificate of Appointment of Estate Trustee During Litigation.

Forms relating to passing of accounts applications have also been amended to correspond with amendments effecting applications to pass accounts, unopposed judgments on passing of account applications, and requests for increased costs.

The most significant changes to the Table of Forms made by O. Reg. 55/12 are the introduction of the following new forms:

• Form 74.13.2 - Order for Certificate of Appointment of (Succeeding) Estate Trustee with a Will Limited to the Assets Referred to in the Will;
• Form 74.21.1 - Application for Certificate of Appointment as Succeeding Estate Trustee with a Will Limited to the Assets Referred to in the Will;
• Form 74.22.1 - Consent to Applicant’s Appointment as Succeeding Estate Trustee with a Will Limited to the Assets Referred to in the Will; and
• Form 74.23.1 - Certificate of Appointment of Succeeding Estate Trustee with a Will Limited to the Assets Referred to in the Will.

The above-noted new forms were introduced as previously there were no forms available to address the appointment of a succeeding estate trustee who had a grant of probate limited to the assets referred to in the will, as in situations of multiple wills.

The revised and new forms have recently become available on the Ontario Court Services website. The revised and new forms come into effect, as do the other changes introduced by O. Reg. 55/12, on July 1, 2012.

Thanks for reading,
Saman Jaffery

In Ontario partial intestacy is governed by Part II of the Succession Law Reform Act ("SLRA"). In determining what to do with the portion of the Deceased's estate which was not covered by their will, the first step is to identify whether the Deceased was married at the time of their death (unfortunately for the purpose of this section common-law spouses are not entitled). When a married person dies intestate the first $200,000 of their estate goes to their spouse as a "preferential share". If there are any funds remaining in the estate after the payment of the preferential share, these funds are then distributed according to a set statutory scheme.
 

Presumably, when a married person leaves a will, they will leave part of their estate to their spouse. As the surviving spouse is likely already receiving a portion of the Deceased's estate under the will, it seems unfair that the spouse would be entitled to an additional first $200,000 as a preferential share of the Deceased's property which was not covered by the will. In order to get around this, section 45(3) of the SLRA provides that you need to take into account any property that the spouse receives under the will and subtract this from the preferential share. For example, if a person received $150,000 under the will, they would receive a preferential share of the first $50,000 of the Deceased's property that was not covered by the will. If a spouse receives more than $200,000 under the will, then in the case of the property not covered by the will there would be no preferential share.
 

If there is any property remaining after the payment of the preferential share, this property is distributed according to a set statutory scheme. In the case of a person dying with a spouse and no issue all remaining property is distributed to the spouse. If a person died with a spouse and issue, if there is only one issue then 1/2 of the remaining property goes to the spouse and 1/2 to the issue. If there are 2 or more issue, then 1/3 of the remaining property goes to the spouse, with the remaining 2/3 distributed to the issue.
 

In the case of a person dying partially intestate who is not married, the property would be distributed to their issue. If there are no issue it would go to their parents, siblings, nephews and nieces, or next-of-kin with reference to section 47 subsections (3) to (6) of the SLRA. In the event that no next of kin can be found, then pursuant to section 47(7) the property would escheat to the Crown.
 

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

Article 171 of France's civil code states: The President of the Republic may, for serious reasons, authorize the solemnization of marriage if one of the spouses died after completion of official formalities marking it unequivocal consent. In this case, the effects of marriage dated back to the day preceding the death of the husband. However, this marriage does not entail any right of intestate succession for the benefit of the surviving spouse and no matrimonial property is deemed to have existed between the spouses

Each year in France approximately twenty persons marry recently-deceased ex-partners.  Moreover, the law allows a posthumously born child to take the father's name.

Have a great long weekend!

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

The Court considered Re Jeffery Estate, [1990] O.J. No. 1852 (Surr Ct.) and the oft-quoted five factors which are determinative in assessing compensation:

(a) the size of the trust;

(b) the care and responsibility involved;

(c) the time occupied in performing the duties;

(d) the skill and ability shown; and,

(e) the success resulting from the administration

The Court went on to note that "..the audit judge should first test the compensation claims using the percentages approach and then...cross-check or confirm the mathematical result against the five-factors approach....Hence, it is necessary to have the Accounts of the estate and the compensation sought by the Estate Trustee before the court in order to determine the amount of compensation sought by the Estate Trustee.  Therefore the motion to deny the Estate Trustee any compensation is dismissed but strictly without prejudice to the right of the applicants to argue that he is not entitled to compensation for the reasons urged upon this court, in the event he should seek compensation."

Notwithstanding that the relief was not granted, the Court was sympathetic to the plight of the applicants (they were young, in need, and there had been excessive delay) and ordered costs against the estate trustee.

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

The third of these rules is often referred to as the "the course of dealing rule."   This is an equitable concept: the course of dealing rule operates so as to prevent a party from asserting a right of survivorship where doing so would not do justice between the parties. 

In Hansen Estate v Hansen 2012 ONCA 112, the Ontario Court of Appeal considered whether a course of dealing between spouses in the midst of a legal separation equitably severed the joint tenancy in place at the time of Mr. Hansen's death.  In its analysis of the applicability of the course of dealing rule, the Court applied a quote from Professor Ziff: “the best way to regard matters is to say that equity will intervene to estop the parties, because of their conduct, from attempting to assert a right of survivorship.” The key factor is the expression of intention by the co-owners as evidenced by their conduct.  The Court goes on to say "the mutuality for the purposes of Rule 3 is to be inferred from the course of dealing between the parties and does not require evidence of an agreement."

The Court of Appeal found that the facts of the case established a course of dealing that severed the joint tenancy.  It is worth noting that the Court enphasised that each case in which this analysis is applied must be considered in the context of its specific fact matrix.

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

 “Mary explained to her father in her usual forthright manner how very unfair she regarded his 2001 Will, and told him that she regarded the only fair disposition of his remaining property as being one under which she and her sister should be the beneficiaries, so as to take account of the substantial gifts of farmland which her father had already made to her brothers, and thereby bring about some semblance of equal treatment. I infer also that, in response, her father gave in to her request that he change his will accordingly.”

Two days later, the daughter drove the testator to a lawyer's office to make a new will.  

The Judge considered evidence from two expert psychiatrists, family members, neighbours, and the drafting lawyer. The psychiatrists agreed that the testator was suffering from cognitive impairment, possibly a precursor to dementia. 

Witnesses who saw the testator in the weeks following his wife’s death described him as "devastated" and "having taken a turn for the worse, mentally and emotionally." 

The Judge found that capacity is not determined solely by whether the deceased had the mental capacity to understand what he was doing: “The evidence of the experts in the present case shows… that affective disorder such as depression, including that caused by bereavement, is more likely to affect powers of decision-making than comprehension. A person in that condition may have the capacity to understand what his property is, and even who his relatives and dependants are, without aving the mental energy to make any decisions of his own about whom to benefit.”

The Court accepted expert evidence that bereavement can impede concentration, attention, and the ability to  retain information. Depression caused by bereavement could exhibit symptoms similar to dementia.

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

According to section 48(1) of the CLRA, the parents of a child are equally entitled to be appointed as guardians of property of the child.  It thus follows that upon the passing of one parent, the default position under the CLRA is for the surviving parent to have guardianship.  Furthermore, under section 47(1) of the CLRA, the court can appoint a guardian of property upon an application made by, "…a child's parent or by any other person, on notice to the Children's Lawyer".  By including 'any other person' into the section opens the gates for non-parents to apply for guardianship.  In furtherance to a surviving parent or 'any other person' as mentioned above, a guardian of property can also be appointed by a testator under their will as per section 61(2) of the CLRA.
 

After considering who is eligible to become a guardian, it is important to consider the factors the court considers in the appointment process.  Section 49 of the CLRA lists the criteria considered by the court in deciding the appointment of a guardian of the property of the child.  These include: the ability of the applicant to manage the property of the child; the merits of the plan proposed by the applicant for the care and management of the property of the child; and the views and preferences of the child, where such views and preferences can reasonably be ascertained.  As well, the courts will consider the best interests of the child as noted in section 19(a).  It is important to remember that since the application is for a guardianship of property, the CLRA only requires submitting a management plan for property.
 

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

This is the case with the Estate of Gary Coleman of ‘Diff’rent Strokes’ fame. Coleman passed away in 2010 of a brain hemorrhage. Reports of the value of his Estate vary, but the Chicago Tribune notes in a recent online article that the Estate primarily consists of his cremated remains, future rights to ‘Diff’rent Strokes’ and other intellectual property. Despite what appears to be an Estate of moderate worth, Coleman’s ex-wife and his long time friend and CEO of his company, have been locked in a legal battle since his death. 

Coleman left two wills, one made in 1999 and one made in 2005. The 2005 Will names his long time friend as Executor and sole heir. However, the 2005 Will also has a handwritten amendment, purportedly made in 2007, which names his ex-wife as sole heir. Coleman’s ex-wife has also alleged that while her 2007 marriage to Coleman ended in a divorce in 2008, she and Coleman continued to live together as husband and wife in a common-law marriage until his death, and that Coleman wanted to benefit her on his death.  

Coleman’s long time friend is reported in an online article in The Salt Lake Tribune as saying that her fight isn’t about the money.   What she claims to want are Coleman’s assets, and to ensure that his name is not exploited, and that it is only used for projects that he would have approved. The Estate and the positions of the two litigants were explored this week in a Utah Court, and Fourth District Judge James Taylor has said that he will issue a ruling at a later date.   The Court has been charged with determining whether the 2005 Will stands (including whether the holograph change is valid), whether the 2005 Will fails, and whether his ex-wife can claim control over the Estate on the basis that she was Coleman’s common law spouse at death. 

Regardless of the outcome, it seems that this matter is very emotionally charged, and both sides are placing a large part of their focus on their emotional connection with Coleman, and Coleman’s wishes. Although Estate disputes are almost always fraught with emotion, with the costs of litigation being what they are, in this matter, two years of litigation, culminating with a two day trial, all over an Estate that could very well be insolvent, would seem a risky endeavour but for the emotional side of things. Regardless of the legal implications it is almost certain that the fame factor will keep us tuned in.

Have a nice weekend,

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

The Ontario Court of Appeal was recently asked to consider a nuance of this particular issue, and rendered its decision in the Dinghra v. Dinghra Estate 2012 ONCA 261 on April 24, 2012. The decision notes that Mr. Dinghra took out a group life insurance policy in 1998. He was the beneficiary of the policy on his wife’s life. He later killed his wife in 2006, but, in 2008, was found not criminally responsible for her death (Criminal Code, R.S.C., 1985, c. C-46, s. 16).  In 2007, a claim was made by the Respondent, the Estate Trustee of the wife’s Estate, who submitted to the insurer an Accidental Death Claim, claiming the proceeds of the insurance policy on behalf of the Applicant/Appellant, Mr. Dinghra. Payment was not immediately made, and after the criminal trial, the Respondent requested that the proceeds of the insurance policy be paid to the Estate. In response, the insurer brought an application to have the funds paid into Court, which relief was granted in 2009.  Thereafter, the Applicant made an Application to the Superior Court of Justice to have the proceeds paid to him.  

The lower court found that the public policy rule that ‘one cannot benefit from one’s crime’ was not limited to intentional killing, on the basis of the trial judge’s interpretation of the decision in Ontario Municipal Employees Retirement Board v. Young (1985), 49 O.R. (2d) 78.   The lower court judge found that the Applicant committed ‘second-degree murder’ as he physically committed the crime, even though he was found not criminally responsible.  This rationale lead to a finding that the Applicant was not entitled to the proceeds of the life insurance policy. 

On appeal, the Appellant submitted that he was entitled to the funds, and that even if he wasn’t, the Estate had no claim as the Estate was not a named beneficiary of the policy.   The Respondent agreed that the Estate was not entitled to the proceeds.   Upon consideration, the Court of Appeal found that pursuant to the rule of public policy, a party found not criminally responsible, is not prevented from taking under an insurance policy. The Court then considered whether the rule had been varied because of the Civil Remedies Act, an issue which the Court of Appeal referred to as ‘novel’[1].   The Court of Appeal disposed of the matter by setting aside the order of the lower court and granted that the insurance proceeds held by the Accountant of the Superior Court of Justice (along with interest) were rightfully payable to the Appellant. Interestingly, the Order was stayed for 30 days, allowing the Attorney General time to consider whether he wishes to apply for an interlocutory order under s. 4 of the Civil Remedies Act.

Professor Erik Knutsen of Queen’s University, an insurance law specialist, was quoted in the above noted article, saying “the court has stated that you need criminal intent before you can deny someone an insurance benefit on public policy grounds”. Although it may be that this issue isn’t seen often in the Estate context, and even here it was generally accepted that the Estate did not have an interest, it is not without possibility that we may see more claims given the new clarity in the law. 

There are still a few weeks before the stay on the order of the Court of Appeal is lifted.   Perhaps this isn’t the last of this case. We’ll just have to wait and see.

Thanks for Reading,

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

Yet, peaceful is probably not the word that would describe the Mount Pleasant Cemetery board of directors this week, as speculation has been raised about whether the land should technically be a Crown Corporation.   The creation of the “Mount Pleasant Group of Cemeteries” was created by an act of provincial legislature nearly 200 years ago, as a public trust. The status of the organization has morphed into what is now self-identified as ‘Commercial’ and ‘Privately-owned’. Exactly how much revenue is being generated is unknown.  

Critics have recently been claiming that that land ought to be public; with responses being that the original legislation did not indicate that the land was to be publically owned.   There has been discourse between the two factions, with the current status being that Mount Pleasant Cemeteries is not obliged to be transparent.   The parties attempting to declare the Cemeteries public are relying on legislation that dates back before confederation, and the interplay between the original legislation and the subsequent variations is being hotly debated.  

The academic legal questions and areas of interest are certainly numerous in this debate. For the moment we can all take some comfort from the fact that the current use of the land isn’t in dispute, and that those at rest will remain at peace. The question of who owns the land however, may be up for debate for years to come; the ramifications of that question are still unknown.

Until Tomorrow,

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

• Seau took his own life by shooting himself in the chest. Fifteen months ago, former NFL safety Dave Duerson died of a self-inflicted gunshot wound to the chest, having left a suicide note asking for his brain to be donated for research. The Boston University School of Medicine Center for the Study of Traumatic Encephalopathy determined that Duerson’s brain indeed showed signs of CTE, the progressive, degenerative disease associated with repetitive closed head injuries.

• Up until April 19, 2012, Former Atlanta Falcons safety Ray Easterling was the lead plaintiff in a class action lawsuit against the NFL over concussion-related injuries. Since his death last month, by suicide, his widow has vowed to continue to fight the lawsuit her husband started after 20 years of suffering from symptoms of repetitive head trauma including memory loss, mood changes and depression.

• According to a 2011 study conducted by the Matthew A. Gfeller Sport-Related Traumatic Brain Injury Research Center at the University of North Carolina, the average life expectancy of a retired NFL player is 55 years. Some insurance providers have indicated that this is actually an overestimation, and that in fact the average age is somewhere closer to 51 years. For comparison purposes, the average male life expectancy in the United States is 78.2 years. [Note: If you played for the San Diego Chargers in 1994’s Super Bowl XXIX, then the odds against you are significantly grimmer. Eight of those teammates are dead, all before reaching the age of 45; a statistical anomaly since the 8 deaths lacked common cause.]

• The same UNC study  suggested that retired NFL players suffer from dementia at a 37% higher rate than average.

• A 2006 report in the St. Petersburg Times found that the more games and practices an NFL player survives, the quicker he dies. In his first 14 pro seasons, Seau missed only 9 games.

If Seau’s parents decide not to donate his brain for research, we may never know with certainty whether he suffered from Chronic Traumatic Encephalopathy. One thing is for sure, there’s something about playing in the NFL that doesn’t bode well for one’s life trajectory. Are repeated head hits causing organic damage to the brain, after which depression is the next domino to fall? Or perhaps, as in Easterling's case, organic brain damage brings on intolerable shifts in personality and cognitive functioning, but in an unkind twist, leaves one with just enough insight to see what lies ahead. Roger Goodell has made great strides since becoming NFL commissioner in 2006, introducing preseason baseline concussion testing, for example, not to mention the unprecedented smackdown of the Saints players implicated in the bounty scandal earlier this month.  His work is far from finished.

Jennifer Hartman, guest blogger

Through the doctrine of cy-pres not all hope is lost for the Children's Hospital. The cy-pres doctrine can be roughly thought of as the "near to" doctrine. It allows the court to apply funds which were intended for one charitable purpose (but for which distribution has now become impossible or impracticable) to instead apply those funds to another charity which has a "near to" charitable purpose. In our own example, through the doctrine of cy-pres, the "Children's Hospital on Lake Street" can receive the $100,000 that was intended for the "Children's Hospital on Main Street".
In order to apply the cy-pres doctrine, the court must first find that the charitable purpose has become impossible or impracticable. Examples of a charitable purpose being found impossible or impracticable can include a charity changing its name, the incorrect name being included within the actual trust document itself, or even when although the charity to which you left the money still exists, the task you left it for has now become impracticable (i.e. leaving money to the church to build a new steeple, but by the time you die the steeple has already been built).
 

Subsequent to the finding of impossibility or impracticability, you must next look to when the impossibility or impracticability with respect to the property being transferred occurred. If the failure occurred before the trust has taken effect (i.e. before the person dies in the case of a will), the court must also find that there was a "general charitable intention" on the part of the testator before the cy-pres order can be made. If, however, the failure occurs after the trust has taken effect, there is no need for the court to also find a general charitable intention on the part of the testator, and the cy-pres order is automatic.
 

In looking for whether there was a "general charitable intention" on the part of the testator, the court will look to the general circumstances surrounding the execution of the gift, and whether it was the intention of the testator to benefit only the specific cause to which they referred, or the more general heading or purpose to which the money was left to. If it was the testator's intention to simply benefit a specific cause then the cy-pres doctrine cannot be applied and the gift must fail. If, however, the testator intended to merely benefit the charitable purpose under which the gift fell, then through cy-pres the gift can be saved. Take for example the scenario used before of a person who left money to the church so that they may build a new steeple, but by the time the testator actually dies the church is no longer in need of such funds. If the court concludes that it was the intention of the testator to only give money to the church so that they may build a new steeple (and not simply to the church generally) the gift will fail. If, however, the court concludes that it was testator's intention to benefit the church in general then through the doctrine of cy-pres the gift can be saved, and the money can go to the church.
 

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

The facts of the case were as follows:

Lori Love and Dennis Love were married October 9, 1976.  They had four children.  In 1999, Dennis designated Lori as the beneficiary of a life insurance policy worth $135,000.00.  Lori and Dennis divorced in 2006. 

On March 8, 2006 Dennis sent an e-mail to his employer’s HR department.  The subject line of the e-mail was “Change of Beneficiary”.  The e-mail contained the following communication:

“Due to my recent divorce I would like to change the beneficiary on my pension etc.  (from my former wife to my son).  Can you provide me with what ever paper work is required and I will fill them out and return them to you.  Thanks.”

The HR Manager forwarded a Group Coverage Change Form (“the change form”) to Dennis.  She did not discuss with Dennis the procedures or the importance of signing, dating and completing the form.  The change form was found in Dennis’ file after his death and it was only partially completed. 

Dennis died intestate on February 22, 2009.  A legal battle ensued over the life insurance proceeds.  The key issue before the Court was whether Dennis effectively changed the designated beneficiary on his life insurance policy in accordance with the Insurance Act. 

The relevant provisions of the Insurance Act are:

152(2) Subject to section 153 [deals with irrevocable designations], the insured may alter or revoke the designation by a declaration.

 

The term ‘declaration’ is defined as follows:

 

133… (e) “declaration” means an instrument signed by the insured:

 

(i) with respect to which an endorsement is made on the policy; or

(ii) that identifies the contract; or

(iii) that describes the insurance or insurance fund or a part thereof;

in which he designates, or alters or revokes the designation of, his personal representative or a beneficiary as one to whom or for whose benefit insurance money is to be payable.

The Court then considered the following provisions of Saskatchewan's Electronic Information and Documents Act, 2000:

  3… (b) "electronic signature" means information in electronic form that a person has created or adopted in order to sign a document and that is in, attached to or associated with the document;

4(1) This Part does not apply to:

(a) wills...

(c) trusts created by wills;

(d) powers of attorney...

(e) documents that create or transfer interests in land and that require registration to be effective against third parties; or

(f) any other provisions, requirements, information or documents prescribed in the regulations.

14(1) A requirement pursuant to any law for the signature of a person is satisfied by an electronic signature.  

In Ontario, we have a similar act called the Electronic Commerce Act, 2000.

The Court found that Dennis' email could be considered a document signed by him.  It then went on to examine the effect of what was said in the email.

The Court quoted the following statement made in Norwood on Life Insurance Law in Canada:

...and the fact that an insured may write to the insurer mentioning a particular person and asking for a beneficiary declaration form may not be considered as evidence that the insured intended to benefit the person that the insured had in mind, but only as an indication that the insured was contemplating a future designation.

The Court concluded that the email on its own was not a direction within the meaning of the Insurance Act. 

There was a direct reference to Dennis’ pension plan, but there was no reference to the life insurance policy which was the subject of the application. Dennis’ son argued that the word “etc.” should be construed as meaning the life insurance policy but the Court refused to go that far. 

The Court stated that in order to be an effective declaration there must be a clear description of the policy affected and a clear direction with respect to the new beneficiary.  In this case, Dennis just referred to “my son” without naming any one son in particular (he had three sons and one daughter).  The Court said that the email reflected an indication that the Deceased was contemplating a future designation, not an effective declaration of change.

Thanks for reading.

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

"A descendant of mine other than a child of mine who marries outside the Jewish faith (unless the spouse of such descendant has converted or converts within one year of the marriage to the Jewish faith) and his or her descendants shall be deemed to be deceased for all purposes of this instrument as of the date of such marriage."

The lower Court held that this violated the public policy of the State of Illinois, and the appellate Court affirmed that decision.  In 2009, the Illinois Supreme Court reversed the decision and held that the testamentary disposition was valid.

The Illinois Supreme Court based its decision on the fact that Max had given Erla a power of appointment over her trust, granting her the right to change the provisions of the trusts.  In 1997, she exercised that power so that instead of lifetime trusts, any of her grandchildren who were not deemed deceased under Max’s original estate plan at the date of Erla’s death would receive $250,000.00. The Court stated that: "Erla did not impose a condition intended to control future decisions of their grandchildren regarding marriage or the practice of Judaism; rather, she made a bequest to reward, at the time of her death, those grandchildren whose lives most closely embraced the values she and Max cherished."

The author of an article discussing the Feinberg case states that had the Court been required to rule on the validity of the original terms of Max’s estate plan, it would probably have found it to be invalid.

In Canada, the Courts have also strictly interpreted conditions in a clause which would result in the forfeiture of a vested estate.  In Canada Trust Co. v. Ontario Human Rights ("Canada Trust") the Court ruled that a trust which was based on discriminatory notions was invalid as against public policy.  The subsequent case of Fox v. Fox Estate ("Fox") dealt with a Trustee’s ability to exercise her discretion to effectively cut out a beneficiary who had married outside the Jewish faith.  The Ontario Court of Appeal in Fox compared the discriminatory terms of the trust in the Canada Trust case, to the Trustee's decision to pass over a beneficiary for marrying a non-Jewish woman: 

“If a settlor cannot dispose of property in a fashion which discriminates upon racial or religious grounds, it seems to me to follow that public policy also prohibits a trustee from exercising her discretion for racial or religious reasons. I am of the view that in this case it would be contrary to public policy to permit a trustee effectively to disinherit the residual beneficiary because he dared to marry outside the religious faith of his mother.”

Thanks for reading.

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

RESPs are created by the Government of Canada to assist in saving for post-secondary education. RESPs offer tax-free growth while the money is inside the plan. In addition, certain government grants called the Canada Education Savings Grant (CESG) and the Canada Learning Bond are only available if an RESP is opened. To learn more about RESPs in general, click here.

RESPs are not considered trusts because it is an investment of capital made in the parent’s name with the intent of it going to the child if and when they attend a post secondary institute. It does not become the child’s money until they attend post secondary school and it can be collapsed at any time by the parent prior to that point. 

Another option for saving for a child’s future is to create a trust or an “in trust for” (ITF) account whereby the parent or other adult would manage the investments on behalf of the minor. There are generally no restrictions for how or when the funds may be withdrawn and spent. As stated above, monies held in trust for another person are considered exempt property under the BIA. However, in most cases the child would be able to demand payment of the capital of the trust upon reaching the age of 18. 

Apart from the consequences of a bankruptcy, there are many other important differences between RESPs and ITFs including control, ownership, flexibility, grant availability and taxation. A financial advisor should be consulted prior to making any decisions with respect to these types of investments.

Thanks for reading.

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

One ordinarily thinks of such applications being brought for elderly people with Alzheimer’s Disease or other forms of serious mental incapacity.  However, some exasperated and frightened parents may consider a guardianship application to get their children into treatment.

It is very common for people suffering from eating disorders to refuse medical treatment.  A U.S. organization called the National Eating Disorders Association has stated that "legal interventions, including involuntary hospitalization and legal guardianship, may be necessary to address the safety of treatment-reluctant patients whose general medical conditions are life threatening."

The lecturer at the CLE noted that the use of the guardianship process in these circumstances is usually a bad idea; the applications are expensive, and people suffering from these conditions usually have fluctuating capacity.  Thus, even if the applicant is successful in obtaining guardianship and placing the person into treatment, the treatment will usually result in that person regaining sufficient capacity, at which time they would be entitled to make their own choices - even if those choices resulted in a relapse. 
 

A better option for parents in these cases may be to apply to the Ontario Consent and Capacity Board ("OCCB") under s.51(2) of the Health Care Consent Act (“HCCA”) to be appointed the individual’s representative so they can make decisions on their child’s behalf about entering into a treatment facility.  The OCCB is a quasi-judicial tribunal created under the HCCA.   It deals with issues of capacity, consent, substitute decision making and mental health. 
 

Under the HCCA there is no defined minimum age of consent - thus people under 18 should be assessed like an adult with respect to their ability to consent to medical treatment.   However, there may still be a presumption that after 16, the individual may be treated like an adult.

The test for capacity is found in s.4(1) of the HCCA:

A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

After a review of some of the relevant decisions of the OCCB, it appears that there are cases where the Board has found young adults suffering from eating disorders to be incapable of consenting to treatment.  One case which provides a thorough analysis of the factors considered by the OCCB can be found here. 

Thanks for reading.

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

The FLA clearly attempts to limit the Ontario Court of Justice's jurisdiction to make orders under s 34(2) unless one of the two exceptions are met in section 34(2).  It is worthwhile to explore how the court has interpreted these two exceptions.
 

The case of Baugh v. Samuels, 2001 CanLII 32833 (ON CJ), applies the ordinary dictionary definition to necessities.  At paragraph 48, Justice Heather L. Katarynych defines necessities as "…including not just things without which life cannot be maintained but things without which life is unduly harsh.  See the Concise Oxford Dictionary (7th edition, 1982)".  Justice Katarynych further goes on to explain that adequate medical coverage constitutes a necessity under the FLA.
 

With respect to when the section 34(2) exceptions are to arise, two conflicting judgments have been delivered.  In Martel v. Fortier, 1997 CanLII 11575 (ON CJ), Kukurin J. states at paragraph 37 of the judgment, "I can envision no situation in which the mere designation of a child as a life insurance beneficiary will immediately accomplish either of these objects.  It is clear that the intention of the subsection is addressed to the future".  Therefore, the section has been interpreted to focus on necessities and the dependent becoming a public charge arising in the future.  However, in Corbiel v. Corbiel, 1991 CanLII 4017 (ON CJ), the court seemed to follow differently, suggesting at paragraph 5 that, "…the words of the legislature cannot be interpreted to provide a form of security for necessities which, speculatively, may be required a lengthy time from now.  Although no authorities were cited to me, cases where such orders have been made involve needs and requirements of a much more imminent and emergent nature".  This seems to be contrary to the decision in Martel, as here, the Ontario Court of Justice is suggesting that necessities be imminent, and do not have to necessarily address future concerns.
 

As demonstrated in Corbeil and Martel, although the law is not entirely clear as to when the Ontario Court of Justice can flex their authority under s 34(2), the law is clear in allowing for beneficiary designations under life insurance and pensions to be used as a way to secure child/spousal support.  This is made clear under section 34(1)(i) and (j).  In the case of Laczko v. Laczko, 1999 CanLII 14998 (ON SC), the courts have gone so far as to require a payor spouse, who did not already have a life insurance policy, to purchase an insurance policy in order to secure child support payments.  This goes beyond the requirement of merely designating an existing insurance policy.
 

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

The amendments also increase the costs allowable upon an unopposed passing of accounts.

The amendments, found in Ontario Regulation 55/12, come into effect on July 1, 2012.

With respect to timing, the amendments make the following changes:

• Notice of Application: Ontario respondent: 60 days notice (up from 45)
• Notice of Application: Outside Ontario respondent: 75 days notice (up from 60)
• Notice of Objection: 30 days before hearing (up from 20 days)
• Response from Children’s Lawyer or Public Guardian: 30 days before hearing (up from 20 days)

The amendments also codify what is required where a request for increased costs is being made, and the time frame for making and opposing such a request.

The tariff for costs allowable on an uncontested passing allows for greater costs. The costs range from $2,500 for an estate having a value of less than $300,000, to $7,500 for an estate having a value of $3,000,000 or more (up from a range of $800 to $5,000).

Have a great weekend.

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

A holographic Tupac Shakur appeared recently to “perform” with Dr. Dre and Snoop Dogg at Coachella, a music festival in Los Angeles.

As readers may know, Tupac was murdered in Las Vegas in 1996. (I do not intend to weigh in on the East Coast - West Coast rivalry that apparently led to his death.)

Tupac’s virtual appearance has led to a number of discussions about the nature of “live” performances, and the appropriateness of bringing the dead back to stage.

The Forbes website posted an article that looked at the performance and the possibility of other deceased performers reappearing on stage.

The Forbes article notes that only the holder of the “right of publicity” can authorize the use of the deceased’s image. In Tupac’s case, the estate executor is Tupac’s mother. The article reports that she did not authorize the use of Tupac’s image, but was “thrilled with the outcome”. Apparently, Dr. Dre repaid the estate by making a contribution to the Tupac Amaru Shakur Foundation.

The article goes on to comment on the role of an estate trustee, and the importance of choosing the right person: someone who will ensure that your reputation and the well-being of your heirs is properly respected. “Putting the right person in charge can make all the difference between tainting your legacy, and having your wishes and goals followed the way you want.”

Thank you for reading.

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

Maybe Phillip II was on to something. Recently, a report has suggested that thinking about death can be a good thing. Awareness of mortality can improve physical health and help individuals reprioritize goals and values.

The report in Science Daily says that even non-conscious thinking about death, such as walking by a cemetery, can prompt positive changes and promote helping others.

One study referred to in the article showed that people were more likely to help a stranger who dropped a notebook while walking in a cemetery as opposed to helping if not in a cemetery.

Another study showed that people were more likely to make better health choices, such as applying sunscreen, smoking less, increasing physical activity or performing breast self-exams, when reminded of death.

These recent studies refute prior research that suggested that thinking about death lead to negative attitudes and harmful behaviour, such as prejudice, greed and violence.

Thanks for reading.

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