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

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As it is the Friday before a long weekend, I thought a more light-hearted blog would be in order. 

What is the origin of Canadian Thanksgiving? Like so much in Canada, we borrowed the tradition from our American cousins in the mid 1800s. However, at the time, Protestant church leaders in Ontario wanted to set the right moralistic tone when it came giving thanks for the harvest. As such, Thanksgiving started off as a decidedly religious, white Anglo-Saxon Protestant, pro-British and anti-American affair. Catholics were certainly not welcome nor were visible or religious minorities. The first national Thanksgiving was held in 1859 on a Thursday. Over time, the Protestant churches lost control of the holiday and it became more secular and less exclusive. Parliament eventually declared that Thanksgiving should fall on the second Monday of October partly due to pressure from transport companies who hoped that a holiday on a Monday would increase holiday traffic. 

Canadian Thanksgiving therefore had nothing to do with harvesting of crops or the arrival of fall colours. But Canadian Thanksgiving is nevertheless typically Canadian: it sprang from a parochial and prejudiced mindset heavily influenced by the politics and values of the day not to mention the colossus to the south. The world of commerce also had a say and got its way when it came to a fixed date. However, as Canada grew and matured as a country, Thanksgiving become more widespread and inclusive. Today, Thanksgiving is a time for all Canadians to give thanks for the bounty of the land and the freedoms we enjoy.  Vive le Canada and Happy Thanksgiving!!

Thanks for reading my blogs this week. 

Justin

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Comparisons of life expectancy across different regions of Canada suggest that Southern, Urban dwellers in mid-size cities tend to live the longest. Northern groups, particularly those with large aboriginal segments, tend to face a much grimmer situation, according to this 2000 article,living approximately 4 years less on average.

Some encouraging news is that the country’s average life expectancy continues to rise. Of particular interest to me: men are approaching women in terms of life expectancy, although we’re not quite there yet. As against the rest of the world, Canada just barely cracks the top ten according to Wikipedia with an average life expectancy of 80.34, trailing number 1 Andorra’s (Andorra - who knew?) average lifespan of 83.52 years.  Swazilanders, with an average lifespan of 39.6 years, have the terrible distinction of being at the bottom of the list.

Women apparently live longer than men in every region except South Asia.

As would be expected, there seems to be an obvious and very strong correlation between level of industrialization and overall wealth and longer lifespan.

Are you feeling optimistic? Try this Life Expectancy Test to get a sense of the factors affecting you.

Thanks for reading.

Sean Graham

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The UK, home of the Common Law, seems willing to experiment with alternatives under certain conditions. Elements of Sharia law are apparently making inroads into some areas, most notably family law and estate law.

In early 2008, the Archbishop of the Church of England suggested that the incorporation of elements of Islamic law into the English polity was unavoidable, causing quite a stir before being echoed by a top judge. For a sense of the extent of the debate this has caused in the UK, see this website.

The possible application of Sharia law and other forms of law in the same country has been in the news with respect to any number of countries, including the US, Nigeria, and Australia.

Here’s an interesting article from Australia suggesting that concerns about Sharia law in that country could be overblown. Also, see here for a reversal of the pattern of Common Law countries debating whether to incorporate Sharia, showing that change is not necessarily a one-way street.

Canada is not left out of the debate, with the possible incorporation of Sharia law into some legal relations having been recently ruled out by Quebec and Ontario, the two largest provinces.

It ought to be fascinating to see how things develop in the coming years.

Thanks for reading.

Sean Graham

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Boy, does August ever seem sleepy and restful in retrospect. After a summer in which the Beijing Olympics was probably the major story, the first two weeks of September have served to snap Canadians and Americans out of their reverie. Consider the following developments, all crammed into just over three weeks:

- The US Democratic Convention, featuring the first African-American candidate on any US presidential ticket (and by my hasty reckoning the first black candidate with a strong chance to win executive office anywhere in the entire Western World), takes place from August 25 to August 28;

- The US Republican Convention, featuring the first female candidate on a Republican ticket, and only the second in history, takes place from September 1 to 4;

- Canadian Federal Election commences;

- Hurricane Ike hits Texas; and

- Financial turmoil hits the markets.

And that’s just North America. All this as kids go back to school and summer vacations become a thing of the past. What’s a politico-newsophile like yours truly to do? There’s just not enough hours in the day to keep up with everything.

At least by the end of the first week in November, both elections will be history, hurricane season should be over and hopefully some calm will have returned in the markets. Just in time for the holiday rush. Oh well, there’s always next summer.

Thanks for reading.

Sean Graham

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The son of the notorious Nazi criminal Aribert Heim wants his father declared dead so that he and his siblings can manage his father’s assets. Aribert Heim fled Germany in 1962 when a warrant was issued for his arrest. The Simon Wiesenthal Centre has been tracking him since that time but has never captured him.

In 1997, the son and his sister discovered a German bank account in their father’s name containing 1.78 million dollars. The German government froze the bank account. The son says that if his father is declared dead and he inherits money from his father, he will donate it to the study of the Mauthausen concentration camp.

His son insists that he has not see his father since 1962 and has had no contact with him since that time with the exception of receiving two unsigned notes in 1962 and 1967. His father would turn 94 this year and he assumes that he is likely dead. However, throughout the last four decades Aribert Heim has been spotted numerous times and as late as last month; the Simon Wiesenthal Centre believed that they have found evidence of him living in Chile.  The son says that he is working with a lawyer to provide evidence of his father’s death.

In Canada, the court is authorized by the Declarations of Death Act to determine whether a person is dead on the basis of circumstantial evidence or the rule of common law which presumes a person dead after an unexplained absence of seven years or more. Click here to listen to a podcast on the Declaration of Death Act and the Absentee Act. Additionally, under the Rules of Civil Procedure, an interested party can also apply for the opinion, advice, and direction of the court.

Thanks for reading,
 

Diane Vieira

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 The Beijing Olympic Games come to a close this weekend and the international sports community turns their attention to the 2010 Vancouver Games and the 2012 London Games.
 
The Olympics inspire a multitude of feelings and generate a healthy amount of debate. One thing for certain is that a tremendous amount of preparation is required by the hosting city and the effort of a variety of people are required to pull it all together.
 
An interesting article posted on timesonline looks at the impact of the Olympic Games on the legal profession. The article boldly declares that lawyers are as much a part of the sporting community as athletes. It goes on to describe how the Olympics generate a boom in legal work as a result of preventing ambush marketing and unauthorized broadcasts as well as both defending and prosecuting anti-doping cases.
 
For those interested in learning more about international sports law, a great international law blog Opinio Juris featured some excellent expert commentators during the Beijing Games. A compelling post discussed the growing prominence of athletes representing countries that they are not citizens of. The author contrasts a competitor’s identity vs. a national identity and explains the requirements under the Olympics Charter for an athlete to compete for a nation.
 
Congratulations to all the athletes and let's get ready for 2010!
 
Enjoy your weekend,

Diane Vieira

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Today, if I have my count right, is day eleven of the Olympics. For certain, the Olympics stimulate debate on a spectrum of important social, political, economic and, of course, athletic issues of our time. I do not intend to touch upon those debates. Over the past ten days of the Olympics, however, incredible stories of the athletes have arisen, and will no doubt continue to arise. Some, like Michael Phelps’ eight gold medals, involve incredible success, almost beyond one’s imagination, while others involve success on a more personal level or, as the saying goes, the agony of defeat. These stories, from whatever viewpoint, are quite remarkable and have no doubt involved the setting of objectives, planning and dedication and commitment to the goal.

While perhaps obvious, it continues to strike me as to the extent that these athletes live in the moment or for the day. So much rises and falls for them with one or in some cases several performances. What onlookers of the Olympics take away from the Olympics is no doubt personal but perhaps the notion of setting objectives, striving to obtain them while living for the day is the most universal.

What do these stories actually have to do with Estates? From a legal standpoint, nothing. However, perhaps the above notion may focus us to consider our own legacy and the steps that have been taken, or should be taken now, to ensure that those that benefit from that legacy are the intended ones.

Keep watching.

Craig
 

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Imagine that one day, you were told you had to get a job.  You were told to go make a living, and that hard work was good.  Not only that, you would have to work FOR THE REST OF YOUR LIFE. 

According to virtually every news source in the British Isles, that's exactly what Sir Sean Connery is being accused of doing to his only son, Jason.  This shocking revelation appears to have been exposed by a former wife of the former 007 star, Diane Cilento.  The root cause may be Sean Connery's experience with really, really hard work reportedly as a barrow-pusher in Edinburgh's industrial sector (back when Edinburgh had an industrial sector), as a milkman, and other tough jobs prior to superstardom.  Sean Connery reportedly wanted Jason to develop a work ethic. 

Sean Connery's fortune is estimated at 85,000,000 pounds - about USD$170,000,000 - and his son Jason allegedly won't see any of it, according to Cilento, because Sean Connery has left him out of his Will.  Apparently, after a tough go of it in the 1980's, Jason works and even earns a successful living as an actor and film director in his own right. 

Perhaps the most interesting thing about this story is that a hugely wealthy and successful father forcing his son to get a job is a newsworthy story.         

Have a great day at work,

Chris Graham

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Speaking of risky U.S. investments...

Public administrators of estate monies appear to have lost around $20,000,000.  The place?  The Bronx, NY.  When a New York resident dies intestate (without a will), his or her assets are managed by these public administrators until there is a court-approved settlement.  This is roughly the equivalent of monies paid into Court in Ontario.  The investments are even overseen by a judge.  

Similar to Ontario, the monies ought to be invested in low-risk investments like Treasury bills.  But apparently that principle was ignored by the public administrators, who instead bought auction-rate securities, the market for which collapsed in February.   

The lesson?  First, nothing happens on a small scale in New York, not even in the Bronx.  Second, a "risky" investment means that one might lose money.  A tough concept to grasp?  Third, someone else always gets paid: see page 2 of the article.  Where there are investments to be made, there are fees to be paid. 

Luckily for the beneficiaries, it appears that ultimately the city (ie, the taxpayers) will pay, not the various estates' beneficiaries. 

Thanks for reading,

Chris Graham

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Blackberries and iPhones have been in the news a lot lately. These communication devices seem to have become irreplaceable for many Canadians and their frequent use is having an impact on the work place.

This past Monday, the Globe & Mail carried a story about the potential health impacts of the chronic use of these devices. Problems such as Blackberry Belly, caused by slouching when you hunch over to read your screen, and Blackberry Thumb, caused from excessive texting, were just two of the many afflictions cited by a physiotherapist and researchers quoted in the article. Aside from these physical ailments, frequent Blackberry use may also contribute to anxiety.

The use of Blackberries after regular work hours also has the potential of becoming a pertinent employment issue with employees seeking compensation for their use outside office hours. Late last month, the Globe & Mail carried a story about the writers’ union for ABC News, the Writers Guild of America. The Guild was challenging a long standing contract waiver that prevented employees from collecting overtime pay for work that was be done after work hours and facilitated via communication devices such as Blackberries.

It will be interesting to see if the changing technology will have a long term impact on employee’s work environments, or if this is much ado about nothing.

Have a nice day,

Diane Vieira

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Looking out of our office window on such a beautiful summer day, my mind drifted from blogging to golfing. I then struggled to make a connection between the world of trusts and estates, and thoughts of golfing.

The one thing that immediately came to mind was the comment of Rodney Dangerfield’s character Al Czervic from the movie “Caddyshack” that “Golf courses and cemeteries are the biggest waste of prime real estate in America.”

Looking a little deeper on the internet, I found a wealth of golf-related murder mysteries!  Yahoo hosts a group for golf mystery collectors. The Waterboro Public Library has compiled a list of well over 100 golf murder mysteries (I stopped counting at 100). 

Titles include “Death is a Two-Stroke Penalty”, “Deadly Divots”, “Death Under Par”, “Rotten Lies”, “Fairway to Heaven”, “Putt to Death”, “Par for the Corpse” and “Six Strokes Under”. There appears to be no limit to the punning.

Whether you’re reading, or golfing, or both, have a great summer!

Thank you for reading.

Paul Trudelle

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Estate practitioners are fond of discussing the “unprecedented transfer of wealth” that is set to occur over the next few decades.  The idea is that as the asset-rich baby boomers age and pass away, the number of estates being distributed (and the size of the estates) will be at a level never before seen. 

However, as an interesting article in the New York Times points out, people expecting a windfall when mom or dad die might be in for a surprise.  In his article, 8 Reasons You Should Not Expect an Inheritance, Ron Leiber points out that while the aging population might be wealthier than in generations past, people are also living longer and have higher expenses. 

Some of the issues that Mr. Leiber raises in his articles are more relevant to U.S. residents, but most have more general application; here are some of them:

1.       People are living longer.  In 2005, the life expectancy more males who reached the age of 65 was 82 while for females it was 87;

2.      Work-place pensions are becoming less common, meaning that people are more reliant on the financial markets (and their ups and downs) to generate retirement savings;

3.       The skyrocketing costs of health care will increasingly be passed to the consumer; and

4.       Divorce is on the rise, meaning that the aging retirees might be sole income, not dual income, and, thus, have greater expenses (and less wealth to pass on).

While the fact remains that the aging boomers have greater wealth than ever before, it’s worthwhile for those engaged in both planning and litigation to keep in mind the outside forces that will affect the size of an estate.

Have a great weekend,

Megan F. Connolly

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In May, I wrote a blog about a battle between the wife of a dead RCMP officer and his mother over the burial place of his remains.  The wife learned about a policy allowing an officer to be buried in the RCMP national cemetery and applied to the Director of Vital Statistics for permission to move the deceased’s body from its current place of burial (near his hometown) to the RCMP national cemetery in Saskatchewan.

The deceased’s mother objected to this and litigation ensued.  In May, the Alberta Court of Appeal held that the wife could indeed move the body if she chose.  The deceased’s mother has since indicated she intends to appeal to the Supreme Court of Canada.

Last week, CBC News reported that the Métis National Council has now become involved (the deceased was of Métis descent). 

In an open letter to the deceased’s wife appearing in newspapers in Calgary and Regina, the president of the council implored to her not to move the body, writing “I hope you will reconsider your decision to have your husband disinterred and taken away from his people and his family…His resting place is a place of honour, an enduring testament to his selfless sacrifice and an eternal memorial to his cherished place in the hearts of his family and the Métis Nation."

It is not clear whether an application seeking leave to appeal the decision has been made yet and, if it is, whether it will be granted.  If this case does end up before the Supreme Court I would not be surprised to see the Métis National Council seek leave to intervene.

Have a great day!

Megan F. Connolly

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Ah, summer is upon us, and not a moment too soon. After what seemed like the longest Spring I can remember, we finally had our first genuine summer weekend.

School’s one week from being OVER, and kids are so eager they can taste the two full months of freedom headed their way.  Camps, holidays, lazy weekends at the lake beckon.

With the European Soccer (sorry, Futbol) Championships in full force, Wimbledon and the US Open in tennis and the Beijing Olympics slated for later, not a bad time to be a sports fan either.

So, here’s to a great summer all around, for kids, families, and yes, even the lawyers.  Enjoy.

And never fear, things will get plenty serious in the fall, with Canadian and US elections either certain or very likely indeed.

Thanks for reading.

Sean Graham

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The Ontario Bar Association (OBA), Trusts and Estates Section, year end dinner was held on May 27, 2007 at the Gardiner Museum in Toronto. 

Jordan Atin, 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 2007/2008 year, was confirmed. 

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

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, Archie Rabinowitz was presented with the Widdifield Award and Corina Weigl with the Hoffstein Book Prize.

Congrats to Barry, Archie and Corina.  The venue, dinner (and particularly the Cornish Hen) and evening were all quite enjoyable.

Thanks for reading.

Craig

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Just a reminder that our next breakfast series seminar is being held on June 4, 2008.  It is being held at the Ontario Bar Association at 20 Toronto Street. 

There will be presentations on the following topics:

• "Recent Case Law Developments that Impact an Estate Solicitor's Practice" - by Ian M. Hull
• "Evidence of Intention and What to Watch for as the Drafting Solicitor: Key Issues and Update" - by A. Sean Graham
• "The Challenge of Exercising an Estate's Controlling Interest in a Private Corporation"  - by David M. Smith

The breakfast seminars are always fun and informative and I would definitely encourage you to attend.  If you haven’t already signed up and would like to, please contact Diane Labao, who can be reached at 416.369.1516 or dlabao@hullandhull.com.  If you have signed up already, we look forward to seeing you there.  

If you are interested in obtaining copies of papers that have previously been presented, they are available here.  In addition, we also offer audio CDs of our presentations. 

Have a great day,