According to this AP article, and this similar article, the World Cup will cost the German economy US$8 billion (0.27% GDP), Brazil shuts down, and as for Italy: when Italian FIAT autoworkers went on strike, by sheer coincidence the timing was 30 minutes before game time (did management even notice?); the issue was whether the workers could watch the game.  The World Cup is the fourth largest sapper of the US economy because of afternoon timing not popularity (March Madness NCAA basketball is tops).

Congrats to the Spanish champions.

Have a great and productive week,

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

Police were apparently called when staff at the check-in desk became suspicious about the elderly man in the wheelchair. He was partially hidden behind sunglasses and did not appear to be moving.  While staff were told he was sleeping, it turns out he had been dead for some time.

It was reported that the ladies were likely attempting to evade the complex and costly process of repatriating human remains abroad - bodies being repatriated by air are required to be contained inside hermetically-sealed zinc-lined coffins and kept in the cargo hold for the duration of the journey. It is also necessary for the proper paperwork to be in place.

It is amazing the lengths these ladies went to to avoid abiding by the rules and regulations one has to adhere to before transporting human remains to a foreign country. Truly a bizarre tale!

Have a great weekend,

Natalia R. Angelini - Click here to learn more about Natalia Angelini.

The Death Tax is paid by the recipients of an inheritance and is due within 9 months of the decedent’s death.   If there is not sufficient cash in the estate, personal property and business assets must be sold to pay the tax. 

As noted in one of our prior blogs, due to changes made by Congress during the George Bush administration back in 2001, the Death Tax was due to fall from 45% to 0% on January 1, 2010.  Many thought this loophole would be addressed before the start of the year. However, due to a Congressional tax standoff, no action was taken in time and the Death Tax has been repealed. However, the repeal is not permanent and the Death Tax is scheduled to be resurrected on January 1, 2010, at a rate of 55% on all assets above $1 million (the current exemption amount). 

It remains to be seen which way the political winds will blow, as Congress will likely address the issue this year. In the interim, estate planners in the U.S. are in uncharted territory, as no one can predict whether/when the Death Tax will be resurrected and if so, whether Congress will make it retroactive to the beginning of the year. This may ultimately be a matter for the courts to decide. Stay tuned!

Bianca La Neve

Bianca V. la Neve - Click here for more information on Bianca La Neve.

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

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

Some of the more significant changes are as follows:

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

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

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

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

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

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

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

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

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

Sharon Davis

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

Changes will include:

• Introducing a simplified procedure for administering small estates;
• Using the term “will-maker” instead of “testator”;
• Incorporating succession law concepts currently found only in case law (such as those that apply to adopted children);
• Granting the court the power to rectify a Will in certain situations, to ensure that a will-maker’s last wishes are respected; and
• Abolishing the presumption that a gift given by the will-maker during his/her lifetime to a child is an advancement of a gift in the will – instead, such a gift would take effect according to its terms.

The new Act is expected to come into force sometime in 2011, which will allow time for the public and legal community to review and prepare for the new legislation. 

Wills made before the new Act comes into effect will not be invalidated, but the new Act will apply to the interpretation of existing Wills. This may lead to a flurry of demands to update existing Wills, so that a will-maker’s longstanding wishes are not inadvertently thwarted by the new statute.  More information can be found at www.ag.gov.bc.ca/justice-reform-initiatives.

Thanks for reading,

Bianca La Neve

Bianca V. La Neve - Click here for more information on Bianca La Neve.

Award winners were surrounded by the women and men who supported them throughout their careers and continue to do so. Navigation of the labyrinth takes dedication, smarts and resolve, true; but a little help can’t hurt every now and then. Support from peers is a gender neutral need that is undiminished by the passage of time or the accumulation of awards. In recognition of the necessary value of that support, at the heart of the Zenith Awards was the dedication of the recipients to mentoring. Honourees were paired with young women who, over the next year, will benefit tremendously from their mentor’s experience, support and network. 

Mentoring is not only a useful “nice-to-have” for Mentees; it is the fundamental component of excellence in the profession. We have a collective obligation to our peers and society to provide the guidance and support required to ensure we continue to flourish as a respected profession.

Many thanks to Lexpert, a Thomson Reuters Business, Editor-in-Chief extraordinaire Jean Cumming, and the incomparable Paula Todd, Emcee, for providing a spectacular evening of celebration.

A little motivation for a "Mentoring Monday" as you start your week!

Sharon Davis

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

After a 5 month trial and 12 days of jury deliberations, Anthony D. Marshall was found guilty of 14 charges, including giving himself a pay-rise of $1 million for managing his mother’s finances. He faces a mandatory sentence from 1 to 25 years behind bars. His sentencing is set for December 8, 2009.

The attorney who did the estate planning for Mrs. Astor was also convicted of forgery charges. Click here to read David Smith’s blog on the attorney’s actions.

The prosecution argued that Mrs. Astor’s Alzheimer’s was advanced so far that she could not understand the complex changes to her 2004 Will or other financial decisions that benefitted her son, such as the $1 million salary.

The defence has argued that Mrs. Astor had lucid moments despite her Alzheimer’s and that she gave her only son control of her estate out of love.

The story does not end there. Mr. Marshall may appeal and the question of what will happen to Mrs. Astor’s $180 million estate has not been resolved. A civil case was postponed pending the resolution of the criminal charges against Mr. Marshall. Some of the charitable beneficiaries of the estate sent observers to the criminal trial and it are not clear how evidence it the criminal  trial will impact the civil case.

Whichever Will is eventually probated, Mr. Marshall will receive a large portion of his late mother’s estate.

Happy Thanksgiving,

Diane Vieira

Diane  A. Vieira - Click here for more information on Diane Vieira.

Specifically, when someone dies at home, a licensed professional must determine that the person is indeed dead.  While this should be arranged in advance with the doctor, the timing may not ultimately work out.  If no doctor is available, the other option is to call an ambulance…for a dead person.  There are reportedly other annoyances as well, including:

·                    the death certificate must be completed in black ink (using only certain approved diagnoses);

·                    an undertaker needs to be selected; and

·                    law enforcement must be called to establish that no foul play occurred – not an investigation anyone wants to deal with after just losing a loved one.

Mr. Sepkowitz notes that, with the active support of hospice care, savings could come from facilitating the wishes of those who choose to die at home.  He also considers what is likely the more important benefit of assuring tranquility and dignity for the person dying and their family.

Thanks for reading and have a great weekend!

Natalia Angelini

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

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

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

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

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

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

Have a good Monday.

Jonathan Morse

Jonathan Morse - Click here for more information on Jonathan Morse.

According to the New York Times report (there is a video link, too), the 90 year old, described by a cousin as a “stylin’ and profilin’” man, had always said that he had wanted to be buried that way. He was also buried with his gun collection. He had said that he didn’t want them falling into the wrong hands.

The expressed wishes of the deceased raise a number of interesting issues to consider. Some immediate include:

• Whether the directive regarding the means of burial is binding on the Estate Trustee. The rule is that directions contained in a deceased’s will are not binding on an executor. Additionally, an estate trustee is only allowed to recover reasonable burial expenses from the estate, taking into account the deceased’s position in life.
• In Canada, there are restrictions that would intervene with respect to the disposal of weapons.
• Will a Will that calls for the destruction of property be enforceable? In Wishart Estate (1992), 46 E.T.R. 311, the deceased left a will that called for the shooting of his four horses. The court found that the direction was void as being against public policy. In that case, the court referred to a Missouri Court of Appeals decision where a term in a will calling for the demolition of the deceased’s house was, similarly, found to be void as being in violation of public policy.

Have a great weekend. Keep your eyes on the road and your hands upon the wheel.

Paul Trudelle

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

“Chai Tikvah” means “life” and “hope”. 

The Chai Tikvah Foundation provides housing, support and education to psychiatrically challenged adults in Jewish residential settings to enable them to lead more productive lives, and to help them integrate into the community. The Chai Tikvah Foundation operates a housing facility in North York, and offers additional support and education to the residents, non-residents, their families, and to the community.

Special estate planning concerns and considerations arise where individuals have family members who have special needs. It was a pleasure to address some of these issues with the group.

To the Chai Tikvah Foundation, thank you for having me and for the wonderful services that you provide. Keep up the good work!

Thank you for reading.

Paul Trudelle

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

As reported in the Toronto Star and the National Post, an appeal from a 2007 arbitrator’s decision (former Supreme Court of Canada Justice Peter Cory) was dismissed.

The UK based Beaverbrook Foundation had claimed that the paintings were on loan only, whereas Beaverbrook Art Gallery of Fredricton  claimed that the art was gifted by Lord Beaverbrook in the 1950s.   Paintings sent to the gallery before 1959 were found to be gifts, whereas 48 works sent after 1959 (about 10% of the value of the collection) were found to be loans, and are to be returned.

Thank you for reading.

Paul Trudelle
 

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

Donald Marshall passed away last week in Sydney, Nova Scotia. In 1971, when he was just seventeen years old, Mr. Marshall was wrongfully convicted of a crime he did not commit and jailed for eleven years. He subsequently challenged the legal system and blazed a trail for other wrongfully convicted Canadians to fight to have their convictions overturned. His case led to a Royal Commission in 1990, which produced a slew of recommendations that fundamentally changed the criminal justice system in Nova Scotia. In 1993, Mr. Marshall again reluctantly stepped into the spotlight, when he was arrested and eventually convicted of various fishing violations. Mr. Marshall fought his convictions all the way to the Supreme Court of Canada, winning acquittals and a significant victory for the native treaty rights of his people, the Mi’kmaq Nation. 

This week, Eunice Kennedy Shriver (President John F. Kennedy's sister) passed away. Eunice Kennedy Shriver was a champion for the rights of the mentally disabled and founded the Special Olympics, which has grown into a truly global event. President Obama noted in a statement that Mrs. Shriver will be remembered as "as a champion for people with intellectual disabilities, and as an extraordinary woman who, as much as anyone, taught our nation — and our world — that no physical or mental barrier can restrain the power of the human spirit".

Thanks for reading,

Bianca La Neve

Bianca La Neve - Click here for more information on Bianca La Neve.

Our heads are becoming jammed with passwords. Almost every website service we visit requires a password. 

A few diverse posts that I have come across have looked at password usage. 

In one study, which lists the 500 most popular passwords, reported here, the top 4 most common passwords are said to be “123456”, “password”, “12345678” and “1234”.

In another report, found here, Robert Graham writes about his analysis of the passwords of 20,000 users taken from a popular website and posted by a hacker.

He finds:

-16% of the passwords matched or were based on a person’s first name;

-14% were patterns on the keyboard, such as “123456” (I thought I was the only one to think of that) or “qwerty” or “1qaz2wsx” (check your keyboard);

-4% were variations of the word “password”, such as “passw0rd” or “password1”;

-4% referred to nearby items, such as the name brand on your computer or monitor;

-3% are swear words, or terms of endearment. The F-word is particularly popular;

-35% had 6 characters, 0.34% had 1 character, 1.14% had 10 characters.

See Robert Graham’s report for more detail, and check out the “Top 500” to see if your password makes the list.

As for estate practitioners, guessing their password is easy: 9 times out of 10 it is “intervivos1”.

Thanks for reading.

Paul Trudelle

According to a Montreal Gazette report, the station plans to go to air this summer. If it is successfully, the promoter plans to launch an English language channel for the rest of Canada.

The channel will be able to air national ads. The channel will also raise money by charging a fee, as yet undisclosed, for airing the obituaries.

Gerald Dominique, the promoter, says that his channel will give family and friends an opportunity to broadcast more information about their deceased loved ones: more than what can be published in a standard death notice. “My goal is that no death goes unnoticed.”

Thank you for reading.

Paul Trudelle

Mr. Mortimer had an active professional life, and by many accounts, an active private life as well. He was first married in 1949: apparently he noticed his first wife while he rode a horse and peered over a hedge.  After divorcing around 1970, he married again in 1972.  Both wives were named Penelope, although he called his second wife Penny.

While the deceased lawyer may have organized his affairs with the requisite estate planning in place, the experience in Canada might suggest that Mr. Mortimer’s Estate will encounter some challenges not least of which may relate to copyright issues.

I refer to Lucy Maud Montgomery who died on April 24, 1942. The creator of Anne of Green Gables left a legacy of work and maybe just a few headaches for her heirs. 

After all the copyright kinks were ironed out, it seems that Anne of Green Gables has a bright future ahead of her.  With luck, and the combined efforts of lawyers and artists, Rumpole will experience similar success and longevity.

Thank you for reading.

Jonathan Morse

In May, and again in June, I blogged about the dispute over the remains of Leo Johnston, an RCMP officer who was slain along with three other officers in 2005.   

Following his death, Mr. Johnston was buried in his hometown in Alberta.  After his burial, his widow (who was also the executor of his estate) became aware of an RCMP policy allowing his remains to be buried in the RCMP cemetery in Saskatchewan.  She was granted a disinterment permit by the Director of Vital Statistics in Alberta allowing her to move the body; however, Mr. Johnston’s mother objected to the issuance of the permit. 

When the Director declined to rescind the permit, the mother applied to the court for judicial review.  When that was unsuccessful, she appealed to the Court of Appeal; the appeal was dismissed. 

The mother then sought leave to appeal to the Supreme Court of Canada; however, leave was denied in November of this past year.

At the time, the widow said she was going to wait a little bit to move the body in order to give Mr. Johnston’s mother time to come to terms with the news.  Now comes word that at the beginning of January the body was disinterred and moved to Saskatchewan. 

Incidentally, the criminal proceedings surrounding the death of Mr. Johnston and the other three officers appears to be coming to a close.  On Monday, the two men charged in the killings pleaded guilty to manslaughter. 

Thanks for reading,

Megan F. Connolly  

With the close of 2008, we turn and look to the promise of 2009. In looking ahead to 2009 many may wonder if they have properly protected and provided for those they intend to protect should something unexpected happen to them. Questions may also arise regarding whether a spouse or parent has taken steps to provide for themselves and/or those they intend to provide for.

While there are no doubt many things to consider for the new year from a family perspective, perhaps this is the year to resolve to consider, or reconsider, whether your family’s legal affairs have been properly planned.

I wish everyone a healthy, happy and prosperous 2009.

Happy New Year! Craig

Today I will briefly consider codicils - a document used to amend a Will's original text.  Ideally the use of codicils should try and be avoided, as current technology should permit making the necessary changes on a computer and simply re-printing the Will.  This also has the advantage of not making it obvious to the beneficiaries (whose gift is being depleted or removed), and also avoids the possibility of transcription errors.  However, in certain cases a formal codicil or even a holograph codicil (i.e. a very ill client) may be advisable.

In any event, avoid making changes to your Will without legal input as doing so may lead to family discord down the road if the proper formalities are not observed.  Alterations on the face of your Will should be avoided (see Paul Trudelle's blog on this issue here)  - as such alterations typically require an application for the opinion, advice and direction of the Court. 

Sarah Hyndman Fitzpatrick

Australian trust law is unsurprisingly advanced, being a fully English-speaking (sort of, anyway) Common Law jurisdiction.  The great former British colony and global trading port of Hong Kong boasts a highly-developed trust law framework based on the Common Law.   This legal system has been wisely preserved by the PRC, and is in the process of a major overhaul.  Mainland China itself has recognized the utility of trusts and passed its first trust statute.  Another former British colony, Singapore, sports a highly-developed trust law with a judiciary that pragmatically relies on Common Law developments from all jurisdictions to keep with the times.  Japan is characteristically inscrutable, but apparently recently revised its trust legislation.

Of course, it is probably incorrect to equate the mere presence of a legal structure with its widespread use.  Nevertheless, trust law is spreading, at least superficially, faster than zebra mussels.

The second thought in my mind was that a 14-hour flight, followed by 5 days of jet-lagged, dazed "vacation" on 12-hour time change, followed by a return flight just as jet lag from the away flight has worn off, followed by more jet lag from a 12-hour reverse, is not something that will be repeated any time soon.

Thanks,

Chris