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

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Would it occur to you if you had nearly 200 reptiles living with you, that you really should make a Will? Recently in Ontario, this issue slithered into the Courts.  

The National Post this week reported the story of a Welland, Ontario man who died, as a result of an unexpected stroke, in May at the age of 52. Uniquely, he was survived by 200 exotic reptiles. Unfortunately, he did not leave a Will. Without a Will, there was no named executor for his estate and no directions with respect to the division of his assets or care of his exotic pets. This resulted in litigation, which only recently settled.

If you die without a Will, you are considered to have died "intestate." Simply put, this means that statutory provisions decide how your assets will be divided. Any intentions you may have had for your assets, which technically include any animals you own, are not factored into the statutory distribution scheme. 

In Ontario, if a person dies intestate, Part II of the Succession Law Reform Act governs who is entitled to their estate. As regular readers of our blog know, the order in which relatives of a deceased are entitled to inherit in an intestacy is, as follows:

1. If there is a spouse (defined as a married spouse only) and no children, the spouse takes all.
2. If there is a spouse and any children, the spouse gets the first $200,000.00 (the preferential share) of the estate.  If there is only one child, the balance of the residue is divided between the spouse and the child equally. If there is more than one child, the spouse gets one-third of the balance of the residue and the children share the other two-thirds equally.
3. If there is no spouse, the estate goes to the children equally.
4. If there are no children, the estate goes to the deceased’s parents equally.
5. If there no surviving parents, the estate goes to the deceased’s siblings equally; if a sibling has predeceased, that sibling’s share goes to his or her children.
6. If there are no siblings, the estate goes to the deceased’s nephews and nieces equally.
7. If there are no nephews or nieces, it goes to the next of kin of equal degree of consanguinity – in some cases, distant relatives who may have had no relationship with the deceased can end up inheriting. 
8. If there are no next of kin, the estate escheats to the Crown.

Having a thoughtfully considered and up-to-date Will is necessary not only to ensure that your intended beneficiaries share in your estate in a manner that it is appropriate and reflects your wishes, but also to ensure that your menagerie, should you have one, is provided for too.

Thanks for reading. Enjoy the weekend,

Saman Jaffery

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

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

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

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

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

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

Thank you for reading!

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

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

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

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

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

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

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

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

Thank you for reading!

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

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The Superior Court of Justice (at Toronto) ruled Tuesday that the accounting firm Deloitte & Touche be appointed to monitor the finances of the Toronto Humane Society. In his ruling (which does not yet appear to have been put online), the Honourable Mr. Justice Brown also ordered that the Ontario Society for the Prevention of Cruelty to Animals retain the control and care of the pets currently housed at the Humane Society. 

As some of you may recall, this past November the president of the Humane Society (who announced this week that he would resign) and four senior managers were arrested and charged with animal cruelty. In addition, the organization’s board of directors faces non-criminal charges. The matter is currently ongoing and no finding of guilt has been made against anyone involved.   

Apparently, in his ruling Justice Brown raised particular concern about legal fees the organization had incurred for seemingly non-essential reasons, unpaid hydro bills, incomplete financial statements, a decline in the value of its investments, and the fact that it had refused to disclose particulars regarding the liability insurance it carried for its directors and officers.

For those interested in the decision, generally court decisions are available on the website Canlii within a week or so of their release. 

In a statement, the Humane Society pledged to cooperate with the financial monitor and provide assistance in compiling the necessary financial information.   

Next up, Deloitte & Touche will provide the court with a preliminary report regarding the Humane Society’s finances and the court will hear argument about whether the organization’s board of directors should be removed and whether The Public Guardian and Trustee should conduct a formal investigation.

Have a great day!

Megan F. Connolly

Megan F. Connolly - Click here for more information on Megan Connolly.

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The Leona Hemsley's estate saga continues.

Last month, three animal protection groups filed a petition requesting that the court appeal a previous decision that allowed the trustees of Helmsley’s estate sole discretion to determine how charitable trust funds would be distributed. Rick Bickhram’s previous blog provides a background to this decision.

The animal rights groups allege that Helmsley’s money is not being spent the way she intended and contrary to her expressed intentions to care for the welfare of dogs. The groups object that only $1 million of the $136 million paid out to charitable organizations this year went to organizations that assist with animal welfare. A New York Times article outlines some of the hurdles the animal rights groups face. We will see how this new development plays out.

Of course, Helmsley’s Will caught the media’s attention because she left $12 million to her Maltese, Trouble. Yet, Trouble’s fortune seems small compared to Gunter III, a German Shepherd who was left $80 million by Karlotta Liebenstein, an Austrian countess. If you think that’s unusual, this blog post outlines these two dogs’ fortunes and some additional “interesting” Will bequests. Estate law is almost never boring.

Thanks for reading,

Diane Vieira 

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As, no doubt, everyone is aware, Wednesday was National Dog Day in the United States.  In Atlanta, they celebrated the day with a special groundbreaking ceremony to mark the beginning of the construction of the latest addition to the Deceased Pet Care family. 

For those who do not know, Deceased Pet Care operates funeral homes and crematories with the mission being to allow people to “celebrate, honour, remember, and cherish” their deceased pets. 

Operating out of Georgia, Deceased Pet Care offers pet funeral home ceremonies, cremations, and the opportunity for the pet to be buried in one of the pet cemeteries the company owns.  It also offers various funeral “accessories”, such as caskets and grave markers.  For those who want to avoid the stress of grieving a pet while trying to plan the funeral, the company offers “pre-need planning” for those who wish to plan in advance. 

The extent of the services the company offers is really quite impressive and its website is easily as sophisticated, if not more so, than many of the more traditional funeral homes (i.e. those who offer services for dead people).

Although it might seem like the emphasis on pets (either through commemorating them or for providing for them in the estate planning process) is relatively recent, Deceased Pet Care has obviously been well ahead of the curve – it is a family run business which has been operating for thirty five years. 

And this year, it surely should be proud – that funeral home they’ve just broken ground on in Atlanta will be the largest of its kind in the United States.

Have a great weekend!

Megan F. Connolly 

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While the global financial system totters, unemployment soars, government deficits shatter records set during the Cold War era, towns and communities fight for their lives, the global trade system appears threatened, our lifestyle looks to be set for major changes, it is reassuring to know that trust law marches on.

The states of the Great Republic to the South maintain their composure like Cool Hand Luke, calmly assessing the great issues of the day (for trust lawyers) and knocking them down like ducks at a carnival. To wit: Connecticut is set to become the forty-first state to pass a statute for pet trusts (my colleague Megan Connolly blogged on Maryland's pet trust law here).  California made time to pass its own highly evolved Pet Trust Statute last year.  Here’s a link to Pet Trust Law Blog, which has a broad range of resources on Pet Trust Law.

Ontario has yet to divert its attention to such measures.  Estates lawyers would like very much to see legislation making it possible for lawyers to meet their clients' wishes to provide for their beloved Rovers, but it appears that we may have to wait with baited breath.

Have a great day,

Chris Graham

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In Maryland, legislation was recently enacted that allows pet owners to establish trusts for their pets, making it the 40^th state to allow pet trusts.  Previously, people could not leave gifts to pets because, at law, pets were chattels and could not inherit property. 

There are some limitations to the law.  To begin with, people can only leave funds for pets living at death – they are not allowed to provide for “future generations” of animals.

In addition, while the pet owner must name a trustee for a trust, it must also name a caregiver for the pet (the caregiver and trustee can be one and the same).  If, after the pet owner’s death, the pet is not properly cared for or the trust funds are not being administered appropriately, the law will provide that an outside party can apply to the court to get the trustee or the caregiver replaced. 

The pet owner should also specify to whom the remainder of the trust should go when the pet dies (the article suggests that the caregiver or trustee should not be left the remainder, in case it becomes a disincentive to keep the pet alive). 

The law is set up so as to avoid the type of litigation that ensued after Leona Helmlsey’s death (Helmsley, as you might remember, left $12 million in trust to her dog Trouble, while leaving nothing to two of her grandchildren).  While it does not specify a maximum that a pet owner can leave in trust, it does provide the funds should be sufficient to care for the pet.  It also gives the court the discretion to vary the trust if a beneficiary challenges it as being excessive. 

I can’t say the trend towards providing for pets in an estate plan is all that surprising, given how attached people can be to their pets.   

Have a great day!

Megan F. Connolly