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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The 85 year old son of New York socialite, Brooke Astor was convicted yesterday of grand larceny and scheming to fraud. For a background to the proceedings, click here and here.

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.

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Baseball Hall of Famer, Ted Williams is the news again as a former employee of the cryonics facility in which Williams’ body is preserved is releasing a book detailing alleged mistreatment of Williams’ remains.

By way of background, Williams died in 2002.  Within hours of his death, Williams’ body was flown to Alcor Life Extension Foundation in Arizona to be cryonically preserved in hopes of being reanimated in the future. Williams’ head was separated from his body and both preserved separately in liquid nitrogen.

In his 1996 Will, Williams requested to be cremated. However, two of Williams’ children produced a handwritten note signed in 2000 by Williams and themselves stating that they all wanted to be cryonically preserved in hopes of being resuscitated and reunited in the future.

Williams’ eldest child brought proceedings demanding that her father’s body be cremated. Their legal dispute was resolved and Williams remains frozen. Since those legal proceedings, Williams’ son has also died and been cryonically preserved in the same facility.

Alcor Life Extension Foundation, the world’s largest cryonics facility, currently has 88 people preserved and a further 905 signed on for preservation.  While cryonics is not specifically prohibited in any province in Canada, British Columbia does have a regulation prohibiting the sale of an arrangement of the preservation or storage of human remains based on cryonics and other processes with the expectation of resuscitation of human remains but does allow a funeral director to prepare a body for cryonics preservation as long as the preparation of the body is in compliance with provincial health regulations and human remains transfer regulations.

Thanks for reading,

Diane Vieira

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

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BBC News recently commented on a study published in the Lancet journal that shows more than half the babies now born in the UK and other wealthy nations will live to be 100 years old.  The data from the study indicates that these extra years would be spent with less serious disabilities for the elderly.

The researchers, from the Danish Aging Research Center, refer to “four ages of man”-child, adult, young old age and old old age. Surprisingly, there was little evidence that those who belonged in the old old age group were unhealthier that those in the young old age group likely because the frailest elderly died first leaving the more robust to survive past the age of 85. Danish and American studies show that about 30%-40% of those falling into the old old group live independently.

Of course, such a development requires countries to reform their health-care services, employment practices, and care services. In the U.K., with an election looming, the Tory party has promised a Home Protection Plan that would allow people at the age of 65 to make a one time payment plan of £8,000 pounds in exchange for free full-time residential care in later life. This proposed policy addresses the issue of the elderly having to sell their houses in exchange for funding care giving services.

A significant longer life expectancy requires careful retirement and estate planning. If this trend towards increased life expectancy continues, long standing assumptions will have to be altered.

Thanks for reading,

Diane Vieira

Diane Vieira - Click here for more inforamtion on Diane Vieira.

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October 1, 2009 was a historical day in U.K.'s judicial history, as the Supreme Court of the United Kingdom was established.

Prior to last week, the House of Lords held the judicial function as the court of last resort.
A Committee of legally qualified lords who sat in the House of Lords, known as the Law Lords, heard final appeals of court decisions.  Even though they rarely took part in political debates or voted on legislation, the Law Lords were peers of the House of Lords.

Prompted by concern and possible criticism by the European Union, due to the appearance of a conflict of interest as the officials who execute laws were those testing those laws, there was a movement to create visibly distinct legislative, judicial, and executive powers.

In 2003, then Prime Minister Tony Blair announced the creation of a judicial body to act as a Supreme Court. The Constitutional Reform Act, 2005 provides that the Supreme Court take over the judicial functions from the House of Lords. Now the Supreme Court has their own building, identity separate from the House of Lords, and blog.

The Supreme Court is the court of the last resort in all civil matters in the U.K. and criminal matters in England, Wales and Northern Ireland.

There are 12 Law Lords (with one current vacancy) who will hear appeals, with up to nine judges hearing an appeal. It will be interesting to see if the appointment of the Law Lords becomes politicized as in the United States or if this move merely re-brands the system that was already in place.

Thanks for reading,

Diane Vieira

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

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Those who follow American politics have probably heard of Roland Burris. He is controversial Governor Rod Blagojevich’s choice to replace the Senate seat vacated by President –Elect Barack Obama. While the constitutional debate continues on whether or not Burris can be seated in the Senate, another issue that has grabbed the headlines is Burris’ final resting place.

Burris has commissioned for himself a grand mausoleum consisting of two columns and three tablets referring to himself as a trail blazer and listing all his political and business accomplishments, both minor and major, with room for more to be engraved. The monument, referred to “as his resume in stone” had attracted unfavourable attention from the media and earned Burris the nickname “Tombstone”. Needless to say, it was probably not the effect Burris intended.

While many people include burial instructions in their Will, such instructions are not binding on the estate. The estate trustee has the ultimate responsibility to make burial arrangements. For those who wish to make elaborate arrangements, they should make those instructions clear to the estate trustee and other family members, so that the estate trustee is not criticized for the expense to the estate. Additionally, we can take Burris’ lead and make our own arrangement during our lifetime. Click here to read Paul Trudelle’s paper on estate issues and dealing with the body after death.

Thanks for reading,

Diane Vieira

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Wendy Reynolds from Slaw recently posted on a proposed regulatory change to the Rules of Civil Procedure with respect to the duties of expert witnesses. Coming into force in two years, the December 27, 2008 Ontario Gazette lists several amendments to the Rules of Civil Procedure including:

RULE 4.1 DUTY OF EXPERT

Duty of Expert

4.1.01 (1)  It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

Duty Prevails

(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.  

It will be interesting to see what impact, if any, this amendment will have on the duties of expert witnesses. Case law already suggests expert witnesses are already required to report in an independent manner and cannot been seen as an advocating for the party that retains them. The strength of an expert witness comes from their objective evidence and the evidence of an expert witness will be rejected if they are bias.

Does this proposed Rule merely confirm the well established principles of expert evidence as it has developed in case law or does it go beyond establishing the independence of an expert witness? Are we moving towards the use of joint experts to assist the Court? We have a few years to find out.

Thanks for reading,

Diane Vieira

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Happy New Year!

It promises to be an interesting year in estates law with exciting changes headed our way. Under the guidance of the Honourable Mr. Justice Brown, the Estates List Practice Direction is being updated and should be implemented before the end of the year.

The Ontario Bar Association is starting a listserv for Trusts & Estates section members. This email based mailing list will allow members to post questions or share their thoughts with other members. Members can expect an email later this month from the Ontario Bar Association with details on how to subscribe.

The Law Society's new client identification and verification requirements came into force on December 31, 2008. The Law Society is offering a teleseminar on January 13, 2009 to discuss the new requirements and to assist with any questions practitioners may have.

Thanks for reading,

Diane Vieira

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I hope everyone is having great holiday season.

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

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Those wishing to vary a trust in Ontario, can look to the Variation of Trusts Act (R.S.O. 1990, c. V.1) (Act) for the authority to do so. Although the Act is surprisingly only one section in length, don’t let the length fool you.

Essentially, the Act permits the Court to approve a variation of a trust under a will, settlement or other disposition on behalf of minor, unascertained, unborn or contingent beneficiaries if the variation, in the words of the Act, “appears to be for the benefit” of those persons.

While relying on the Act for jurisdiction to make a variation, there are many things to consider in pursuing a variation such as the procedure to follow and the criteria to meet in order to have the variation approved. 

In the well-known case of R v. Irving, (1975), 11 O.R. (2d) 442 (H.C.), the Court set out three criteria to consider in determining whether to approve a variation, namely: (i) does the variation keep alive the basic intention of the testator or settler?, (ii) does the variation benefit those for whom the Court is asked to consent?, and (iii) whether a prudent adult motivated by intelligent self-interest and sustained consideration of the expectancies and risks of the variation, would likely accept it?

There are a number of cases that have considered these criteria; too many to go into in this blog. Suffice it to say that the Act does provide an answer to the question as to whether one can vary a trust, but the answer is only a partial one as the Court will also consider criteria needed to be met in determining whether to approve a variation.

Enjoy the long weekend (and last of the summer), school starts next Tuesday.

Craig

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Previously, David Smith has blogged on the dispute between the Beaverbrook Art Gallery in Fredericton, New Brunswick and the Beaverbrook U.K. Foundation with respect to the ownership of the paintings and sculptures owned by the late Lord Beaverbrook. Click here to read about the background to this dispute and here to read about the costs awarded to the gallery.

You may recall that the arbitrator, retired Supreme Court of Justice Peter Cory awarded ownership of 85 out of the 133 paintings to the gallery. Justice Cory found that that artwork conveyed prior to the gallery opening were irrevocable gifts. In his decision Justice Cory referenced, amongst other evidence,  newspaper and media articles commissioned and authorized by the late Lord Beaverbrook as evidence of Lord Beaverbrook’s donative intent.

In a Notice of Appeal, the foundation accuses Cory of being biased against them throughout the hearing. Lawyers for the gallery has called the appeal baseless and state the accusation of bias were only made after the release of Cory’s decisions and have asked for the appeal to be dismissed. You can read the factum of the gallery on their website. .

At the beginning of the arbitration process both sides agreed to an appeal mechanism. Three former judges from three different provinces will hear an appeal of the arbitration decision of Justice Cory. Justice Coulter Osborne of Ontario was chosen by the gallery. Justice Thomas Braidwood of British Columbia was chosen by the foundation. Those two judges chose Edward Bayada, former justice of the Saskatchewan Court of Appeal to chair the panel. The panel will begin to hear arguments beginning in September 22, 2008.

With the foundation already ordered to pay the costs of arbitration, it will be interesting to see how costs are decided this time around.

Thanks for reading,

Diane Vieira

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An abundance of legal information is available online and a new customized search engine that searches for content from law firms has become available. We often begin a search for online information by searching Google or a similar general search engine. Fee Fie Foe Firm is a Canadian law firm search engine that searches content from law firm sites. It allows you to search for articles, newsletters, bulletins, case commentaries, and other legal information produced by law firms in five jurisdictions.

This research tools joins two other free services, Lexology and Mondaq as a way to access publications from multiple law firms in a simplified way. Both these websites provide notification of new commentaries released by law firms by jurisdiction and topic in one daily email to the subscriber.

The growing sophistication of search engines highlights how much easier it has become to find specific information online. Last week, the federal Privacy Commissioner, Jennifer Stoddart addressed reporters at a meeting of the Canadian Bar Association about her office's concerns that private information contained in federal tribunal rulings is being spread through the internet and suggested the possibility of anonymizing federal tribunal rulings. She promised to revisit the issue in October when the Privacy Commissioner releases their report on the Privacy Act.

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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The approach taken in claims by or against the heirs, next of kin, executors, administrators or assigns of a deceased can differ from other types of legal proceedings simply because the requirements of Section 13 of the Ontario Evidence Act. Section 13 states:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect to any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

In determining the nature of the evidence required then to prosecute or defend a claim, one must keep in mind that an adverse party cannot rely on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

In other words, just because the adverse party says it is so, doesn’t make it so.

Section 13 places this additional evidentiary burden on the adverse party understandably because of the estate’s difficulty in defending an action without the oral evidence of the testator. In Burns Estate v. Mellon, the Court of Appeal held that the corroborating evidence must be in addition to and independent of the viva voce evidence of the adverse party; that additional evidence could be either direct or circumstantial though.

As such, attention to the evidence necessary to prove the case and how that evidence is to be marshalled is critical in these claims, whether that be by way of an Orders Giving Directions used to compel the production of documentation that others may have (ie. testamentary documents, medical records, solicitors records, financial records etc.), by way of an examination (ie. examinations for discovery, third party examinations or a de bene esse examination) or otherwise.

Focusing on the evidence that will be needed at trial or that will be persuasive in settlement discussions is but one of the first steps in formulating one’s approach to a claim.

Canadian Olympic Medal Count: holding at 13 (but hopefully with several more to come).

Keep cheering,

Craig

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If you have recently gone on to your favourite charity’s website or received correspondence from a charity you donate to, you will likely notice an advertisement asking if you own BCE shares. 

The privatization of BCE shares means that some shareholders are now looking for a way to minimize their tax liabilities from the sale of shares. Some financial advisors have advocated  the direct transfer of the publically traded securities to registered charities as one way to minimize any capital gains.

Since 2006, charities seem to have benefitted from the elimination of capital gains for donated shares. In turn, charities have become more sophisticated and take a business-like approach to attracting potential donors of shares. By providing the contact information of a gift planner, easy to fill out share transfer forms with step-by-step instructions, and information about the advantages of share donation, charities are hoping shareholders donate their shares directly to them by presenting them with a win-win situation.

Additionally, charities are providing more information to potential donors about estate planning and the potential tax benefits of donations-in-kind, such as the transfer of shares. Charities and private foundations are sending the message to potential donors that donors can benefit on multiple levels through different types of donations and charities are there to assist them with their choices.

Enjoy your weekend,

Diane Vieira

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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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As you probably know, Hull and Hull LLP produces two weekly podcasts that discuss issues related to the estates area and estate and succession planning. Podcasting has certainly grown in the last year and there is a lot of content out there. To learn more about our firm’s use of this social medium, read Suzana Popovic-Montag’s and Ian Hull’s blog on podcasting.

Other Canadian legal podcasts include Osler Audio Reports offered by Osler, Hoskin, & Harcourt LLP that discuss a variety of business legal issues. The Canadian Bar Association provides PracticeLink Podcasts offering practice management information to its members. Law is Cool is both a blog and podcast produced by and for Canadian law students. (Podcast Episode No. 8 features an interview with Ian Hull).

Law schools are also providing a tremendous amount of information through the podcasting medium. The University of Ottawa’s Law and Technology Program was one of the first educational institutions to utilize podcasting and make classes available via podcasts. Through podcasts, many American law schools are making special lectures available to the public. Harvard Law School’s Program on Negotiation produces PONcasts offering advice on negotiation skills.

On a slightly different note, BBC Radio 4’s Law in Action is a half hour weekly podcast from the UK that discusses legal issues in the news.  

These are just a few of the legal podcast choices out there. Whether it is for education or entertainment purposes, there is a lot of information out there.  

Have a nice day,

Diane Vieira

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In yesterday’s blog I noted that in today’s blog I would mention another dependant support case decided in the post Cummings v. Cummings era.

In Reid v. Reid, [2005] O.J. No. 2359 (Ont. S.C.J.), [2008] O.J. No. 826 (Ont. Div. Ct.), the deceased was survived by her son, her daughter and her daughter’s two children (the deceased’s grandchildren).

According to the trial judge, the deceased’s daughter was a 42 year old mentally challenged individual with one of the grandchildren also being mentally challenged.

The deceased’s estate was worth approximately $200,000, consisting primarily of a house.  The deceased’s daughter and her two children resided with the deceased. The deceased’s Will left her estate equally to her daughter and son.

The daughter and grandchildren brought an application for support.

Having acknowledged the considerations set out in the Cummings decision, the trial judge found that there was a relationship of dependency such that the deceased was contributing to the support of her daughter and her two grandchildren.

The trial judge held that the son should receive $25,000 from the estate with the balance of the estate (the house) to be held for the deceased’s daughter, and on her death, the net proceeds from the sale of the house divided equally between her two children. 

On appeal, counsel for the son conceded the issue of the dependency of the deceased’s daughter and grandchildren as found by the trial judge within the meaning of the Succession Law Reform Act (s.57). Interestingly though, the Divisional Court stated:

“We also agree with the appellant…[the deceased’s son] that the trial judge fell into error by ordering that the residue of the estate pass to… [the grandchildren] without having any evidence before her as to what their needs might be at some unidentified time in the future.  Nor was there any evidence before the trial judge that either of these two applicants would still be dependant within the meaning of the Succession Law Reform Act at this unidentified future date, the date of…[the deceased’s daughter’s] death.”

The Divisional Court ordered, amongst other things, that the son be paid $25,000 from the estate (from a mortgage to be obtained on the house), the house be transferred to the daughter, the daughter and her two children may live in the house until 2018, at which time the property will be sold and the proceeds distributed equally between the son and the daughter, provided that the son’s share be reduced by the above-noted $25,000. 

Thanks for reading. 

Craig

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The intense media coverage of the raid on the polygamist ranch in Texas has also generated scrutiny of Canada’s polygamous communities.

Polygamy is against the law in Canada but there has not been a prosecution of a case in over sixty years. For a background on the issues surrounding polygamy and Canadian law, read A Polygamy Primer on Osgoode Hall’s law blog, The Court.

The primer provides a link to a collection of research policy reports commissioned by the federal government exploring polygamy in the Canadian context. While the focus of the papers is on polygamy in a criminal law and family law context, the paper by Alberta’s Civil Liberties Research Centre discusses the civil case of Yew v. British Columbia (Attorney General) [1924] 1 D.O.D. 1166 (B.C.C.A.). In the case, the British Columbia Court of Appeal gave limited recognition to a polygamous marriage that had occurred in China to allow the two surviving wives to receive their annuities from their husband’s estate at a lower tax rate.

It will be interesting to see if the possible recognition of polygamous unions in the family law context will have an impact on estates law.

Enjoy your weekend,

Diane Vieira

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Dame Anita Roddick, the founder of the Body Shop, gave away her entire wealth, approximately 102 million dollars, to various charities while alive. She only left enough money in her estate to pay the inheritance tax on those charitable gifts. Once the inheritance tax is paid, the value of her estate will be nil.

Roddick had been very vocal about her intentions to give her wealth to charities and called the idea of bequeathing her estate to her two daughters obscene. Prior to their mother's death, her two daughters were interviewed and reportedly relieved to not be inheriting their mother's wealth and supportive of their mother's charitable giving.

Needless to say, Roddick's decision to leave nothing to her two daughters sparked some discussion. David Smith's previous blog on wealthy parents and transfer of wealth discusses some of the concerns such individuals have about estate planning.

Thanks for reading,

Diane Vieira

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A Vanity Fair article published late last year writes on the relationship between playwright, Arthur Miller and his son, Daniel Miller who was born with Down Syndrome. Daniel was born in 1966 and institutionalized one week after being born and apparently while other family members kept in touch with Daniel, Miller rarely visited him or spoke of him.

When Miller died in February 2005, very few people knew of Daniel’s existence. Only one obituary notice mentioned Daniel and Miller’s own memoirs include no mention of Daniel.

Six weeks before his death, Miller made Daniel a full and direct heir equal to his other three children. While Daniel is not mentioned in the Will directly; separate trust documents, created the same day and sealed from public view, make Daniel an equal heir to Miller’s estate.

The article speculates that this was likely done contrary to legal advice as Miller’s bequest makes Daniel too wealthy to receive government assistance and a special trust was not created that would allow Daniel to inherit from the estate and continue to receive government assistance. In fact, Connecticut’s Department of Administrative Services issued a reimbursement claim to the estate for Daniel’s care since infancy and the estate is settling the claim.

Miller’s relationship with Daniel was complex and only Miller would be able to answer as to why he decided to make Daniel, who he did not publically acknowledge during his lifetime,an equal heir to his estate.

Until tomorrow,

Diane Vieira

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I read an article in this week's Maclean’s magazine that more and more of Canada's "Super Rich" are drafting family value statements. According to the article, approximately $3 trillion (though the figure varies depending on the source) will be transferred in the coming decades to the next generation. The Super-Rich are particularly concerned that their children, as beneficiaries of this wealth transfer, will take the easy way out and decide not to work or give back to the community. Warren Buffet received a great deal of press when he stated publicly that he would not leave his fortune to his children. Instead, the Bill and Melinda Gates Foundation was the recipient of Mr. Buffet’s considerable largesse. 

According to the article, a value statement spells out those values that are important to the family and can include values that speak to community, work ethic, and religion. Apparently, the Super Rich are willing to pay various consultants significant amounts of money to get the statement just right. Every family member is asked to participate so that everyone buys into the process and the statement withstands the test of time.

Whether the average Canadian family actually sits down and crafts a family value statement is debatable. However, most families will discuss informally, whether over dinner or around the campfire, the values that motivate them and help them navigate life’s many choices. 

However it is done, it makes good sense for parents to sit down with their children to not only talk about the pending transfer of wealth, but their expectations (and aspirations) as to how their children will spend their inherited wealth. It is a truism that money has always been hard to handle.

Have a good weekend.

Justin

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The census-takers tell us that our population is rapidly ageing (the need for sound estate planning seems obvious). The challenges that Canadian society faces are likely profound and there is much gnashing of teeth and wringing of hands about the future. There is a certain irony to the fact that as the information age accelerates, driven by our pervasive youth culture, our population ages.

In the above context, it is worth considering what I believe to be the motivating factor or thinking behind the Supreme Court of Canada’s (“S.C.C.”) decisions in Pecore v. Pecore and Madsen Estate v. Saylor. The two recently released companion cases were eagerly anticipated by the estate bar and addressed the transfer of property by an ageing parent into joint ownership with one of their children.

The S.C.C. made it clear that the “presumption of resulting trust” is the general rule that applies to gratuitous transfers of property into joint ownership. The onus is therefore placed on the person who received the gift to demonstrate that a gift was, in fact, intended. The court also held that the “presumption of advancement” applied to transfers of property by parents into joint ownership with their minor children. The burden of rebutting such a presumption falls to the party challenging the transfer rather than the gift-receiver.

The transfer of property by an ageing parent, particularly funds into joint bank accounts, is becoming widespread. In the context of an ageing population, Rothstein J., writing for the majority of the court, specifically addressed why the presumption of resulting trust arose rather than a presumption of a gift.

As Rothstein J. noted in his decision: “… it is common nowadays for ageing parents to transfer their assets into joint accounts with their adult children in order to have that child assist them in managing their financial affairs. There should therefore be a rebuttable presumption that the adult child is holding the property in trust for the ageing parent to facilitate the free and efficient management of their parent’s affairs”. In taking note of this stepped-up practice, the S.C.C. recognized the changing dynamics of Canada’s population and framed its decision accordingly.

Thanks for reading!

Justin

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