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Rule 74.15 - Orders for Assistance

Posted on September 8, 2009 by Hull and Hull LLP

After a long and relaxing weekend, most of us now return to work geared to face the challenges of our week. I start my blog by discussing the recent issue of the Probater.

The Probater is a quarterly newsletter that is prepared by the lawyers at Hull & Hull LLP and is provided to the community as an information service. Our most recent newsletter was released in September 2009. In the September 2009 issue, Jonathan Morse writes about the fundamental principles behind Rules 74 and 75 of The Rules of Civil Procedure, but more particularly focuses his article on the purpose behind Rule 74.15.

Rule 74.15 allows “any person who appears to have a financial interest in an estate” to obtain orders that would assist them in administering an estate. There is an abundance of case law that defines financial interest and clarifies the threshold question as to who may have a financial interest in an estate.

In his article, Jonathan does a good job in explaining the application of such orders and concludes by referring to a recent decision of the Honourable Justice Brown in Barletta v. Donne, which highlights the recent application of Rule 74.15.

Thank you for reading,

Rick Bickhram

Rick Bickhram - Click here for more information on Rick Bickhram.

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Beware of the Annuity Sharks

Posted on June 10, 2009 by Hull and Hull LLP

An article published in The Columbus Dispatch, an Ohio publication, shows us how vulnerable seniors can be to fraud through the purchase of financial products that are technically legal but not in their best interest.

An 83 year-old woman had her life savings placed in an annuity but was subsequently solicited to cash in her existing policy and buy a new one. The 83 year-old suffered from partial blindness as a result of diabetes, dementia and she had recently moved into a nursing home. After being convinced to purchase a new annuity, the woman died two weeks later. She received one monthly payment of $1,500 before she died.

The beneficiaries of her estate received half of what they thought they should have from the new annuity and sought to recover from the investment company. The arbitration panel of the Financial Industry Regulatory Authority sided with the deceased’s estate and awarded the beneficiaries of her estate compensatory damages.

The article states that this is not an uncommon practice. In January 2008, the Financial Industry Regulatory Authority fined the broker $225,000 for “making unsuitable sales of deferred variable annuities to 23 customers”.

Annuities can be great investments, but BUYER BEWARE. If there are questions about the age and health of the potential purchaser, it may not be in their best interest to purchase the annuity.

Thank you for reading,

Rick Bickhram

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Succession Planning for Lawyers

Posted on June 9, 2009 by Hull and Hull LLP

The Ontario Lawyers Gazette recently published a helpful article titled “Succession Planning Protects You and Your Clients”, which reminds licensees of the importance of planning for the future.

According to a 2006 survey, 80% of sole practitioners do not have a plan detailing who would service their clients in the event of their death or incapacity. This is an alarming number of sole practitioners who are putting themselves at unnecessary risk.

Under the provisions of the Law Society Act, the Trustee Services department of the Law Society may intervene in a practitioner’s practice and obtain a variety of orders which would have the effect of winding up the practitioner’s practice in the event that the practitioner became incapacitated or deceased. Margaret Cowtan, manager of Trustee Services states that “it can be a very intrusive and often expensive undertaking if Trustee Services is required to resort to an order to enable a practice to be wound up.”

One alternative that we can consider in planning for our future is to “name a licensed lawyer as a limited trustee in their wills for the sole purpose of winding up the practice. By appointing another lawyer as a trustee for the purposes of the practice, on death, that lawyer can not only take professional responsibility for the trust account and make appropriate distributions to clients he or she can review client files, continue matters should clients elect to engage them, or return files to clients as appropriate.” We can also give signing authority on the trust account to another lawyer in the event of an emergency. Only licensed lawyers or paralegals are permitted to deal with trust accounts.

If you are interested in learning more about planning for your future, please click the following link which will take you to the Law Society’s Succession Planning Toolkit.

Thank you for reading,

Rick Bickhram

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The Unique Characteristics of the Estate Retainer - Hull on Estates #160

Posted on May 3, 2009 by Hull and Hull LLP

Listen to The Unique Characteristics of the Estate Retainer

This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss the question of retainers. This topic comes from a seminar at the Law Society of Upper Canada where they had several practitioners in different areas come and talk about their retainers. The question of retainers is a broad question that affects all practices in a similar way.
Specifically Ian and Suzana discuss the unique characteristics of the estate retainier and some of the things they use at their firm to help deliniate their job

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

The Unique Characteristics of the Estate Retainer - Episode #160

Posted on May 3, 2009 by Hull & Hull LLP

Suzana Popovic-Montag: Hi and welcome to Hull on Estates. You’re listening to episode 160 of our podcast on Tuesday, April 28, 2009.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.

Ian Hull: Hi, it’s Ian Hull.

Suzana Popovic-Montag: And I’m Suzana Popovic-Montag.

Ian Hull: And we’re here to host Hull on Estates this week. Please feel free to give us any of your input and look for our blog on a daily basis on estatelaw.hullandhull.com.

Suzana Popovic-Montag: And if you’d like to leave us any e-mail comments, you can contact us at hull.lawyers@gmail.com. How are you today Ian?

Ian Hull: I’m okay. I’ve got a wicked cold and I understand you’ve got a car that doesn’t work so we’re both in really good moods so we’re going to use this podcast to bring our spirits up.

Suzana Popovic-Montag: Looking forward to it, Ian. Good luck to you.

Ian Hull: One of the things that we thought we’d talk about this week came out of what was a phenomenal seminar at the Law Society of Upper Canada that I attended at. And it was recently held on the whole question of retainers. And you can go to the website of the Law Society and I’m sure you can get the materials which are superb. But what they did was they had several practitioners in different areas of practice come and talk about their retainer. It was called the Annotative Retainer Agreement Series. And each of us…I was fortunate enough to be one of the speakers on estate retainers. And each of us talked about retainer issues. And of course the question of retainer is a broad question that affects all practices in a relatively similar way but there was a criminal practitioner there, there was Richard Bogoroch who was there for the plaintiff’s bar type of retainer with personal injury work. There was Sharon Shore who came from Epstein Cole did an excellent job on dealing with family law retainers. But what we thought we’d talk about today is the unique characteristics of the estate retainer and talk about some of the things that we use at our firm to help delineate our job.

Suzana Popovic-Montag: And that delineation, Ian, I think is really important, particularly to us where we focus primarily on estate litigation and we know that there are different areas in the estates Bar and there are people who will do estate administration work who can provide tax advice, the corporate advice, the real estate advice, all the kind of advice that we see typically in an estate, but that we don’t really specialize in.

Ian Hull: And the truth is the nature of the retainer is so crucial. What we try to do is we first of all delineate the nature of the retainer as best we can in the Retainer Agreement itself. We identify if there is a specific aspect of the law suit that we’re pursuing. But the other thing we try to do is follow-up with our clients and make sure that we set out in our letter to them our sort of initial retainer letter, the nature and extent of the work we’re going to do. We know that most cases settle and we know that sometimes we have to deal with administration-like steps at the other end of a settlement but we are typically sort of, in our practice anyway, focusing on the actual contentious side of the matter. And when we’re doing this though we find it’s really vital to make sure that we’ve adequately reviewed the facts from our client. And we encourage our clients to come with, when they’re first meeting, come with sort of a summary or come with some notes, maybe some point forms, so that we can start a really intense dialogue with the client to determine the nature of the retainer.

Suzana Popovic-Montag: And having our retainer sort of come with our follow-up letter after our first meeting is a little bit different than some practitioners who I know will have people sign retainers in advance. But we feel that this gives people an opportunity to have an understanding of what we think the case is all about and what we will do in terms of the provision of legal services. And also allow individuals to have the time to review our Retainer Agreement so that it’s a meaningful exchange between the two sides.

Ian Hull: Okay, so once we’ve sort of broken down the nature of the retainer itself, the next step is, of course, to concern ourselves with who are we taking instructions from. And that can be a crucial determination at the outset with estate matters. For example, what we like to do at the outset is insist that we’ll spend a few minutes going through and creating a family tree, just to determine all of the financial interests that are involved, because the legal issues will dovetail almost always into that, and keep coming back to that financial interest and who’s involved, who has a stake in the pie and how do we determine that.

Suzana Popovic-Montag: And many times we’ll have our elderly clients come in with younger clients, their children for instance, and in those cases, we want to make sure that we’re delineating between whether or not we’re taking instructions from the spouse in her capacity as estate trustee, or whether we’re acting for her in her capacity as a beneficiary of the estate, so in her personal capacity. And so knowing whether the hat that that individual is wearing will help us determine how we can best provide our services to these people.

Ian Hull: So the question of joint retainer often comes up in an estate practice and it’s a crucial determination. One is if you have say multiple beneficiaries and you’re acting for all of them and they are all in the same financial interest, i.e. they get the same no matter what the turn out of the case. That’s one thing. And then we have a typical clear joint retainer that says that everybody’s got to be on board or we can’t continue to act. But the other one is what Suzana talks about. And let’s spend a minute here on this important delineation between personal interest and fiduciary interest, and why it’s so important that we identify that at the outset with our clients.

So the personal interest, of course, comes from a typical scenario where a person might take under a Will and they have a benefit. They get part of the residue for example. And an easy example is for a son who’s appointed as executor and also gets the crown jewel of the family and that is the grandfather’s clock from their great-great-grandfather. And then he has a personal interest in the estate but he also has a fiduciary obligation to bring in the assets and administer the estate in an even-handed way. So if someone is going to take steps to challenge him from getting that grandfather’s clock, he is conflicted at some level in his role as executor and in his personal interest in getting the grandfather’s clock. So that delineation has to be looked at, and it’s a case-by-case scenario and not always does that conflict knock the son out of the box as a fiduciary. But you have to balance that interest and sometimes you have to go so far as to repair that by having that son retain separate counsel. And Suzana, maybe you can talk a little bit about that kind of strange scenario when you’ve got one individual being represented by two different counsel.

Suzana Popovic-Montag: Well Ian, you’ve set it up perfectly and that’s exactly what happens in many cases where there is a clear conflict of interest, so that we can’t act for both sides or both hats of that individual is wearing. So they will have two counsel; one representing them in their personal interest; one representing them in their fiduciary interest. And that delineation is really crucial and something that we certainly, in our firm, do our best to document to the extent that we can.

Ian Hull: And where we see the conflict, we’ll explain to the client at the outset so that they understand. While no one wants to hire another lawyer, it’s another expense and another headache; we’ll explain it very carefully to them as to why.

Suzana Popovic-Montag: And its also possible in some situations that that individual may have an interest that’s similar to other beneficiaries in the estate who have already got counsel, so that individual may also be able to act for them as well.

Ian Hull: So efficiencies can play a role in whose going to act for whom, but it can’t be ignored when there’s an obvious conflict.

Now the third part before we wrap up is really some specific aspects of our Retainer Agreement that we include. And it was interesting at the seminar to hear some of other professionals’ takes on some of what we would call the extra clauses. For example, at our firm we have an extra clause dealing with who we can sue.

Suzana Popovic-Montag: And that’s because we, at our firm, there are individuals who actually act for LawPRO and so we have to provide for the fact that we cannot sue lawyers and make that clear in our Retainer Agreement. We also include a provision in there that we will always recommend, wherever it’s feasible, the possibility of exploring alternative dispute resolution mechanisms so that individuals know that we’re there to do the best job we can in the most efficient fashion possible.

Ian Hull: And, you know, we put these clauses in for good reasons, legal reasons, but also for good practical reasons. And we want to make it clear to the clients when they come in that no one in our firm can sue a lawyer, and that’s the first part of the agreement. But secondly, more importantly, is that we are canvassing creative ways to solve the problem. And we want to bring that up at the outset so that we can start to canvass them right away. Because sometimes when you raise this clause with the client, they actually say hey, you know what, that’s a really neat idea. I was wondering if we could try something right now and maybe it’s a type of ADR, a type of alternative dispute resolution, because my brother-in-law did mention to me at the barbecue that he thought if we all had a meeting at this time and place, we might be able to talk it through but we need our lawyers there, or something like that. So it triggers the client to think through those kinds of scenarios.

Suzana Popovic-Montag: And of course, Ian, just to mention, we don’t want to forget that the Law Society of Upper Canada has imposed some client verification and identification requirements recently that we also take particular note of and we’ve taken steps to implement sort of the necessary requirements to ensure that we’re meeting what needs to be done on that end as well.

Ian Hull: Well that’s great Suzana, that’s a little capsule of some of the retainer issues that we cross in this unique practice of our estates Bar and hopefully some of the comments have been helpful. It’s been enjoyable to be back on Hull on Estates and good to catch up with you Suzana. Thanks very much for joining us today.

Suzana Popovic-Montag: And thanks to you too Ian. And to our listeners as well. We do look forward to hearing from you. You can send us an e-mail at hull.lawyers@gmail.com or feel free to visit our blog at estatelaw.hullandhull.com. Until our next podcast, thanks very much Ian.

This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Hull on Estates, Hull on Estates, Show notes, Suzana Popovic-Montag, hull and hull LLP, ian hull

Issues that Arise with an Incapable Spouse - Hull on Estate and Succession Planning #162

Posted on April 28, 2009 by Hull and Hull LLP

Listen to Issues the Arise with an Incapable Spouse

This week on Hull on Estate and Succession Planning, Ian and Suzana pick up on the last couple points on the Canadian Conference on Elder Law put on by the Canadian Bar Association conference in Kingston, Ontario on June 9, 2009. They discuss another topic that will come at the conference; the question of family law and elder law. They explore the issue that arises when a couple who is advanced in years, finds one of them to be incapable They also briefly discuss other blogs that are available for those who are interested and they mention a great place to start would be lawblogs.ca.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

Issues that Arise with an Incapable Spouse - Hull on Estate and Succession Planning #162

Posted on April 28, 2009 by Hull & Hull LLP

Welcome to Hull on Estates and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag. The podcast you’re listening to will provide information and insights into estate planning in Canada. From the offices of Hull & Hull in Toronto, here are Ian and Suzana.

Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 162 of our podcast on Tuesday, April 28, 2009.

Ian Hull: Hi Suzana.

Suzana Popovic-Montag: Hello there Ian, how are you today?

Ian Hull: Just great, thanks.

Suzana Popovic-Montag: That’s good.

Ian Hull: Okay, well our last podcast we were singing the praises of an upcoming conference by the Ontario Bar Association on Friday, June 12^th in Kingston, Ontario being about elder law and elder law issues. And we wanted to just…we kind of ran out of time on our last one and I think it’s worthwhile just picking up on the last couple of points on that. Again, we think it’s a great program, it’s going to touch both theory and practice and it’s a cross-section of disciplines. So it’s one of those conferences that are really wonderful and a great event to be at if you can be there. You know, from my perspective anyway, Mary-Alice Thompson is a leader down in that community and Professor David Freedman is an award-winning professor down in that community in the area of elder law and estates.

Let’s just touch on, we talked about assessing the assessor and that’s an interesting topic they’re going to be touching on. Another topic that they’re going to be touching on is the question of family law and elder law. And really, I mean I guess what interests me on that topic, and I’m sure this will get dealt with at the seminar because the leading practitioner in the area of family law or a leader is Phil Epstein, who’s going to be speaking at it. And the issue there where we struggle is this. In a situation where you have a married couple and one of the two of them becomes incapable. The family law issues actually become very defined at that time in some situations. And I wanted to just sort of explore that a little bit. And the whole question of separation or the like and what issues play around it. So let’s spend a few minutes today just talking about that.

So if I’m in that situation where I have an advanced years couple who one of them has become incapable, the remaining capable individual may or may not have to face these family law issues. And where they have to face it is, the question becomes, do you need to separate and/or divorce your spouse to get at sufficient assets for you to live the rest of your life? Because it may be in certain situations that, and especially in second family situations, you’ve got split assets. It works fine when you’re both capable because you share the expenses but now you can no longer do that because maybe your spouse has moved into a home and her expenses are allocated there. You’re left with this house that you have to maintain. And it worked fine in a shared environment but it doesn’t work fine now. And I’m sure Phil Epstein will touch on these issues but it is one of those striking issues that really shocks the capable spouse because you raise issues that they’re a perfectly happy couple, they’re in love in every sense and maybe the one who is incapable has not got the same ability to understand that. But you’re then putting to a capable elderly adult the proposition that economically it makes sense for you to divorce your wife while she’s alive.

Suzana Popovic-Montag: It’s remarkable those issues that arise in these scenarios are really interesting, certainly from a legal perspective. And I imagine particularly so when you’re in, as you say, a second or further marriage situation because many times we’ll see the children of an incapable person will become their guardians or their attorneys and then the question is how, if at all, that they ever provide for a step-parent in those situations. So it raises a lot of issues and I think that Phil is going to do a fantastic job flagging these for people.

Ian Hull: Well and that’s so true. And really that is the scenario, isn’t it? You get in a situation where your mother becomes incapable. You’re in a second marriage situation and the first marriage kids take over as Power of Attorney. It’s quite a natural transition. And they turn to the step-parent and say “I never really liked you and if you want any money from the fact that mom holds all the assets, good luck”.

Suzana Popovic-Montag: That’s for sure.

Ian Hull: And that is not an impossible scenario because if the capable surviving, so to speak, spouse did indeed put his or her assets into the incapable’s hands, the fight is on. And that’s where you come to those kinds of questions that are questions that nobody would be considering when they’re capable.

Suzana Popovic-Montag: It’s so true.

Ian Hull: And I guess, I mean one of the lessons is that when you’re especially in a second marriage situation, it’s worthwhile talking to your advisor and saying, okay, what if that scenario happens? It’s not impossible. It’s statistically possible that one becomes capable and one becomes incapable. How’s this going to flow out? And what’s going to happen in terms of the day-to-day care of both the incapable parent and the step-parent? So worthwhile exploring.

The other issue that I thought was a fascinating topic that they’re going to be dealing with is questions of criminal law elements of the elder law. And really that comes down to the whole issue of elder abuse. And what sanctions are available beyond the Civil Courts, and that is the criminal sanctions.

Suzana Popovic-Montag: And we’re hearing more about this as well, too, because of the advancements in technology and the media and social media in particular, more so than we ever did before. So a lot of attention is being put on this issue and particularly given the increase in the aging population.

Ian Hull: And we saw, I think, two years ago when we went to the Canadian Conference on Elder Law, they had a whole division of two or three police officers there, speaking and talking about the special units that are being set up all over the country to specifically deal with elder abuse and to use the Criminal Code sanctions which are much stronger, much more powerful and much more effective to stop someone who is draining all of the money from an elderly person, or a rogue individual who has intruded into the lives of that person. The police have the power to do that from a statutory standpoint.

Alright, well as we say, we think it’s going to be a great conference and one of us may even be heading down to it if we can get ourselves organized. But I’m pretty sure it will be a terrific conference for those who get there.

The last thing we wanted to cover in today’s podcast was mix it up a bit. We’ve talked about some legal substantive issues and we also, as zealots about the social media world, we wanted to spend a few minutes on just, for those who know that’s fine, there may be a little refresher for those who don’t know. What other blogs are available? We at Hull & Hull do a daily blog and we’re proud of that daily blog, but it is on estate-related issues. And it may be that some people want to get more expanded and look into other issues. And so we just remind everyone that there’s a great site to start with, and that’s lawblogs.ca.

Suzana Popovic-Montag: And frankly, it’s amazing how many law blogs there actually are. I know when I looked at that recently and compared the list to even last year, how it’s just exploded in terms of the number of people who are actively and continuously blogging. It really is quite amazing.

Ian Hull: Oh, it’s fascinating. And it’s really, you know if you go through it. I guess it’s hard to pick favourites and there are literally pages of choices on this. And a lawyer in our office, Sharon Davis, who’s our knowledge management lawyer and knowledge management is an issue we’re going to be talking about at our next podcast, a lawyer at our office, she brought this list to our attention. But I guess we can’t do justice to Canadian law blogs without talking about the hero of log blogs and that’s Rob Hyndman and we’ll have Rob’s law blog link on the show notes. But he practices in technology and business law but he is the true leader in this area. We’re fortunate enough to work with his sister, Sarah Fitzpatrick, and she is of course a big fan of her brother but has always been a real leader in this area too, and been a big help around here to help us work through the blog technology.

Alright, well I think that covers up our topics today. We encourage you to look at the link for the elder law conference. We encourage you to look at the link for the lawblogs.ca and we look forward to our next podcast. Thanks very much Suzana.

Suzana Popovic-Montag: Thanks to you Ian.

You have been listening to Hull on Estates and Succession Planning by Ian Hull and Suzana Popovic-Montag. The podcast that you have been listening to has been provided as an information service. It is a summary of current issues in estates and estate planning. It is not legal advice and you are reminded to always speak with a legal professional regarding your specific circumstance.

To listen to other Hull & Hull podcasts, or leave any questions or comments, please visit our website at hullestatemediation.com.

Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Show notes, Suzana Popovic-Montag, hull and hull LLP, ian hull

Social Media and the Canadian Conference on Elder Law - Hull on Estate and Succession Planning #161

Posted on April 22, 2009 by Hull and Hull LLP

Listen to Social Media and the Canadian Conference on Elder Law

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the idea of knowing what is going on around us in social media. They mention the Canadian Conference on Elder Law put on by the Canadian Bar Association conference in Kingston, Ontario on June 9, 2009. One of the first topics at the conference will be on assessing the capacity assessor. Ian and Suzana discuss assessing the assessor and the pros, cons and what should be expected. They talk about what they see in their practice as important elements of a good assessment and where they might see some problems.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

Social Media and the Canadian Conference on Elder Law - Hull on Estate and Succession Planning #161

Posted on April 22, 2009 by Hull & Hull LLP

Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 161 of our podcast on Tuesday, April 21, 2009.

Ian Hull: Hi Suzana.

Suzana Popovic-Montag: Hi Ian, how are you today?

Ian Hull: Just great, thanks.

Suzana Popovic-Montag: That’s good.

Ian Hull: Excited to be podcasting today. I did actually manage to get away for a couple of days last week and took my iPod touch with me when I travelled and got caught up on our video because I sometimes don’t get a chance to listen to us on the video and see how it goes and it was kind of fun. So I was re-invigorated with some new ideas of how we should be presenting.

Suzana Popovic-Montag: Right.

Ian Hull: And one of the ideas that I thought would be useful is a big part of what we’re trying to accomplish with our podcasts and video and audio blog is more of, from a succession planning, estate planning perspective, we try to touch on general topic areas. So I thought what can be helpful is to know what’s going on around us. We’re in the social media community, we obviously want to spread our word and they want to spread other’s words. But one of the conferences that’s coming up that I thought was of real interest to those in our field is this Canadian Bar Association Conference and its coming up. And the neat thing is its coming up in the great town of Kingston, Ontario which hosts the Podcasters Across Borders Conference every June which is a fantastic social media conference.

Suzana Popovic-Montag: And you go to that every year, don’t you?

Ian Hull: I try to. I don’t know if I’ll be able to make it this year because of a family commitment but it’s a great conference on the social media side. The organizers have put together, it’s an Elder Law Conference. And I guess the title of it is The Canadian Conference on Elder Law, put on by the Canadian Bar Association. But what I thought was of interest was some of the topic areas. And it’s neat to see what are these hot topics in the area of elder law and where people are sort of discussing. We have been out to the Canadian Conference on Elder Law in Vancouver for a few years now in a row. A terrific conference and really the leading Continuing Legal Education conference in the country. And now its being sort of…and this isn’t the first year that this group has done it…it’s sort of being repeated in some ways with great speakers in the Elder Law Conference in Kingston.

Suzana Popovic-Montag: And its interesting, Ian, with these conferences, they’re not just for lawyers either and some of them are geared to have certainly a legal component to it but there is also you know the police aspect to elder abuse kinds of issues. There are medical individuals, medical professionals, who come to these conferences. There’s a wide cross-section of people in addition to lawyers who are actually taking notice of the issues that arise in this whole area.

Ian Hull: Absolutely and the organizers we know well, its Mary-Alice Thompson from Kingston and Professor David Freedman from Queen’s University. The conference is theory in practice and because the area of elder law touches both professionals and all various schemes of professionals, the theory in practice theme is really quite interesting. And one of the first sessions that they’re talking about is assessing the assessor. And we learned a lot about that quite some time ago in the Re Koch decision which will be in the show notes about what the Courts started to expect about an assessor but that decision is now over a decade old and so its really fascinating dialogue because the question of assessment of the capacity, the whole expectation is so fundamental to elder law. Because as we know, a finding of incapacity must be made before we can get a guardianship appointment if you go to Court to get a guardian appointed. And typically a lot of people will say they don’t want their Power of Attorney acted on until there’s a finding of incapacity.

Suzana Popovic-Montag: That’s right.

Ian Hull: So that capacity assessor is front line the most important person in the food chain of unloading into this world of incapacity. And it happens to be the first topic of the seminar they’re going to be doing down in Kingston, this whole question of assessing that capacity assessor and what are the pros, the cons, what should be expected and so on. So I thought maybe we could take a couple of minutes talking about what we see in our practice as important elements of a good assessment and where we might see some problems with the assessment.

Suzana Popovic-Montag: And that’s a great idea, Ian, because I know in our companion podcast, Hull on Estates, some of our lawyers have spoken just recently on the issue of capacity assessments and assessors in particular. And given how important the ultimate finding by an assessor can be, and how it can actually take away one’s liberties, to make sure that that process is properly carried out by someone who’s qualified and knows the legal requisites for a finding of a capacity, I think is just crucial. And I know you’ve written actually about the topic in the past and I believe it was Hilary Laidlaw, one of our colleagues, has sort of coined a phrase where an assessor has got to probe and verify as part of their testing for capacity. And maybe we could just flush that out a little bit.

Ian Hull: Well absolutely because you see really, like you say, its this moment in time where you are going to eliminate freedom essentially to do what you want to do, that the Courts are going to be very sensitive to. And so as you say, Hilary Laidlaw has been a big proponent of this concept that you need to take 2 steps in the process. You need to ask the right questions and then you need to verify if those answers make sense and that they are indeed true. And we’ve had podcasts in the past and we’ve talked a lot about the recent Law Society rules about verifying clients. And it’s the same thing. You identify, so you probe, you ask who is your uncle and who is your aunt and maybe ask some questions about their abilities to cognitively follow you along. And then you follow-up with some verification. And if, after your meeting, you find out that she was talking about Stephen Harper’s aunt and not her aunt, then the bells go off. So that’s very true and it’s a good way of looking at it in terms of the analysis, that high expectation to probe and verify in the context of the Courts who are just simply not going to allow you…they’re not going to allow themselves to make a finding of incapacity unless its clear.

Suzana Popovic-Montag: That’s right.

Ian Hull: Because of the human impact of that. I mean, you’re handcuffing this person and they’re not easy handcuffs to get out of.

Suzana Popovic-Montag: That’s for sure.

Ian Hull: And we have seen in the past where people want to get out of that, they want to set aside a finding of incapacity and in Ontario we have a whole Board, the Consent and Capacity Board where people can go to. And it’s a hearing and it’s a really well done process. The hearing officers are superb and the process is very, in a sense, user-friendly. But I mean again, once you’ve made that finding of incapacity, it’s very hard to let it go. And then of course if a judge makes that finding of incapacity, it’s even harder.

Suzana Popovic-Montag: That’s right.

Ian Hull: So one of the things I guess I would say as I was looking to assess the assessor is also look at the source. I mean there’s nothing like delegating to good, authoritative, well-versed people. And you’re essentially delegating a serious part of the process, whether you’re caring for your mother or father or whether you’re asking as a lawyer or whatever, who you’re going to outsource that job to, you want to make sure is well qualified. And an easy starting point in Ontario anyway which is great is the Ministry of the Attorney General has a list. And there’s an assessor’s list that we can go to. So that’s a good starting point and then we can start to look at their qualifications and not be afraid to Google and do all the sorts of things to test it, ask around, like any professional you’re going to get involved. You’re essentially going to a specialist. And if you’re going to a specialist, you want to, I think anyway, to say to my clients look, make sure we know who we’re getting ourselves into.

Suzana Popovic-Montag: And the reason that’s so important, of course, is because the question or the whole threshold of capacity is a legal concept that has to be explained to people who aren’t necessarily qualified as assessors to do the determination. And many times we’ll see people go to their family doctors to get an assessment of capacity and you want to make sure in those situations that the doctor, even though they are a long-term doctor or a long-term care giver, that they know what is actually required for that finding. Because it’s very specific and important.

Ian Hull: Absolutely. Alright. Well, we’ve assessed the assessor. We’ve talked about this terrific conference that’s coming to Kingston. And I guess if somebody might ask, it’s Friday, June 12^th, 2009 and its being put on by the Ontario Bar Association, Continuing Legal Education in the Elder Law section. It’s called Elder Law: Theory and Practice. We may have some more to say about this upcoming conference because of the interesting topics that are going to be canvassed.

So thank you very much for joining us today and thank you Suzana.

Suzana Popovic-Montag: Thanks very much Ian.

To listen to other Hull & Hull podcasts, or leave any questions or comments, please visit our website at hullestatemediation.com.

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Henson Trusts - Hull on Estates #159

Posted on April 21, 2009 by Hull and Hull LLP

Listen to Henson Trusts

This week on Hull on Estates, Rick Bickhram and Sarah Fitzpatrick discuss Henson trusts (also called absolute discretionary trusts). They consider the use of such trusts to benefit disabled persons, and how best to protect the assets (typically an inheritance) as well as the right to collect government benefits and assistance."

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

Henson Trusts - Episode #159

Posted on April 21, 2009 by Hull & Hull LLP

Sarah Fitzpatrick: Hello and welcome to Hull on Estates. You’re listening to episode 158 on Tuesday, April 21, 2009.

Rick Bickhram: Hi and welcome to another episode of Hull on Estates. I’m Rick Bickhram.

Sarah Fitzpatrick: Hi and I’m Sarah Fitzpatrick.

Rick Bickhram: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Please e-mail us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Well I believe this is the first time Sarah and I are podcasting. How are you doing today, Sarah?

Sarah Fitzpatrick: I’m doing well, Rick. How are you today?

Rick Bickhram: I’m not doing bad, I’m trying to enjoy the weather. Unfortunately today it looks like its raining so there’s only so much enjoyment you can have.

Sarah Fitzpatrick: That’s right, but it looks like the beautiful weather is just around the corner this weekend, so we can hope that spring is finally just around the corner.

Rick Bickhram: I know and I’m excited for it.

So today we’re going to be discussing trusts, more particularly we’re going to be focusing on the Henson trusts.

Sarah Fitzpatrick: That’s right. Today, Rick and I thought that we’d talk about a specific kind of trust that actually comes into play quite frequently in estate planning and it really concerns the type of trust when you are looking at a disabled beneficiary. And specifically, do you want to talk a little bit about what the Henson trust is designed to achieve, Rick?

Rick Bickhram: Well Sarah, I understand that the Ontario Disability Support Program - its exactly what it says it is. It’s a support program and the Henson trust is designed to prevent disentitling any beneficiaries who may be entitled to support under the Ontario Disability Support Program Act.

Sarah Fitzpatrick: That’s right. And we’ll call that the ODSP benefit, because we’re going to be mentioning that a lot during this podcast. And that’s right. Specifically it protects the assets, which in the context that we’re going to be referring to today, its typically an inheritance. And it protects those assets as well as the right to collect future government benefits. So not only it protects income but it also protects government benefits and assistance. So it basically is ensuring that the beneficiary, when they receive income from the trust - income or capital from a trust - that by receiving such income or capital, that they’re not going to be disentitled from any assets that they are receiving from the ODSP. Now essentially to qualify for ODSP benefits, there are certain exemptions. You can’t exceed certain benefits or you’ll be disentitled to those. So there are certain specific restrictions and specifically, Rick you can go through those restrictions right now. One of them, for example, is you cannot have assets valued at more than $5,000. You cannot receive gifts or other voluntary payments that exceed more than, I believe it’s $4,000. It may have been recently adjusted upwards to $5,000 over a 12 month period. There are other exceptions as well.

Rick Bickhram: I understand those exceptions to be, well first of all, this is when we’re calculating the value of the person’s assets.

Sarah Fitzpatrick: That’s correct, that’s right.

Rick Bickhram: And the person being the beneficiary of the ODSP entitlement. So when we’re valuing the assets, some assets that will be considered exempt in determining what your total assets are, a principal residence, I think there are public policy reasons why a principal residence may be exempted.

Sarah Fitzpatrick: That’s right. And just to clarify on that principal residence, the value of that has no bearing on it whatsoever. It can be valued, for example, at $100,000 or it can be valued at $2,000,000 but if the disabled beneficiary does own a principal residence, that is not considered part of the calculation when determining whether you’re eligible for the ODSP benefit. So that’s right. And so what are some of the other assets that are not included in the calculation of the value of assets under the general rule?

Rick Bickhram: A second property. Apparently the beneficiary may be entitled to a second property if approved for the health and well-being of the recipient. A third item that is exempt from the calculation of assets if a motor vehicle. And as Sarah described with the principal residence, there is no value of this vehicle that the beneficiary may be cut off at. So he could be driving a Hyundai or he could be driving, I don’t know, what’s a good car nowadays? A Bentley?

Sarah Fitzpatrick: And that’s right. And there’s one further thing there as well. A pre-paid funeral of any value. So all of those items essentially aren’t going to be included in the calculation. There is one other important exception as well. The disabled beneficiary can also have a vested interest in a trust provided that the assets in that trust do not exceed $100,000. And that can be an inter vivos trust or a testamentary trust. But that cannot exceed $100,000. So then we’re left with the situation where you have these specific exemptions that we’ve just discussed. Perhaps you have assets that will exceed the $100,000 mark and you’re trying to determine how you can gift these assets, perhaps in your Will or as we said, it can be an inter vivos trust as well. How do you gift those assets to the beneficiary without disentitling them to the ODSP benefits? And that’s where the nature of this Henson trust becomes critical and the use of a Henson trust can actually benefit the beneficiary so they can actually maintain their ODSP benefits.

Rick Bickhram: That’s correct Sarah. And I believe what a Henson trust is essentially, it’s a completely discretionary trust and there’s two points on this discretionary trust that are looked at. And I like to refer to them as the “when” and “how much”. In this completely discretionary trust, the trustees have complete discretion as to when to make a distribution. So again, that’s time. And how much, as to the quantum of the distribution. How much are they going to distribute to the beneficiaries? Again, those two points must be absolutely in the trustee’s discretion to be characterized as a Henson trust.

Sarah Fitzpatrick: That’s right and if it doesn’t include that absolute discretionary nature, then it’s not going to be considered a Henson trust. So the absolute discretionary nature means as Rick said, it’s not only the quantum, how much can be distributed. It’s timing. So essentially its going to empower your trustee or your trustees to distribute little or even none, arguably none. So what that creates then, what that trust creates is it creates no vested interest whatsoever in the beneficiary. So the trustee, because they’ve got this discretion, the beneficiary cannot claim that they have any absolute entitlement to the funds. They have no vested interest whatsoever. So arguably the trustee could distribute none of the income or none of the capital at any time throughout the lifetime of the trust, for the benefit of the trustee. Now that brings up an important point because of this all-encompassing discretionary nature of the trust. You want to make sure that you’ve got absolute, complete faith in who you choose as your trustee because there is, obviously, the potential for abuse.

Rick Bickhram: I have a question for you, Sarah.

Sarah Fitzpatrick: Sure.

Rick Bickhram: Let’s say that I am setting up, I’m designing a trust, a Henson trust.

Sarah Fitzpatrick: Right.

Rick Bickhram: And I have 2 children. One of my children is disabled and so I’m looking out for the disabled child’s benefit. I create the Henson trust. And I name my second child, who is not disabled, as the trustee.

Sarah Fitzpatrick: Right.

Rick Bickhram: What type of conflict could you see arising from that?

Sarah Fitzpatrick: Yeah, that’s a really good point because when you’re choosing your trustee, often in this type of a context, you’ve got the testator that says well I’d really like to appoint my other child because that’s the individual in whom you might have the most trust. And also it’s a good idea to have somebody that’s around the same age, perhaps as the disabled beneficiary or younger than, because this trust is going to be designed to last throughout the lifetime of the beneficiary. So the potential conflict there, if you do appoint a sibling, an important provision in this trustee is going to be your residual beneficiaries. And you’re going to have to have somewhere in that trust provision for where the capital of the trust is to go when the beneficiary passes away. And most likely you’re going to have that going to your other children. So you can see right there that that’s got to be very carefully considered because that can be a very powerful conflict of interest if you have one disabled child and you’ve got a Henson trust set up for them and you’ve got the other child as the trustee of the trust, and they’re also the residuary beneficiary of the trust. That’s obviously going to be a pretty powerful conflict so you’ve obviously got to keep that in mind as well.

I think other issues we can maybe touch a little bit on, there was an important case where they considered what happens with income as opposed to capital. In that case, the alleged Henson trust had all the income actually being distributed out to the disabled beneficiary. And the Court actually found that that precluded that from being a Henson trust because there was a vested interest in the income. So its really important when you’re drafting this kind of trust as well to have regard to where that income is going and you want to make sure that there’s a provision to distribute none of the income to the disabled beneficiary and perhaps sprinkle it amongst someone else, some other beneficiaries as well. So there’s all kinds of things that need to be considered when you’re looking at this Henson trust but it can absolutely be a really vital estate planning tool in the appropriate context.

Rick Bickhram: I think that brings us to an end of this week’s discussion. Thanks for listening and thanks for joining me today, Sarah.

Sarah Fitzpatrick: It was a pleasure, Rick. And I look forward to podcasting with you again soon.

Rick Bickhram: And we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the show. I’m Rick Bickhram.

Sarah Fitzpatrick: And I’m Sarah Fitzpatrick. Until next week, so long.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Hull on Estates, Hull on Estates, Rick Bickhram, Sarah Fitzpatrick, Show notes, henson trusts, hull and hull LLP

The Role of the Office of the Public Guardian Trustee - Hull on Estates #158

Posted on April 14, 2009 by Hull and Hull LLP

Listen to The Role of the Office of the Public Guardian Trustee

This week on Hull on Estates, Diane Vieira and Bianca La Neve discuss the role of the Office of the Public Guardian Trustee (PGT) in passings of accounts. They talk about the role of this government body, whose job it is to protect the interests of incapable persons, charities and absentees.

They discuss the things to keep in mind when serving the PGT and common issues seen on passings of accounts

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

The Role of the Office of the Public Guardian Trustee - Episode #158

Posted on April 14, 2009 by Hull & Hull LLP

Diane Vieira: Hello and welcome to Hull on Estates. You are listening to episode 158 on Tuesday, April 14^th, 2009.

Diane Vieira: Hi and welcome to another episode of Hull on Estates. I’m Diane Vieira.

Bianca La Neve: And I’m Bianca La Neve.

Diane Vieira: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. You can e-mail us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Hi Bianca.

Bianca La Neve: Hey Diane. Today I thought we could talk about the role of the Office of the Public Guardian and Trustee in passings of accounts. We usually talk about passings of accounts and the roles of estate trustees and beneficiaries and what can be expected in passings but I thought today it would be interesting to touch upon the role of this government body, the Office of the Public Guardian and Trustee, who’s role it is to protect the interests of incapable persons, charities and absentees.

Diane Vieira: Yes, I think if you practice in the area of estates and you will be preparing or advising clients on their passings of accounts, you will certainly deal with this office sooner or later.

Bianca La Neve: Yes, good point. Now in terms of an overview, the Office of the Public Guardian and Trustee, or the OPGT - we’ll short form it during this podcast - may be required to be served with a passing of accounts application when an incapable person, an absentee or a charity has the beneficial interest in an estate or trust or the guardian or attorney of an incapable person or absentee applies to pass their accounts.

Diane Vieira: Yes, when an incapable person is a beneficiary of an estate or a trust and the estate trustee applies, either compelled to or on a voluntary basis to pass their accounts, the PGT is required to be served if the incapable person doesn’t have a guardian in place to review those passing of accounts.

Bianca La Neve: That’s right. And if you’re…so if there is a guardian or a trustee with authority to act, then the Office of the Public Guardian and Trustee doesn’t have to be involved. But if there isn’t, as Diane mentioned, and you do have to serve the Public Guardian and Trustee, you also then have to serve the incapable person.

Diane Vieira: Yes you should send a copy of the accounts to the incapable person.

Bianca La Neve: Now in some cases, in some situations there may be an incapable person with an interest in an estate or a trust but there’s actually no person willing or able to act as their litigation guardian for the purposes of the passing of accounts. So if there is no one willing to act or there’s no other person in the estate that has a similar interest that could indirectly protect the incapable person’s interest, then the Office of the Public Guardian and Trustee will perform the role of litigation guardian as a last resort.

Diane Vieira: And one other situation where you should serve the Public Guardian and Trustee is when the estate trustee or the trustee is also the guardian of the person. In that situation, you do have to serve the PGT because the guardian is not going to review their own potential errors.

Bianca La Neve: They’d like to. But they’re not able to. And in these types of situations there’s no real obligation to serve the incapable person but its always good practice to give them a copy of the application as well.

Now we’ve talked about situations where the incapable person as interest in an estate or trust and so we’ve talked about if the incapable person has a guardian but that guardian is also the estate trustee or trustee, then the Public Guardian and Trustee has to be involved. If that incapable person does not have a litigation guardian or someone able to protect their interest, then the Public Guardian and Trustee is involved. And another situation where the Public Guardian and Trustee is necessarily involved is when a guardian or an attorney for property is applying to pass accounts.

Diane Vieira: And in that situation, the incapable person should be served as well and referring to Rule 74.18(3), each person that has a contingent or vested interest in the incapable person’s estate including spouses and adult children and dependant children…well no, actually, dependant children have to be served. And as a matter of practice, you should probably serve the adult children as well.

Bianca La Neve: They’ll probably want a say in the application.

Diane Vieira: Yes.

Bianca La Neve: Now an interesting twist involves an incapable person who is a minor and a minor in Ontario, or for the purposes of Ontario law, is defined as a person under the age of 18. When the incapable person is a minor and has an interest in an estate or a trust, and they do not have a guardian or an attorney for property, then you are required to serve the Office of the Children’s Lawyer but not the Office of the Public Guardian and Trustee. So in this type of situation, the Children’s Lawyer’s Office would be involved to protect the interests of the incapable minor.

Diane Vieira: And just in some situations where you’re serving both the PGT and Office of the Children’s Lawyer, you should serve both but usually the Office of the Children’s Lawyer, the PGT, will have only one office respond to the application, usually the beneficiary who has the bigger interest.

Bianca La Neve: Now Diane, perhaps you can talk about situations involving incapable people or persons who are actually deceased.

Diane Vieira: Yes that’s a good situation if you’re not sure to serve the PGT. Generally when a guardian or an attorney passes their accounts for a deceased incapable person, service should go to the estate trustee or the person who’s administrating the estate. So there is no requirement to serve the PGT unless the PGT is the estate trustee or there is a Court Order that the PGT has to be served.

Bianca La Neve: So generally the role of the PGT it looks like ends with that incapable person’s passing.

Diane Vieira: Yes.

Bianca La Neve: So now we’ve talked about incapable persons. The Office of the Public Guardian and Trustee also has a role to play in cases involving interests of absentees. Now an absentee is a person who’s whereabouts are unknown and there is no knowledge as to whether this person is alive or dead. And this is different. An absentee is different from an unborn or unascertained person. That type of person usually refers to an issue who if born would be heirs under a Will. And so in the cases of unborn or unascertained individuals, the Office of the Children’s Lawyer would be involved. In cases of absentee persons, the Office of the Public Guardian and Trustee is involved.

Diane Vieira: Yes and when you’re serving the PGT and there’s an absentee person involved, the PGT will require evidence that you have made an effort to search for this person. In our practice generally, depending on how much money is in the estate, we do go ahead and get an investigator and swear an Affidavit as to those efforts.

Bianca La Neve: Very good point. Because also, even if the Public Guardian and Trustee, let’s say, is satisfied as to your efforts to find absentee people, a judge on a passing is still entitled to ask you questions and to satisfy him or herself that sufficient effort has been made to locate this person.

Diane Vieira: Another situation in which the PGT is required to be served is when a charity or a charitable trust applies to pass its accounts or an estate trustee applies to pass their accounts in relation to a Will or an estate that has a charitable bequest.

Bianca La Neve: And those types of situations, if you actually have a specific named charity, then they’re also required to be served.

Diane Vieira: Yes. Generally when there is a named charity, that charity is served and they’re responsible to review these accounts and if they need to, hire their own counsel. When the PGT becomes involved is when a Will is, for example, very general. It says this bequest to the education of children and the decision is left to the estate trustee to later choose a charity. So when it’s a charitable bequest, and not a specific named charity, is when the PGT will actually participate and review the passings on behalf of the general charitable bequest.

Bianca La Neve: And I think that was probably a policy decision with the Office of the Public Guardian and Trustee. They obviously have oversight authority or supervisory role over all charities in Ontario. But because of the mass number of charities involved, and the mass number of Wills in which specific charities are named and are given bequests, then its sort of a policy decision for the Office of the Public Guardian and Trustee to be involved only when, as Diane pointed out, it’s a sort of general charitable intent in the Will and not a specific named charity. Because in those situations, the Public Guardian and Trustee’s position is that the specific named charity is a legal entity and can properly represent its own legal interests.

Diane Vieira: I think we should just review some things that you should keep in mind when you’re serving the PGT and who to serve. First of all, you should serve the Toronto office unless a previous arrangement has been made otherwise with one of their satellite offices. And if you are serving on behalf of a charitable interest, its good to include that your account is going to the attention of the Charitable Property Division, just so things happen a bit more quicker.

Bianca La Neve: And there is a specific provision in the Rule 74.18(4) that requires 45 days’ notice of an application to pass accounts. And the Office of the Public Guardian and Trustee is quite strict about enforcing this minimum notice requirement. They are served on a daily basis with multiple passings of accounts and so they require the time to be able to review the accounts and devote the appropriate amount of time and attention to each particular passing. So make sure you comply with the 45 day minimum notice period.

Diane Vieira: And with that in mind, as you say Bianca, they are a very busy office with a lot of passings of accounts to review so in order to make things as efficient as possible, you should include a Notice of Application to pass accounts in the proper form. So you should include your accounts in the proper form, an Affidavit of Verification, any Will or guardianship or Power of Attorney documents, the last Judgment for the passing of accounts. Don’t just assume that they’ll have reference to it. Any relevant Orders. A draft Judgment would also be good to include. And don’t send all your vouchers in. They will request the ones they need to see.

Bianca La Neve: That’s right. Again its about trying to make the process easier for them but not necessarily overloading them with information that may or may not be relevant or may or may not assist them.

Now just quickly, we can touch on some common issues seen on passings of accounts. We won’t do an exhaustive review here. That’s probably been done in other podcasts. But generally when the Public Guardian and Trustee will come back to you and ask for more information is in situations where there has been a failure to keep adequate accounts, when the accounts don’t balance. I mean, this you would think is self-explanatory but you should actually make sure that your accounts balance before you provide a copy to the Public Guardian and Trustee. If there’s insufficient description of any transactions that don’t allow on its face the Public Guardian and Trustee to understand what’s going on, and when there are legal accounts and accounting invoices, you should have sufficient information to adequately distinguish between executor’s work as the case may be, and professional services rendered.

Diane Vieira: And also they will review the compensation issues if you’re charging compensation on things that are basically book entries when there’s a net loss on investments and to prepare the incapable person’s income taxes, for example.

Bianca La Neve: Okay Diane, I think that covers sort of a basic review of the role of the Public Guardian and Trustee in a passing of accounts.

Diane Vieira: Yes its an important office. And just I guess if I had to leave with one thought is they are very busy and it can be a time-consuming process so make sure everything is in order and serve them as soon as you can.

Bianca La Neve: Great. Thanks Diane.

Diane Vieira: Thanks Bianca.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Hull on Estates, Hull on Estates, Show notes, Suzana Popovic-Montag, hull and hull LLP, ian hull

What Do We Expect From Our Clients? - Hull on Estate and Succession Planning #159

Posted on April 7, 2009 by Hull and Hull LLP

Listen to What Do We Expect From Our Clients?

This week on Hull and Estate and Succession Planning, Ian and Suzana discuss what we expect and what we can expect from clients. This topic was prompted by the recent changes by the Law Society to the bylaws in terms of what to ask clients. They discuss the changes and how they are important in the general practice and in specific practice.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

What Do We Expect From Our Clients? - Hull on Estate and Succession Planning #159

Posted on April 7, 2009 by Hull & Hull LLP

Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 159 of our podcast on Tuesday, April 7^th, 2009.

Hi there Ian.

Ian Hull: Hi Suzana.

Suzana Popovic-Montag: How are you today?

Ian Hull: Terrific, thank you.

Suzana Popovic-Montag: That’s good.

Ian Hull: So today we thought we’d talk about and consider a bit of a pet peeve of ours and that is, what do we expect and what can we expect from clients. And we spend a lot of time on our podcasts and in our profession worrying about what clients can expect of us. But I thought today we’d twist it around a little bit. And the reason why, I mean, one of the things that triggered it is for those of you who have been following some changes in the Law Society, there are some recent changes to the Rules in terms of what we must now ask our clients. And I thought it was a good segway. The by-law was changed and we get into the details of that. Basically the Law Society has said, and it comes in large part from money-laundering concerns and things like that, but the Law Society has said lawyers need to do the following: they need to get identification from their client and they have to verify that that identification is valid. And what does that mean to an estate practice? Well what it means to an estate practice is it’s a good reminder of the necessity for full disclosure.

So we thought we’d spend a few minutes about the new Rules, just because I think they are interesting in the context of estates. And secondly, spend a few minutes about, you know, the importance of disclosure.

Suzana Popovic-Montag: And really, Ian, as a result of a change to the by-law, it’s not really that much of a more onerous job for us as practitioners because we would always identify our clients. People would come in; we’d get the specifics in terms of their addresses, their locations, how we can nail them down in the future and get hold of them if we needed to. But we’re now taking it that one step further and actually verifying that with photo i.d. basically. I think that really is the only additional thing. And many people are probably doing that to begin with anyways. And when we talk about the different roles that our clients can have or what different capacities they can come to us as, when we’re dealing with a client who is a Power of Attorney for instance, then additional obligations will arise for us as practitioners in order to verify that these individuals are who they say they are. And I thought maybe we could flesh that out a little bit.

Ian Hull: For sure. I mean, I think what the Rule says is that we have to do this work, this identification and verification with due diligence. So I want to turn that back on the clients and say to our clients, and I’ll often do this, is say look, I need due diligence on your part. If you’re going to come and see us with your estate planning expectations, or your estate litigation concerns and expectations, we need you to talk about a topic that is not easy to talk about (a) that’s death; and (b) talk about specifics that (b) that’s personal. So death and personal information is always hard to pull out of a client. But I think these Rules help sort of highlight the importance of it in our general practice. But even let’s talk about how they are so important in our specific practice.

Suzana Popovic-Montag: And the truth is, Ian, when we get people coming to us in these situations, they’re not at the easiest points in their life. And so to get information from them is difficult at the best of times, let alone under these circumstances. And having them bring all the requisite documentation with them, so that we’ve got the comfort of knowing we’ve got the full story, and that we’ve got the full, you know, the verification and identification stuff that is required of us so that’s in our file and we can use that in the future, if and when need be.

Ian Hull: Absolutely. So I look at it, and I say to our clients look, you now have to verify and identify. Or identify first and then verify. And identify is sitting down. If you’re going to, for example, want to get an estate plan organized, and you’re getting ready to go to the meeting and hopefully you’ve got maybe a checklist from your lawyer before you get there, or you arrive and you get a checklist and you go through it. Identify. Well, you know what, if you’ve got different assets, like RRSP designations to identify, or insurance designations to identify, that can have an integral part in the estate plan. And although our job is expected to pull that information out, you’re looking at time and expense and additional effort for work that you can do. And we call it homework.

Suzana Popovic-Montag: Right.

Ian Hull: Do your homework before you come to us. So that’s one part of it. And the second part of it is, we just encourage our clients, and it’s certainly not necessarily on the non-contentious side, but on the contentious side, we encourage our clients not to hold back.

Suzana Popovic-Montag: Yes.

Ian Hull: Sorry.

Suzana Popovic-Montag: And that’s a really important thing because people are hesitant enough to talk to lawyers at the best of times. But when you’re in these circumstances where things that may not necessarily appear important to the clients, could be very important to us. And so to the extent that we can draw that out, that’s great from our perspective. But to the extent that that can come to us voluntarily as well can only help in these situations.

Ian Hull: Absolutely. And some of our clients want to second-guess us. And that’s fine at some level. I mean lots of clients are very, you know, astute and they know what they want and don’t want. But I remember a case not so long ago where we were going through this document. It started off to be a simple probate application. I asked for a copy of the Will and I was given a photocopy. And I said well, okay, I need the original. And my client said, okay, why do we need that? Not that she didn’t want to give it to me; just didn’t understand it. She said fine. And then sure enough, the original arrived. She worked downtown and dropped it off at my office and the original arrived and it had handwritten markings on it. So all of a sudden turning what was a very simple administration into what has now turned into a bit of a contentious and a bit of an awkward probate application. So don’t presume that that little note in the corner, you know, Go Jays Go, and that’s being said because we won at the home opener yesterday. There’s a lot more that can come from that. And really it just comes down to, I mean, this is common sense. But I was struck by the impact that the new Rules are having on lawyers. And struck by the fact that it reminds me of the importance of clients to give us that identification and verification information.

So today we just wanted to highlight that and for those of you who want to go to the new Rules, Rule 7.1 of the By-laws of the Law Society of Upper Canada, on their webpage it’s located. It identifies the Rules with some particularity. It gives examples of specific expectations that a lawyer is going to have to verify. And so, for example, if there’s corporate holdings or partnership holdings, there are new Rules for us. So when you get down and sit down with the lawyer and they start asking you questions that don’t make sense, remember that (a) it is actually because we’re being told we have to by our new Rules; but (b) some of that information can be truly important, can impact either an estate litigation matter, a non-contentious matter. So don’t hold back, in my view, and you’ll save a lot of time and money and effort.

Suzana Popovic-Montag: And I think that brings us to the end of this podcast. Thank you very much, Ian.

Ian Hull: Thanks Suzana.

To listen to other Hull & Hull podcasts, or leave any questions or comments, please visit our website at hullestatemediation.com.

Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Show notes, Suzana Popovic-Montag, clients, hull and hull LLP, ian hull

The Positive Side of the Second Marriage - Hull on Esate and Succession Planning #158

Posted on April 1, 2009 by Hull and Hull LLP

Listen to The Positive Side of the Second Marriage

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the positive side of the second marriage from a planning standpoint with a focus on capacity planning.
They discuss both property and personal care.

If you have any comments, send us and email at hullandhull@gmail.com or leave a comment on our blog.

The Positive Side of the Second Marriage - Hull on Estate and Succession Planning #158

Posted on April 1, 2009 by Hull & Hull LLP

Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening, and some of you may be watching, episode 157 of our podcast on Tuesday, March 31^st, 2009.

Ian Hull: Hi Suzana.

Suzana Popovic-Montag: Hi there Ian. How are you?

Ian Hull: Just great, thanks.

Suzana Popovic-Montag: That’s good. Ready for April Fool’s Day?

Ian Hull: Yes, I guess I’ll have to be. Watch my kids come at me.

Suzana Popovic-Montag: You’ve been warned.

Ian Hull: So let’s work through the positive side of the second marriage, there’s always lots of positives. But the positive side of second marriages on a planning standpoint because we do see, you know, if I had to estimate either the family cottage or the second marriage are the two biggest stumbling blocks to effective estate planning. And we talked in our last podcast about the second marriage and how some of the mechanisms we could use to develop scenarios that will help fund both sides, both families. Family number 1 and family number 2 in the second marriage scenario, or family number 3 and 4, depending on how busy we are.

Let’s today talk about, not as much focusing on the estate planning, but on the capacity planning because that in and of itself can be a really, really important scenario. And we’re going to talk about the property and the personal care. But just to start with the personal care, given the scenarios in a second marriage, sometimes the volatility of someone who becomes incapable for personal care can be incredible. There’s the first marriage scenario where you’ve got maybe the surviving spouse. Well everyone is alive in our illustration here. But in the first marriage, spouse number 1 who is divorced from their original spouse may still be alive and may be thinking that he or she has some role to play at the time of incapacity or there might be some expectations by their kids of their mother or father playing some role in capacity, notwithstanding the fact that the spouse has moved on and remarried.

So the emotions can be extraordinary in that scenario. So obviously our first suggestion to our clients is get your Powers of Attorney organized and think through the choice of attorney, both as guardian and as personal care.

Suzana Popovic-Montag: And that’s really an important thing, Ian, because even though here in Ontario we certainly have statutory fallbacks in the event that someone hasn’t planned properly for their incapacity, you really want to take that moment, you want to meet with an advisor and you want to make sure that you lock that down properly. Because there is, as you say, so much emotion. And that can really overpower even like financial acumen or any other kind of reasonableness in these situations. And so I think it’s very important that as part and parcel of the estate planning process, people include the incapacity planning as well.

Ian Hull: So given the emotions of that moment in time when incapacity sets in and then the reaction to it, let’s talk about joint Powers of Attorney and let’s talk about it in a second marriage scenario where the couple have their own resources coming into the marriage but one may need to take over the other’s resources in a moment of incapacity.

Suzana Popovic-Montag: And when they’re doing that, I think what people are thinking are that they want to sort of appease both families. They want to appease the spouse and they also want to appease perhaps the children from the prior relationship. And so they’ll think about a joint arrangement where more than one attorney is appointed. And you can technically have as many people appointed as your attorney as you want. The only restriction, of course, would be the actual execution of that document. If you have too many people who can’t get along or too many people who are not going to be able to co-operate, it just doesn’t make any sense from a practical perspective.

Ian Hull: Alright. So what do you find, then, in these scenarios with the joint Powers of Attorney? What are some of the legal restrictions or what should we be looking to, to make sure that we’ve at least created an effective document?

Suzana Popovic-Montag: Well Ian, when you appoint more than one person as a Power of Attorney, those people who are appointed are presumed and expected to act jointly unless you specifically want to vest them with the opportunity and the ability to act independently of one another. And so that’s something that you want to keep in mind to the extent that you can, because otherwise there is, as I said, this statutory expectation. And similarly when you appoint more than one person, if one of them were to die or to become incapable or to not want to continue acting as your attorney, again there are some statutory expectations and the statute kicks in and says that the remaining people can act on your behalf unless you provide otherwise in your instrument. So it allows for a lot of flexibility if that’s something that you want to build into your plan.

Ian Hull: So when we look at our document, we look at the appointment provision as (a) and (b) jointly and severally or jointly or severally, that kind of language, so it allows them. And as you say, I mean it’s so important to make this determination early on, make it clearly identified in the document because you’re dealing with third parties. Its institutions like banks and hospitals and care facilities that have to read these documents and understand them. And so if you’ve created too many attorneys and if you’ve created language that doesn’t clearly identify whether it is a joint Power of Attorney or not, you’re going to find yourself maybe running to Court to have to either clarify or re-do the documents through a guardianship application or something like that.

Suzana Popovic-Montag: And another key thing to think about in these situations too is the trigger mechanism for a Power of Attorney. And when I say that, what I’m referring to is the fact that some Powers of Attorney can be effective from the moment you sign them and others can only become effective once you become incapable. And if you choose to create a Power of Attorney that only sort of springs into action when you’re incapable, you want to make sure that the test for when that document becomes effective is crystal clear. Because again otherwise you are running to Court and seeking judicial determination of that. And just think about when you’re in these situations with perhaps two different families, you know, there could be a real issue as to whether one agrees that the Mom or Dad is suddenly incapable or not. So it’s just…

Ian Hull: Yeah and I think it may be a bit understated. I mean, I think you have to expect that the tensions are high and I mean really a big part of why we wanted to talk about these issues today and in our last podcast was that people put their head in the sand and ignore the fact that creating a second relationship, whatever it is, married or common-law, creates new tensions. And those tensions can explode on a dime and you may not have predicted that for any reason why. So I think you have to expect the worst in that scenario. And I don’t think that’s an unfair…I think that’s a consequence of creating this new relationship. So when you do expect the worst, you need to, it seems to me and we tell our clients, communicate that and communicate what is going to be expected, not just on death but communicate it when you get to moments of incapacity.

So the joint Power of Attorney, the document itself, we want to make sure it’s identified properly as the co-appointments or more or less, depending on who’s involved. We want to make sure that we don’t have any sort of vagueness in terms of when it comes into effect. Are there any other factors that we want to look at when creating a joint Power of Attorney, especially in light of a second marriage scenario?

Suzana Popovic-Montag: Well Ian, one of the other tension points that I see often arise is the question of compensation. When attorneys are acting jointly, we know certainly that there are, you know, statutory entitlements for attorneys who are acting as Powers of Attorney. And then the question is, when you have more than one attorney, who gets how much?

Ian Hull: Well that compensation issue can be a real hot button as sometimes the expectation is that you’re doing this all for free.

Suzana Popovic-Montag: That’s right; it’s a labour of love.

Ian Hull: Yes and its not easy because if you say you did put co-attorneys in from one kid from the first marriage and the surviving capable spouse, the expectation might be that one of the two of them or both are going to do this for free and it may not be something that they can afford the time and energy to do for free.

Suzana Popovic-Montag: And another thing, of course, that arises or a possible conflict that could arise is the decision-making authority. And what happens if the two people or more can’t agree? And what kind of mechanisms can you build into your Power of Attorney to perhaps avoid going to Court? Can you build in some kind of majority rule provision? Can you build in the necessity to maybe attend at some kind of an informal mediation arbitration kind of arrangement to have these decisions made short of a full-blown legal warfare?

Ian Hull: Well, and that’s a great idea. So we can talk about that with our clients and create and craft the document as opposed to just, you know, pulling it out of a standard form. Make it special for what is a special relationship. So I think we’ve covered the Power of Attorney and the second marriage scenario at that level. And we’ve had some interesting discussions in the context of estate planning. So we have a little bit of a checklist we’ve created, both for the estate planning and for the capacity planning.

So thanks very much for today.

Suzana Popovic-Montag: Thanks to you Ian.

To listen to other Hull & Hull podcasts, or leave any questions or comments, please visit our website at hullestatemediation.com.

Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates and Succession Planning, Show notes, Suzana Popovic-Montag, hull and hull LLP, ian hull

The Legal and Substantive Role of the Executor - Episode #154

Posted on March 18, 2009 by Hull and Hull LLP

Listen to The Legal and Substantive Role of the Executor

This week on Hull on Estates Ian Hull and Suzana Popovic-Montag discuss the legal and substantive role of the executor at the time of death. They focus on the question of who has right and control over the body and refer to the 2001 decision of Sopinka vs. Sopinka.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

The Legal and Substantive Role of the Executor - Episode #154

Posted on March 18^th, 2009 by Hull & Hull LLP

Suzana Popovic-Montag: Hi and welcome to Hull on Estates. You’re listening to episode 154 of our podcast on Tuesday, March 17^th, 2009.

Ian Hull: Hi it’s Ian Hull.

Suzana Popovic-Montag: And I’m Suzana Popovic-Montag and we’re pleased to be back on Hull on Estates. If you want to be heard on Hull on Estates you can participate by leaving us a comment. You can feel free to e-mail us at hull.lawyers@gmail.com.

Ian Hull: Or please feel free to visit our daily blog at estatelaw.hullandhull.com.

Suzana Popovic-Montag: So how are you today Ian?

Ian Hull: Just terrific, thank you.

Suzana Popovic-Montag: That’s good. I see you’re wearing lots of green on this special St. Patrick’s Day.

Ian Hull: Oh absolutely, there’s more beer to come.

Suzana Popovic-Montag: That’s the spirit.

Ian Hull: So I think what we thought we’d try to do today anyway was to speak about what can be a difficult time when you are appointed an executor and talk a little bit about the legal and substantive role of an executor at the so-called time of death.

So what do we do with the body and what is our role as executor? The one fundamental substantive law point that I always try to make sure my clients understand is that the Will speaks from death. So it is the governing document and the one that you have authority at the instance of death to proceed with. With that, of course, gives you the authority but also gives you the curse of liability and obligation as well. So we can’t forget that the Will speaks from death.

Suzana Popovic-Montag: And so, of course, the first issue for someone dealing with a death in the family is to actually locate that Will. And normally what we’ll see is one of the first calls is made to the lawyer for the deceased to the extent that that individual is known.

Ian Hull: And there are other immediate searches that are obvious as well. Of course, the safety deposit box, the dresser drawer, and all of the conventional spots you’d want to look. But we always encourage our clients to tell our executors (a) they have the job; and (b) where the Will will be located.

Suzana Popovic-Montag: And the reason that that’s so important, Ian, is of course because the executor is the individual who has the authority to decide how to deal with the body once they have that authority vested in them.

Ian Hull: So that role of the executor and one that sometimes is overlooked is this control and custody of the body, so to speak. What are the first steps, and I want to just say as an aside that there’s a great article by Paul Trudelle on our web page. He spoke not at our last breakfast but the one before, on this topic. But what is, speaking of the body so to speak, what is the first step an executor’s role may or may not revolve around?

Suzana Popovic-Montag: Well Ian, I think what you’re suggesting is the funeral arrangements, is that right?

Ian Hull: Yes and the question is, of course, lots of times the executor has nothing to do with the funeral arrangements and it is entirely the role of the family. But one can’t forget that they have the legal and substantive obligation of dealing with the body and that may include the funeral arrangements.

Alright, so in terms of case law on this area, the one that we’ll put on the show notes is the Sopinka v. Sopinka decision, it’s a 2001 decision and it’s in the Ontario Court. And in that case there was a fairly dramatic series of events that touched on the role of the executor. We’ll let you read the case for its facts. But one of the things that it tried to do anyway was focus on the question of who has rights and control and custody over the body and reminds us under the provisions of the Trustee Act then what can and cannot occur.

We’re also reminded in that decision, of course, that Section 3 of the Act provides that where a trustee dies, the personal representative of the trustee is capable of exercising the powers of the trust of the deceased. So in the Sopinka case there was a situation where the appointed estate trustee had died and they had to move quickly and the question of what the rights of the succeeding trustee were, were developed and discussed pretty extensively in Sopinka.

Suzana Popovic-Montag: And as unusual and dare I say morbid as it sounds, Ian, these kinds of fights do happen. We do see people arguing over how someone’s remains should be treated. Whether, for instance, they ought to be cremated or they should be buried. And in the Sopinka decision, we saw a struggle between the parent of the deceased and their children. And it was a very interesting case that I suggest to anyone who’s interested in the area to certainly take a look at because the case sets out a number of observations which are important, particularly when you’re dealing with these scenarios. And the first, of course, is the fact that the case underscored that the duty to dispose of the body included the right to actually have possession or custody of the body for the purposes of that disposition.

Ian Hull: And then the rights in respect of burial continued as well and something that the executor was obligated to do. It was also the question of the duty to dispose of the body in circumstances where so done in a dignified and sensible fashion.

Suzana Popovic-Montag: And one of the points that was particularly interesting and stressed by the Court was the fact that the duty to have control and custody of the body by an executor can trump the surviving spouse’s rights. And that might come as a little bit of a surprise to the average lay person who may not be aware of the fact that they wouldn’t necessarily stand in priority in those circumstances.

Ian Hull: And I think Paul Trudelle’s article is great because it points out there is a case, Trillium Gift of Life Network decision. The interesting thing there is that it points out the fact that there’s no property in the deceased’s body but you have, the estate trustee is entitled to possession and custody of the body in their role.

So in terms of also considering some of the other obligations of the trustees and the powers that can be granted, when you’re in a situation where there’s a conflicting scenario, and Sopinka dealt with that as well, there’s also opportunities where sometimes the executor is faced with religious tensions and stresses in respect of what should or should not be done.

Suzana Popovic-Montag: And I refer you to, and you’ll see a reference to it in the show notes, the decision of Salley v. Reichkart where the Court specifically dealt with whether or not religion had any bearing on the authority of an executor to deal with the body.

Ian Hull: Again, Paul’s paper delves into this really effectively in terms of that question but its one that can’t be forgotten and also should be very seriously considered in terms of what our general theme of dealing with our clients is, we remind them to please communicate what your hopes and wishes are, especially if they are focused around some cultural or religious beliefs. Make sure those are communicated both; sometimes you can do it in the Will, but also verbally to your family and the executor.

Suzana Popovic-Montag: And that, of course, Ian, coupled with where to find the Will so that the individual who is the executor can have that opportunity to deal with the funeral arrangements right away, if he or she chooses to do so in a fashion different from what perhaps the family might otherwise want.

Ian Hull: So my final comment before we wind up this podcast talks about the question of really the donation of body parts or the body itself. And, of course, there’s an Act in Ontario, and generally most provinces deal with this issue of gifting your body. I was struck by the importance of this when I was recently taken through a tour of Toronto General Hospital of the lab where they deal with the whole question of defibrillation and the kinds of experimentation that’s going on. And we were taken through the lab and shown where different body parts are used when someone passes away for experimental purposes in the subsequent time, which is obviously fairly limited. But the magic that they can pull out of the information, that they can pull out of those scenarios is remarkable. And so the question of gifting body parts and the body itself is something that’s worthwhile discussing with your family because you can pass on an incredible legacy even considering that as well.

So I think that winds up our podcast for today. We wanted to just touch on the core, substantive issues that sometimes are forgotten and the tremendous obligations that are put on to executors that we’ve talked about in the past, on accounting obligations, obligations to file tax returns. But one that is sometimes forgotten, and that is, the obligation to deal with the body immediately arising upon death.

Suzana Popovic-Montag: Well Ian, notwithstanding that note that we’ll be leaving this podcast on, it was a pleasure having the chance to join you again on Hull on Estates. And we do look forward to hearing from our listeners. Again, if you would like to provide us with some feedback, feel free to e-mail us at hull.lawyers@gmail.com.

Ian Hull: And always check out our web page and check out our blog. Our web page at hullandhull.com and please feel free to give us feedback. So thank you very much, Suzana.

Suzana Popovic-Montag: Thanks to you too, Ian.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Hull on Estates, Hull on Estates, Show notes, Suzana Popovic-Montag, hull and hull LLP, ian hull

Assisting our Elderly

Posted on March 6, 2009 by Hull and Hull LLP

I recently stumbled on an article by Eileen AJ Connelly, where she discusses the issues that might arise with aging relatives or friends. I found Ms. Connelly’s article to be interesting because Canada is an aging society, but more particularly because it provides her readers with a strategy on how to approach the subject of managing finances with an elderly relative and what signs to watch for if it is suspected that an elderly relative might be having trouble handling finances.

In her article, Ms. Connelly lists the following “warning signs” to watch for if you suspect an elderly relative, client or friend may be having trouble handling finances:

1. Unopened mail;

2. Late or unpaid bills; collections actions;

3. Confusion or lack of interest about what bills have been paid;

4. Bounced checks;

5. Disorganized personal paperwork;

6. Uncashed cheques or unclaimed property reverting to the government;

7. A large number of magazine subscriptions; and

8. Unusual or increasing direct mail or shopping-channel purchases.

The theme behind Ms. Connelly’s article is not to wait to get involved, but be proactive. If you have noticed a possible problem with an elderly relative or friend you should not wait to have the dreaded conversation of managing finances. The longer you wait, the greater the risk that any existing problems will only accumulate. Ms. Connelly states that most elderly relatives, like parents, are afraid that they are bothering their children and it’s up to the children not to assume that your offer for help will be refused.

Thank you for reading and have a great weekend.

Rick Bickhram

Tags: Bickhram, Estate & Trust, Rick, Trust, elder, estate, hull and hull LLP

Amendments to the Rules of Civil Procedure - Episode #152

Posted on March 4, 2009 by Hull and Hull LLP

Listen to Amendments to the Rules of Civil Procedure.

This week on Hull on Estates Rick Bickhram and Paul Trudelle discuss the amendments to the rules of civil procedure that have be set out by the government and come into effect on January 1, 2010.
The purpose of these amendments is to provide the civil justice system with a means of being more affordable and accessible.

Feel free to send us an email at hull.laywers@gmail.com or leave us a comment on the Hull on Estates blog.

Amendments to the Rules of Civil Procedure - Episode #152

Posted on March 4^th, 2009 by Hull & Hull LLP

Rick Bickhram: Hello, and welcome to Hull on Estates. You are listening to episode 152 on Wednesday, March 4^th, 2009.

Rick Bickhram: Hi and welcome to another episode of Hull on Estates. I’m Rick Bickhram.

Paul Trudelle: And I’m Paul Trudelle.

Rick Bickhram: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. Please e-mail us at: hull.lawyers@gmail.com, or you can visit us at our blog at estatelaw.hullandhull.com.

Paul Trudelle: Yes, and thanks Rick, I thought we’d get right into our topic today and I thought we’d either talk about the Bank of Canada drop of interest rates from 1% to ½ % and the effect that that’s going to have on my mortgage negotiations. Or we could talk about the new Rules of Civil Procedure. What do you think?

Rick Bickhram: I think probably the Rules or the amendments to the Rules of Civil Procedure.

Paul Trudelle: Okay, that’s a great idea. Let’s get right into that then. There are new Rules of Civil Procedure that have been proposed, or set out by the government. They come into effect on January 1, 2010.

Rick Bickhram: I think its important to note that the purpose of these amendments were to provide our civil justice system with the means of being more affordable and accessible for all who, I don’t want to use the word participate, but who are into the system.

Paul Trudelle: Yes and I think that the rule changes tweak a number of existing rules in some important ways, all of which is designed to improve access to justice, keep the costs of civil litigation which can be quite high, to keep those costs down, if possible.

Rick Bickhram: When do these amendments come into place?

Paul Trudelle: They come into place on January 1, 2010. They’ll affect all proceedings, whether commenced on or before or after that date. So it’s important for everyone to know what those changes are and how they’re going to affect their proceeding, whether the proceeding is now in the works or whether it’s going to be commenced after January 1, 2010. They have quite a broad ranging affect and therefore it’s important to be aware of what those changes are.

Rick Bickhram: So I guess the first step is to talk about one of, I guess, the broader principles of the rules and the first one is going to be Rule 1.04(1.1) and the overarching principle of interpretation on this rule is that the Court shall make Orders and give directions that are proportionate to the importance and complexity of issues and the amount involved in the proceeding. I think the key here is to understand that proportionality is expressly required to be considered on all motions relating to discovery.

Paul Trudelle: Yes and this is the Rule 1.04, is the general interpretation of the rules and in that section there’s the requirement of proportionality in making any Orders. And it’s felt that this particularly affects the issue of discovery because that’s a very expensive part of the litigation process, so it’s important to know that there is that overarching principle of interpretation that the Courts will apply in making any decision substantive or procedural.

In addition, the Rule 1.08 also allows the Court to hear matters by way of telephone or video conference. Again, designed to keep costs down, the cost of attending at a Court hearing.

Rick Bickhram: And I think this rule kind of exemplifies the purpose of making it more affordable and accessible for all who are in the civil justice system because (a) it will loosen up some judicial resources; and (b) it should make it more affordable by reducing lawyer’s fees. We don’t have to necessarily attend every single motion now.

Paul Trudelle: That’s right. And it also reaches out to embrace the technology that we do have now with respect to telephone conferencing and video conferencing. And makes the Court more accessible by using that technology. We’ll see when we talk about the rules of electronic discovery that again there is reference to or an appreciation of modern technology and how it affects civil litigation.

So also I was saying the rules address to some extent the issue of discovery and a lot of the amendments tweak the discovery requirements and the obligations of the parties to make full and fair disclosure. And it also streamlines the discovery process with a view to avoiding what can sometimes be very costly disclosure requirements. One of the important rules there is that the Courts have changed what is needed to be disclosed. They’ve taken out the requirement that you disclose any document that has a semblance of relevance which is a very broad requirement and has replaced that with a requirement that you produce any documents not relating to a matter in issue but relevant to any matter in issue. So it fine-tunes that. It goes beyond requiring that the document relate to a matter in issue, but it has to be relevant to a matter in issue. We often see in estate litigation, for example, a number of documents that relate to a matter in issue but may not necessarily be relevant should the matter proceed to trial.

Rick Bickhram: And I think that’s again another important distinguishment and it goes back to the purpose of the rule which hopefully will reduce costs. We don’t necessarily have to comb through every single document now. We only look at the relevant documents. And it will thus make it more affordable for individuals to access our civil justice system.

Paul Trudelle: Yes.

Rick Bickhram: One of the interesting tweaks I’ve noticed about the discovery rules is the parties, I guess, pursuant to Rule 29.1, are required to file a discovery plan. And the plan (a) must be in writing; and (b) it must include the intended scope of any documentary discovery that’s to occur. What’s your view on that?

Paul Trudelle: Well I think that is going to get parties thinking at an early stage about the discovery process, what is going to be discovered, what is relevant to the matters in issue. Rather than just leave it open to discovery and have those issues come up at discovery, the parties must turn their minds to the discovery plan at an early date. It’s either 60 days after the close of pleadings or at the time they wish to obtain the evidence. So when you request the Affidavit of Documents, for example, before you do that, you must have this discovery plan. And you said that the plan has to be in writing, it needs to set out what the intended scope of discovery is so the parties need to look at what the issues are and what’s going to be relevant to that. The parties must go on to set out a timetable for the discovery process, dates for service of Affidavits of Documents, information on timing, the costs and the manner of production, address who is going to be examined for discovery, the place of discovery, the timing of the discovery, when they’re going to take place obviously, and also the length of the examinations.

Rick Bickhram: Another interesting tweak about the discovery rules is the Examination for Discovery. Under the new rules, no party is allowed to discover for more than 7 hours without the consent of the parties or a Court Order. And my understanding of this rule is that I call it the 7 hour rule, is in place regardless of the amount of witnesses that a party may have to examine. Is that correct, Paul?

Paul Trudelle: I understand the rules to limit discovery to 7 hours for each party. So each party would have 7 hours to examine the other parties. The rule specifically provides that no party may examine for discovery more than 7 hours, except with the consent of the parties or with a Court Order. And whether the Court will grant that Order will depend on the amount in issue, the complexity of the facts in law and the time that the Court expects would be reasonably required. The Court also looks at the financial position of each party, what financial resources they bring to the table and whether they are able to bear a longer discovery. Finally, the Courts will look at the conduct of any party. If there is conduct of one party that serves to delay the examination process or to drag out the examination process, then the Court may relieve against any injustice that may result from that. And the Court goes back to the overriding principle that we talked about earlier with respect to proportionality and I think that’s going to be particularly important or germane to the issue of discovery and the length of discovery.

Another important point on the principles of discovery is that the parties must consult and have regard to what has been referred to as the Sedona Canada principles of addressing electronic discovery. I did a little research into that. There is a document on the web and I’ll put the link on our website. The document entitled the Sedona Canada principles, which is a conference or a project that dealt with the issue of addressing electronic discovery. It’s quite lengthy and detailed however there is an executive summary which is quite helpful. It provides, just to summarize, that electronically stored information is discoverable. Steps to produce that information must be proportionate, again proportionate to the nature of the litigation and the dollar value. As soon as litigation is anticipated, a party must preserve potential electronic information. Counsel and parties are to meet and confer as soon as practical in order to identify, preserve, collect, review and produce electronically stored information. That information must be produced. A party shouldn’t be required, without agreement or a Court Order, to search for or collect deleted or residual electronically stored information. There are procedures set out for searching for information that may be relevant. And there is reference to reliance on electronic tools for searching. And the rule also addresses the costs of producing that electronic information and at first blush, the reasonable costs of preserving and collecting the information is to be borne by the party producing it. So if there is a case that deals with electronic information, just to wrap up this point, a party should address at an early stage and identify how that electronic information is going to be preserved and produced and used in the litigation.

So we won’t get into any more detail because our time is running short. The new rules alter the existing rules with respect to the…

Rick Bickhram: The following categories…

Paul Trudelle: Thank you. Summary judgment, mandatory mediation, listing matters for trials, extends the time with respect to service for motions and applications, deals with issues at pre-trial and how expert reports are to be produced prior to pre-trial, deals with new requirements for expert reports and what needs to be set out in the expert reports, specific proviso that expert reports must be non-partisan and must certify that they are aware of their duty to be fair, objective and non-partisan. There is an amendment to the Simplified Procedure, an increase in jurisdiction to $100,000. There’s also an increase in the jurisdiction of the Small Claims Court which is going to be increased to $25,000. We’ll put a link to the rules commentary and the new rules on our website so I think that it’s required reading for any litigator and should be important reading for anyone who may be involved in litigation in the coming months and years.

Rick Bickhram: Well I think that brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me today, Paul.

Paul Trudelle: Thank you, Rick. I look forward to podcasting again.

Paul Trudelle: And I’m Paul Trudelle. Till next week, so long.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

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Protection For a Trustee Against Personal Liability - Episode #151

Posted on February 24, 2009 by Hull and Hull LLP

Listen to Protection For a Trustee Against Personal Liability.

This week on Hull on Estates, Craig Vander Zee and Bianca La Neve discuss protection for a trustee against personal liability. There are a variety of ways that protection is afforded to a trustee against liability, such as exculpatory clauses in trust documents, various provisions of the Trustee Act, passing of accounts, and releases by beneficiaries and/or third parties.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

Protection for a Trustee Against Personal Liability - Episode #151

Posted on February 24^th, 2009 by Hull & Hull LLP

Bianca La Neve: Hello and welcome to Hull on Estates. You are listening to Episode #151 on Tuesday, February 24^th, 2009.

Bianca La Neve: Hi and welcome to another episode of Hull on Estates. I’m Bianca La Neve.

Craig Vander Zee: And I’m Craig Vander Zee.

Bianca La Neve: If you want to be heard on Hull on Estates, you can participate by leaving us a comment, e-mail us at hull.lawyers@gmail.com or you can always visit our blog at estatelaw.hullandhull.com.

Craig Vander Zee: How are you today, Bianca?

Bianca La Neve: I’m great, how are you?

Craig Vander Zee: Good, how are the little ones?

Bianca La Neve: My little one is awesome. You have the two kids - I have the one.

Craig Vander Zee: Yes, yes.

Bianca La Neve: Sometimes you forget there are two, right?

So today, Craig, I thought we’d talk about your paper that you recently presented at one of the annual institutes and you spoke about protection for a trustee against liability.

Craig Vander Zee: That’s right, Bianca. That was the annual institute for the OBA which was held on February 4^th, earlier this month. And I thought it might be worthwhile to again discuss the protections for a trustee against potential liability.

Bianca La Neve: Now a trustee, whether incoming or outgoing, always needs to be aware and consider his or her potential liability as a trustee and over the administration of the trust. And this is because trustees are principals and not agents of beneficiaries and so prima facie they’re personally liable on obligations owed to any third parties and they can incur personal liability in tort or under statutes.

Craig Vander Zee: That’s right. I mean, trustees are potentially personally liable when they undertake what I’ll call the office of trusteeship and that potential risk or liability can be to a beneficiary, depending on what the allegation is. Or it might be to, as you have indicated, a third party whether by way of a contract or perhaps in the law of tort or by way of a statute such as the Environmental Protection Act. And so once a trustee or an individual or a company is considering becoming a trustee - perhaps they haven’t even agreed to the appointment yet - one of the things that they would be concerned with is the potential risk that might arise from the trust that they are being asked to administer. It might also be that they’re into the actual trusteeship and issues arise and they want to consider what their potential liability might be. And so that was really one of the focuses to my paper and what I thought we would touch upon today.

Bianca La Neve: Great. Now I guess the first step when you’re looking at what kind of protection there is for a trustee in undertaking his or her duties is you look to the trust document.

Craig Vander Zee: Well that’s right. The trust document itself, whether it’s an incoming or an outgoing trustee, may provide terms of protection to the trustee. Sometimes these provisions are called exculpatory clauses and may appear to absolve the trustee, perhaps even entirely, from consequences of a breach of trust by the trustee. What one has to be careful about is that exculpatory clauses, even if they’re expressly contained in the trust document, may not be enforceable and may not be valid in law. A number of papers have been written on this very subject and it seems that when it comes to exculpatory clauses, although there’s not a great deal of case law in Canada, that it appears that certain principles will be held to be enforced by Canadian Courts. And those are that an exculpatory clause cannot excuse liability for acts of gross negligence. They can’t excuse liability for wilful defaults or intentional wrongdoing. That they can’t excuse liability for acts of fraud or dishonesty. On the other hand, an appropriately drafted exculpatory clause will and can be effective to relieve a trustee from liability for breaches of trust of what one might consider lesser culpability than acts of gross negligence, intentional wrongdoing or bad faith. And again, those aren’t principles that I would say are set out in certain Canadian cases per se all in the same place, but ones that come really more from a collection of cases on how the Canadian Courts might apply that.

Bianca La Neve: And it seemed all those sort of limits that you just talked about are really self-explanatory. I mean, you would think that no matter how broad an exculpatory clause can be, you shouldn’t be able to protect against or to protect yourself from something when you did engage in fraud or dishonesty as the trustee.

Craig Vander Zee: Well that’s certainly one side of the argument. And, you know…

Bianca La Neve: And here as lawyers we argue both sides.

Craig Vander Zee: Now when talking about exculpatory clauses, though, Bianca and I were really mentioning those that remove all liability, in any circumstance. But you could have provisions in a trust document which may raise the level of culpability before one is to be held accountable or liable. Or on the other hand, it could limit the extent to which a trustee might be liable in terms of the assets of the trust itself, regardless of the conduct. So there could be different provisions within the trust document that may be of assistance to the trustee. I think what we’re talking about here is really that when looking to protect a trustee, really the first step, I would think, is going to the trust document itself and carefully reading it to see what it says or doesn’t say.

Bianca La Neve: For sure. And so after we’ve looked at that, you can also consider protection found in various statutes.

Craig Vander Zee: Well that’s right. And one such statute, you know, is the Trustee Act itself and certainly I don’t intend to get into all the sections in the Trustee Act that would provide protection or other Acts that would provide protection, but two sections in the Trustee Act I think are certainly noteworthy. And one would be Section 28 of the Trustee Act which provides that a trustee won’t be liable for a loss in a trust arising from the investment of trust property, if the conduct of the trustee that led to the loss conformed with a plan or strategy for investment amongst other things, and that such a plan would be adopted by a prudent investor under comparable circumstances. And that’s not a word-for-word reading but, you know, certainly Section 28 deals with that. And then Section 28 deals with really the damage side of things. Section 28 is relieving a trustee of liability in a circumstance where there’s been investment losses. And 29 then goes on to damages and says that where a Court is assessing damages, it can look to the overall performance of the portfolio and taking that into consideration. And so I think those two are worth mentioning as well.

Bianca La Neve: And I thought, you should also touch on Section 35 of the Act because this is a sort of a really good provision that you can look to when you’re considering whether the conduct of a trustee met the standard of care.

Craig Vander Zee: Right, in Section 35 of the Trustee Act really goes to what I would call the power to excuse the trustee because and without reading it, it deals with the ability in a situation where a trustee has acted honestly and reasonably and ought fairly to be excused from a breach, can be, if in the discretion of the Court, its appropriate in the circumstances. The caveat to this is that subsection 35(2) of it indicates that this doesn’t apply to liability for a loss of a trust arising from the investment of the property.

Bianca La Neve: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. E-mail us at hull.lawyers@gmail.com or visit our blog at estatelaw.hullandhull.com. Thanks for listening.

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Guardianship in Canada - Hull on Estate and Succession Planning

Posted on December 9, 2008 by Hull and Hull LLP

Listen to Guardianship in Canada

This week on Hull on Estate and Succession Planning, Suzana Popovic-Montag speaks with Rodney Hull about how the law has changed in Canada as it pertains to the appointment of guardians. Rodney suggests that today's laws (post-1994) are clearer than they were in the past.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

Guardianship in Canada - Hull on Estate and Succession Planning - Podcast #142

Posted on December 9, 2008 by Hull & Hull LLP

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag that will provide information and insights into estate planning in Canada. From the offices of Hull & Hull in Toronto, here are Ian and Suzana.

Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening, and some of you may be watching, episode 142 of our podcast on Tuesday, December 9^th, 2008.

Hello there Rodney.

Rodney Hull: Hi Suzana.

Suzana Popovic-Montag: I’m very pleased to have Rodney Hull join me again this week to fill in for Ian Hull. We’re very pleased to have you and thank you for joining us, Rodney.

Rodney Hull: Thank you very much for having me.

Suzana Popovic-Montag: What I thought we might do a little bit today, since we have you sort of here in the hot seat is to get your thoughts, and I know we’ve talked a lot in the past about capacity litigation and this whole grey zone as to whether or not someone is capable or incapable and what happens if they’re no longer capable. And so I thought having you here, we’d have the opportunity to maybe talk a little bit about the change in the law since when you started practicing back in 1957 and we still called it like a committeeship, and how things may have changed since 1994 when the new Substitute Decisions Act came into place.

Rodney Hull: Well in the pre-1994 legislation, the first distinction was that they changed the fiduciary, the name of the fiduciary from a committee to what it is today, which is the…

Suzana Popovic-Montag: Guardian.

Rodney Hull: Guardian. And basically though the function of the guardian is the same today as it was then. There is a far superior structure created by the new Substitute Decisions Act which gives a great deal more guidance to persons involved in committeeships as we used to call them. Before you simply applied, we did the same thing: we had psychiatrists and one would say this and one would say that, we would have doctors, we would have bankers, we would have investment people saying whatever their opinion was, and a committee was appointed for the person if it could be shown that the person was not capable of managing his or her affairs. Now it’s exactly the same but we have guidelines, much more direct, clear guidelines as to who we use, what we’re doing, we have referees, we have persons who are directed to make decisions as to whether or not there is the capacity to manage your own affairs. That’s clear, they’ve been set out. Before it was by guess and by God. The judge would listen to the evidence and it would be the judge that made the determination. Not a very satisfactory way of doing it, not because the judges weren’t every bit as good then as they are now or had less ability. It’s just that there is a scientific aspect to the appointment of guardians that I think we didn’t realize as much then as we do now, and that it isn’t basically simply a judicial function. It’s a function that involves almost all the aspects that one would put into ordinary daily living concepts.

Suzana Popovic-Montag: Right and you say that comes about because of the clearer definition that’s set out in our statute now.

Rodney Hull: That is correct. Yes, I think so. I think it gives us great guidance. It makes clear what we should be doing and the procedure is far, far more closely defined. Before it was, as I say, by guess and by God. You brought an application to have a committee appointed under the Act and of course the Children’s Lawyer would sometimes be involved, and the Public Guardian and Trustee was involved, as they are today.

Suzana Popovic-Montag: That’s right. And now that’s certainly from the financial perspective. So when we’re appointing someone to manage property, but how would you say, if at all, its changed in terms of having someone appointed for personal care?

Rodney Hull: That, of course, is probably the most difficult aspect to try and deal with.

Suzana Popovic-Montag: Yeah.

Rodney Hull: You know you…there are some people you don’t want to have the ability to pull the plug on you, that’s for certain. And we can all figure out who some of them are. But basically, I think the ones that are nearest and dearest to you are the ones that should have that decision. There is nothing worse, in my mind, than having no direction really, no written direction, but to have a gathering of 6 or 7 people around and there you are with one of these breathing devices in you, you hate it, your arms are tethered, you can’t tear it out, and they’re sitting around the table arguing whether or not it should be pulled out. We want Dad or Mom or Auntie so and so to have every chance to live and come back, even though the doctors say he or she is going to be a vegetable. That’s not good. But to be able to show the directing people that you have the authority to do it I think is very important. Finding that person is where the rubber hits the road.

Suzana Popovic-Montag: It’s so true and, you know, I wonder, from your experience, like I know certainly judges are reluctant these days to make those kinds of decisions, because those are such personal decisions that they don’t necessarily feel qualified in many cases to make that kind of a determination. Was it any different under the prior legislation?

Rodney Hull: Oh I don’t…I think myself that there was no clear authority to do it but the doctors looked after it pretty well.

Suzana Popovic-Montag: That’s true.

Rodney Hull: But everybody has become very conscious of taking on any responsibility that might involve you with bad feelings between people and I think that basically is how it was done. It was just done by guess and by God and sometimes oxygen didn’t get through, that’s all, sorry about that.

Suzana Popovic-Montag: It really seems to underscore, to me anyway, the importance of this planning, of planning during your lifetime, of telling people what it is you want and why it is you want it so that when these tough decisions have to be made, then you know at least you’ve got some guideposts.

Rodney Hull: You really don’t have to be too clear as to what you want. You don’t want to be going through a lifetime of pain and suffering and stuck with one of those things in your head backed up, and the pump going and you’re there, you’re not conscious. You don’t have to be a Rhodes scholar to figure that person doesn’t want to hang around very long.

Suzana Popovic-Montag: That’s for sure.

Rodney Hull: You know.

Suzana Popovic-Montag: So just in terms of some advice, Rodney, what would you say to people who are dealing with individuals who are sort of in this grey zone, where we’re just not sure if they are fully cognizant and capable or maybe they’re on the cusp of no longer having capacity? Any thoughts or any guidance for us in terms of dealing with those kinds of individuals?

Rodney Hull: Well I guess kindness is the only word that really comes on bidden to the lips. It’s a very difficult responsibility to take on; it’s a very difficult responsibility to pass on. So it just has to be guided by common sense and as I say, kindness, probably.

Suzana Popovic-Montag: Yeah. Well thank you very, very much, Rodney. It was a pleasure having the opportunity to podcast with you again, and to seek some of your thoughts and guidance to us, so thank you for joining us.

Rodney Hull: Thank you, Suzana, for having me.

Suzana Popovic-Montag: And just a quick reminder to everyone to feel free to provide us with any comments, any feedback, at hullandhull@gmail.com or feel free to visit our blog at estatelaw.hullandhull.com.

You have been listening to Hull on Estates and Succession Planning by Ian Hull and Suzana Popovic-Montag. The podcast you have been listening to has been provided as an information service. It is a summary of current issues in estates and estate planning. It is not legal advice and you are reminded to always speak with a legal professional regarding your specific circumstance.

To listen to other Hull & Hull podcasts, or to leave any questions or comments, please visit our website at hullestatemediation.com.

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Will Challenge Litigation - Part 12 - Hull on Estate and Succession Planning #137

Posted on November 7, 2008 by Hull and Hull LLP

Listen to Will Challenge Litigation - Part 12

This week on Hull on Estate and Succession Planning, Ian and Suzana clarify the distinction between claims of resulting trust and claims of constructive trust.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

Will Challenge Litigation Part 12 – Hull on Estate and Succession Planning – Podcast #137

Posted on November 7, 2008 by Hull & Hull LLP

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada. From the offices of Hull Estate Mediation in Toronto, here are Ian and Suzana.

Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 137 of our podcast on Tuesday, November 4^th, 2008.

Ian Hull: Hi Suzana.

Suzana Popovic-Montag: Hi there Ian, how are you today?

Ian Hull: Just great.

Suzana Popovic-Montag: That’s good.

Ian Hull: Remember, of course, we’ve got our call-in, 206-457-1985.

Suzana Popovic-Montag: And please feel free to continue with the feedback at hullandhull@gmail.com.

Ian Hull: And speaking of feedback, we got an interesting comment on our last podcast and thought we might touch on it today as we were working through additional issues beyond the Will challenge, but in the context of a Will challenge. And the comment was that they didn’t understand when we referred to a Supreme Court of Canada case, the Picori decision, how it sort of was relevant. So it was a timely question and one that we are going to deal with today actually because we want to talk a little bit about what those two claims are and how they fit into a global Will challenge piece of litigation. They can be separated from Will challenge litigation but they also can be part and parcel of the Will challenge. So why don’t we spend a little bit of time talking about them. First of all, the concept of resulting trust is again and what constructive trust is again, and then we’ll talk a little bit about how we’re using them in our day-to-day practice.

Suzana Popovic-Montag: That’s great Ian. And we know basically that a resulting trust is a trust that arises at law by virtue of the fact that Courts are looking for ways to make sure that people are treated equitably. And so if someone is left in a situation where they ought to be able to make some kind of claim against a certain pool of funds, for instance, or some other type of asset, that this remedy is something that is available to them.

Ian Hull: And the constructive trust, really the concept comes from this idea of unjust enrichment that we talked about and that someone’s done work and not been paid for it. It’s as simple as that. With the constructive trust world and where it developed, and it certainly developed very intensely out of the United Kingdom and the in Canada. In Canada, there was sort of a trilogy of cases that developed. But what happened was, the cases that started if off and why its sort of helpful is that it gives us an idea of how its being used today, is that the Courts sat back and said, in this case, the Murdoch and Murdoch decision and the following decisions that came from that, the Court sort of said look, there was an unequitable treatment of a husband and wife. This was pre-family law equalization times. And the Court said, well the wife has demonstrated that she participated equally in the marriage but on death, I mean not on death, in this case on marriage breakdown, the assets were being split up based on legal title. And the Court said that’s not fair. So they stepped in and said if you’re going to participate, you are constructively holding, you’re actually participating in the growth and the build up of assets, then you’re entitled to be replenished from your work. And whether you have legal title, whether the farm is in your name or its not, the Courts have said that doesn’t really matter. What matters is, what did you do? And it comes back to our similar way that we looked at quantum meruit as well.

Suzana Popovic-Montag: And in fact unjust enrichment is very, very similar to constructive trust except whereas you’re looking for payment of money in the cases of unjust enrichment, with constructive trust you’re usually looking to have some kind of claim to an asset itself, some interest in, you know, because these cases seem to have arisen in a family law context, an interest in the family home or some other property that is owned by one of the two people in a relationship.

Ian Hull: So that’s developed and in the estates law, the constructive trust claim is prevalent, certainly easily identified in a Will challenge scenario when you might have someone who is excluded from the Will. And say doesn’t get any of the family farm, and let’s say it’s the son. But that son has been working the farm for many, many years. And instead of looking to get paid for work and services as we did in quantum meruit or instead of trying to create a claim of proprietary estoppel which we talked about in a prior podcast, there is the claim that that asset is being held in trust by virtue of the work and services performed, and that you’re entitled to a portion of it. Not maybe more than you’d get paid on a quantum meruit, maybe less than you’d get on a proprietary estoppel.

Suzana Popovic-Montag: And just by virtue of a claim, of course, Ian, there has to be a real relationship between the work that was done for the property and the property itself. So that’s what takes this sort of, I think, outside of the box of being entitled to just a money payment for services rendered, that there’s actually a correlation between what you did and the property that you were doing it for.

Ian Hull: Absolutely. So I think its just one of those things that if we can consider, looking at both resulting trust and constructive trust. We’ve talked a little bit about the distinction. Sometimes on the facts it’s a distinction without any difference because you’re sometimes looking at trying to oppose a constructive trust or a resulting trust over a joint bank account. You can sometimes impose it over land or specific items. So, you know, we’ve tried to get into the distinction a little bit today but as long as we remember, and we try to remind our clients, you know, it’s an option. And it is part of the various approaches that we may or may not want to take when we’re dealing with a Will challenge-like scenario where we have been excluded or we are excluded and on what basis. And I think really from our perspective anyway, it is one of the more difficult claims to pursue. So we typically don’t want to pursue it unless we think we’ve got some decent hold on it because it’s a bit of a flaky claim, to use a term of art and the Courts are not going to use it unless you’ve got the rights facts. And where the Courts have historically imposed these kinds of trusts is when you’ve got obvious unjust deeds being done here, where someone has been unjustly treated at a level that there is no other way to solve it but by imposing these principles of equity on top of the facts and ultimately then coming to the Court, coming to say look, now I have a legal reason to say why that farm should go to Johnny and actually I only need 25% of the farm to go to Johnny because that represents the efforts that Johnny put into the farm property.

Suzana Popovic-Montag: That’s a really good point, Ian, because the truth is, these kinds of cases are hard to demonstrate factually because of the requirement for corroboration, because of the fact that so much of the evidence that would traditionally be led is more or less viewed by the Court as self-serving evidenced. And so to be able to find third party evidence of these situations is not necessarily that easy, but when it is, then strictly these claims are ones that we do pursue and as best as we can in the circumstances, knowing of course that there’s no guarantees even with that at the end of the day.

Ian Hull: Absolutely. Alright, well before we turn to our next topic, one of the things that we’re trying to work through with our video podcasts is we’re going to, from time to time as well, we wanted to let everyone know that we’re going to try to do from time to time an audio and a video blog where we run into an issue that demonstrates a really interesting point that in and of itself doesn’t justify a whole podcast or a video podcast, but might be worthwhile having a couple of minutes. So you’ll see us, from time to time, putting our little short snippets in, hopefully they’re helpful. And we have a couple of ideas and really we’re going to try to do is just grab them from our practice. And it may not happen once a week, it may not happen once a month, but every once and a while you’ll see that. So we look forward to that new little twist in our day-to-day social media efforts.

So thank you very much. That winds up, I think, our discussions for today’s podcast. We’ll continue with our Will challenge series and please feel free to send us an e-mail at hullandhull@gmail.com.

Suzana Popovic-Montag: Or, of course, call us and leave us a video comment at 206-457-1985. Thanks very much, Ian.

Ian Hull: Thanks Suzana.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.

To listen to other Hull On podcasts, or to leave any questions or comments, please visit our website at hullestatemediation.com.

Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates and Succession Planning, Litigation, Show notes, Suzana Popovic-Montag, Will Challenge litigation, hull and hull LLP, ian hull

Dealing with Estate Issues That Arise Immediately Upon Death - Hull on Estates #135

Posted on November 4, 2008 by Hull and Hull LLP

Listen to Dealing with Estate Issues That Arise Immediately Upon Death

This week on Hull on Estates, David Smith and Natalia Angelini talk about the duties an estate trustee he or she is charged with from the moment of a testator's passing. Duties include locating the will, making funeral arrangements and being responsible to see the intentions of the testator preserved.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

Dealing with Estate Issues That Arise Immediately Upon Death - Hull on Estates Podcast #135

Posted on November 4^th, 2008 by Hull & Hull LLP

Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to Episode #135 on Tuesday, November 4^th, 2008.

David Smith: Hi and welcome to another episode of Hull on Estates. I’m David Smith.

Natalia Angelini: And I’m Natalia Angelini.

David Smith: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. E-mail us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com. Hello, Natalia.

Natalia Angelini: Hi David. How are you?

David Smith: You know I’m okay. I’ve got a bit of a cold so my voice is about an octave lower than usual, but we’ll do our best today. So today, Natalia, we thought we were going to talk about the issue of what duties an estate trustee is charged with from the minute the deceased passes away.

Natalia Angelini: Right. It’s a really interesting topic because it’s a time when I think the estate trustee has to act fairly quickly to do a number of things, and I think the first of those is locating a Will.

David Smith: That’s right and I suppose at the outset too, we should give a little plug to Paul Trudelle of our office who has given a paper. And there’s a webcast available on the website dealing with this issue as well. We’re, in our podcast, going to try and explore in a little more detail some of the issues that Paul touched on in his discussion. So we commend that webcast to you. So I guess, what’s the first issue that usually arises for the estate trustee?

Natalia Angelini: I think the first can definitely be finding the Will of the deceased, because the first thing the estate trustee wants to ascertain is what the deceased’s testamentary wishes were. And so that’s definitely an important thing to look for.

David Smith: That’s right and of course, you know everybody keeps their stuff somewhere different. In some cases, it’s a safety deposit box. In other cases, it’s a filing cabinet, under the mattress. It will depend on the person. So if the executor is charged with the responsibility to look for the Will, they’re going to look in the obvious locations, and hopefully be able to find the Will. And of course, the lawyer plays a role, because if the lawyer is known, he or she might have a copy of the Will.

Natalia Angelini: Right, exactly, so it’s a good idea to make inquiries with the lawyer of the deceased if you know who that lawyer is, or perhaps looking through the deceased’s personal papers, you can determine who the lawyer is and contact him or her that way.

David Smith: Right and you know, if you get into a situation where there’s just no luck finding a Will, you can advertise in the Ontario Reports. That happens on occasion, we all see lawyers do that on the odd occasion.

Natalia Angelini: Right.

David Smith: When someone says, yeah, I knew so and so had a Will but I didn’t know who drew it.

Natalia Angelini: Um hm. So I think aside from finding the Will, and probably one of the next things that the estate trustee is going to definitely be thinking about is making funeral arrangements.

David Smith: That’s right. And in the cases of an unexpected death, obviously that’s going to probably be a situation where the executor’s got to take some action of their own accord. Of course, with older people and people who are contemplating their own death through illness or what-have-you, or some other really sad situation, we’re seeing more and more that people will prepay their funeral or have them organized ahead of time. But in most instances, the estate trustee is going to have to deal with this, you know, obviously rather unpleasant task, and certainly it’s the foremost concern.

Natalia Angelini: Absolutely. And with respect to payment of the funeral, I think it’s helpful to note that those costs are of priority payment and come out of the assets of the estate. So if it’s not prepaid then at least the estate trustee hopefully has assets available to make that payment.

David Smith: Well that’s right and it’s probably worth just making the point at this stage too, that the government provides a death benefit of $2,500. And really that’s there primarily to fund the cost of the funeral or to contribute towards the cost of the funeral.

Natalia Angelini: Right, that’s a good point. In dealing with the funeral, I think this is a real interesting one, especially if you’ve maybe got a dispute between family members as to how it should happen, and potentially that may even differ with what the deceased has set out in his or her Will, and you’ve got a really interesting situation about how this deceased person is going to be put to rest.

David Smith: Well you’re right Natalia and we’ve seen situations where it’s potentially very emotionally volatile. You can have a situation where you have religion sometimes clash with the intentions of the testator. There’s one case where, the name escapes me, but Rick Bickhram of our office recently, I think a couple of weeks ago, blogged on a case where a deceased person named her boyfriend as executor. He was charged with acting as executor and intended to cremate her remains. The family, for religious reasons, opposed that and this matter ultimately went to Court and the Court decided that it was in the authority of the executor to make that decision.

Natalia Angelini: Right, and during Paul’s talk, he went through a few cases dealing with this issue and it seems to be that the consensus of the Court is that the duty of an estate trustee includes that duty to dispose of the body and that the estate trustee really has final say.

David Smith: Right, and you know that really seems to be a very settled law. Unfortunately, I think you’re still going to see cases go to litigation on this in the odd instance, not because the outcome is ever really going to be in question because the law seems so settled that the estate trustee can do what he or she wants. But I suppose if I’m a bit cynical, for settlement purposes, someone might start that litigation in the hopes of arriving at some kind of compromise. So you know, certainly that’s an issue which regrettably can result in litigation on the odd situation. But, you know, we keep repeating the same refrain which is that the executor has that responsibility. And it’s worth also mentioning I think, Natalia, that you can say whatever you want in your Will about how you would like your remains to be disposed of; the reality is that the executor does not have to follow those, does he or she?

Natalia Angelini: Absolutely. He or she does not, but interestingly though, his or her duty is to dispose of the body in a manner suitable with the estate of the deceased. So even though the estate trustee may seem to be able to do whatever he or she wants, there’s definitely going to be criticism of a trustee who just, you know, goes ahead and, for instance, has an elaborate $50,000 funeral where the deceased has a fairly modest estate.

David Smith: Right. I think generally it’s expected that the funeral will be commensurate with the size of the estate, so I think that’s a really good point. And also, there’s just a moral duty, I think, in this situation, where you’d expect the executor to do what the testator wanted.

Natalia Angelini: Right.

David Smith: It’s probably worth doing a little segway here, while we’re on this topic. I mean, this has to do now with the issue of donation of body parts. And, of course, there’s legislation in Ontario that deals with that, right Natalia?

Natalia Angelini: There is. It’s the Trillium Gift of Life Network Act and it’s an interesting piece of legislation that allows a person to consent to the donation of their own body, or body parts, upon death.

David Smith: That’s right. So we’ve all sort of seen the situation where the consent card is kept quite often with someone’s driver’s license and this is an important priority. And, of course, it plays an important role in given the success of transplant surgeries and what have you, that this is obviously an important legislative prerogative that this kind of intention can be preserved, even if it’s not contained in the Will.

Natalia Angelini: Right. And a spouse or other family members can also give their consent, even if the deceased hasn’t done so during his or her lifetime. So the difference here, I think, with the ability to dispose of the body, is that the family members seem to get priority over the wishes of the estate trustee.

David Smith: Right and it’s obviously a specific situation but it’s important to know because it’s the one significant departure from the common law rule that the executor’s decisions are paramount.

Natalia Angelini: And frankly, it makes sense to me anyway.

David Smith: Oh, absolutely. I don’t see how we can quarrel with that. So you know, harking back to our topic for the day which is the executor’s duties, again it all boils down to fiduciary duty, doesn’t it Natalia? I mean really the executor’s got to make sure that he or she does what is necessary to see the intentions of the testator preserved.

Natalia Angelini: That’s right and I think it’s important to note particularly with this issue of disposing of the body, the estate trustee has to do so in a dignified way. And so I think that’s in keeping with fulfilling his or her fiduciary duty.

David Smith: Good point. Okay, so I guess we should move on to a couple of more issues, just given our limited amount of time that’s left. And we were going to touch on children and pets, in that order. So let’s talk about children briefly speaking. It’s possible in your Will, isn’t it, to speak to guardianship?

Natalia Angelini: That’s right. Under the Children’s Law Reform Act, you can appoint someone to have custody of your child upon your death, and I think sometimes people do this, and they put this provision in their Will and I’m not sure that they’re always aware that this has some limited value.

David Smith: That’s right. The appointment is valid for 90 days but, of course, it’s important to note that if anybody else is entitled to custody and is not named in the Will, that that person obviously has a right to exercise custody and it might be pointed out that an application for custody can be commenced within that 90 day period. And so, to some extent the wishes of the guardian, with respect to their children in their Will is somewhat precatory, isn’t it, in that it’s subject to other considerations.

Natalia Angelini: That’s right, but I think it may give some assistance to the family and to the children, really, so they know I guess who they’re going to be spending time with, at least in the short-term.

David Smith: True. And I guess the important point too is, in all likelihood, the custodial parent in their Will will say that if they die, in all likelihood, they’re going to appoint the other parent as the guardian of the children. I suppose you could have a situation where there are two parents, where one parent dies and provides in his or her Will that the guardian for the children is someone other than the other parent. And obviously in that situation, the other parent is going to have something to say about that.

Natalia Angelini: Absolutely, I’ve seen that type of case and I think, unsurprisingly, the other parent proceeded with an application in the Family Court for custody and that issue was resolved that way.

David Smith: Now the last point is in keeping with our concern about issues arising immediately upon death, of course, lots of people have pets. And lots of Wills provide for pets as beneficiaries. And pets need to be fed and watered, so obviously the executor’s got to look after that.

Natalia Angelini: That’s right and like you said, that’s definitely got to happen at the get go because we don’t want pets to be neglected. And they’re usually, especially if they’re in a Will, very near and dear to the deceased’s heart. So it’s important to make those arrangements.

David Smith: Right. And that’s going to also require the executor to act quickly as you pointed out. So good point as well, and Paul, in his paper, talks about crops and perishables. If you’ve got a business that’s running fresh produce for instance, and the business owner dies, any other perishable products, obviously it’s important to keep the electricity on, to keep things refrigerated and all of those sort of important things that have to do with ensuring that any inventory of the estate does not go to waste, because ultimately, the executor is going to be accountable to the beneficiaries, right, for what happens.

Natalia Angelini: Exactly. And I think, I guess the one thing to remember is, it’s so important for the estate trustee, I suppose to know, as far in advance as possible, whether he or she is a trustee and what the assets of the estate are and what the circumstances are so they can do their best to act as quickly as possible.

David Smith: Absolutely. That’s the biggest part of good estate planning, isn’t it? And it makes the job so much easier. And we should point out, too, that if it’s just an insurmountable job for the executor to take on, maybe you renounce.

Natalia Angelini: Right, or get a, if the estate assets can justify it, get a trust company in place or instead.

David Smith: Especially if there’s a business there, yeah, so I think that’s an important point to leave our listeners with is, you know, if you’re named as executor, you’re not duty bound to take on the job at all costs. If it’s not a realistic possibility for you to carry on the task, consider renouncing.

Natalia Angelini: Absolutely. Good point, David. So, I think that brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me today, David.

David Smith: It was a pleasure, Natalia. I really look forward to podcasting with you again soon.

Natalia Angelini: And we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com. Be sure to visit our blog at estatelaw.hullandhull.com. where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the show. I’m Natalia Angelini.

David Smith: I’m David Smith. Until next week, so long.

To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.

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Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, TOPICS, Estate & Trust, Executors and Trustees, Funeral Arrangements, Hull and Hull, Hull on Estates, Hull on Estates, Show notes, Wills, children, duties, estate, fiduciary accounting, guardianship, hull and hull LLP, pets, trustee

Compensation for Work Done by Estate Trustees and Solicitors - Hull on Estates #116

Posted on June 24, 2008 by Hull and Hull LLP

Listen to Compensation for work done by estate trustees and solicitors.

This week on Hull on Estates, Paul Trudelle and Diane Vieira discuss compensation for work done by estate trustees and estate solicitors.

Case citation:

Rooney Estate v. Stewart Estate 2007 WL3019262 (Ont. S.C.J.), 2007 CarswellOnt 650

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

Tags: PODCASTS / AUDIO, Beneficiaries, Compensation, Courts, Hull on Estates, Passing of Accounts, accounts, asset, debt, duties, estate law, hull and hull LLP, law blog, legal fees, release, solicitor, trustee, will, work done

A Trustee's Liability For Bad Investments

Posted on February 1, 2008 by Hull and Hull LLP

As we all know, it is not uncommon for any investor to occasionally experience a substantial decrease in the value of one of the stocks in his or her portfolio. But what if the investor is a trustee?

In light of the recent amendments to the Trustee Act which appear to embrace the modern portfolio theory, it will be interesting to see how the Court will utilize this theory to assess a trustee's investment performance. Section 28 of the Trustee Act adopts an approach that is consistent with the modern portfolio theory. Under this section, a trustee is insulated from liability if “the conduct of the trustee, which led to the loss from the trust, conformed to a plan or strategy, for the investment of the trust property, comprising reasonable assessments of risk and return that a prudent investor could adopt under comparable circumstances”.

Under the “statutory legal list” approach, which I described yesterday, a trustee was limited to investing trust assets in authorized investments. However, with the development of the prudent investor rule, trustees are provided with a broader range of investment choices, which will likely increase their responsibility in determining an acceptable standard of care.

Presuming that a trustee is found liable for breaching the standard of care, section 29 of the Trustee Act permits a court to assess “the overall performance of the investments” when it is assessing damages. Based on the language of section 29, it appears that a trustee may be allowed to offset the loss of a bad investment against the gain of a good investment.

The trusts and estates bar will be watching with interest to see how the judicial consideration of the prudent investor rule evolves.

Happy Super Bowl Weekend! Go Patriots!

Rick

Tags: Estate & Trust, Lawyer, Rick Bickhram, Trust, act, estate, hull and hull LLP, liability, section 28, section 29, toronto, trustee

Ontario Bar Association, Trusts and Estates Section Executive for 2007-2008

Posted on June 4, 2007 by Hull and Hull LLP

Last week, Paul Trudelle commented in two of his blogs on the well-deserved awards presented at the Ontario Bar Association, Trusts and Estates Section Year End Dinner that was held on Wednesday, May 30, 2007 at the Royal York Hotel. Specifically, Brian Schnurr was awarded the Award of Excellence, Jordan Atin the Hoffstein Book Prize and Peter Lawson the Widdifield Award.

In addition, Corina Weigl, the Chair of the 2006-2007 Section Executive presented a report on the past year's activities undertaken, and dealt with, by the Section Executive.

Following Ms. Weigl's report, the slate for the 2007-2008 Section Executive was dealt with and confirmed.

The 2007-2008 Section Executive is: Jordan Atin (Chair), Kimberly Whaley (Vice-Chair), Corina Weigl (Past-Chair) and Suzana Popovic-Montag (Secretary), together with the following Members-at-Large: Ann Elise Alexander, Robert Coates, Ed Esposto, Jan Goddard, Susan Heakes, Danielle Joel, Sean Lawler, Mitchell Leitman, Joanna Ringrose, Susan Stamm, Sender Tator, Craig Vander Zee, Mary Wahbi and Melanie Yach.

I thoroughly enjoyed working with this past year's Section Executive and look forward to working with the 2007-2008 Section Executive and Jordan, its new Chair.

Thanks for reading,

Craig

Tags: Archived BLOG POSTS - Hull on Estates, Ontario Bar Association, estate law blog, estates and trusts, hull and hull LLP

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