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

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Who says estates law isn’t glamorous?   A French judge in Nanterre, on the outskirts of Paris, has recently rejected the second attempt by Francoise Bettencourt-Meyers to obtain guardianship over her mother, Liliane Bettencourt.  87-year-old Bettencourt is the sole heir of L'Oreal, the world's largest cosmetics and beauty company that her father founded in 1909. She is the richest woman in the world, with her current fortune estimated at 17 billion euros.

Bettencourt-Meyers failed to produce a medical certificate and “in the absence of this document, nothing more can be done”, the Paris official said.  

According to Aol News, Bettencourt-Meyers wishes to protect her mother from a celebrity photographer who befriended Bettencourt and to whom the heiress has given gifts totaling a billion dollars.  France24 reports that Bettencourt accuses her daughter of "vile doggedness" and impatience to get her hands on her fortune.      

Whether a guardianship application is motivated by the desire for power and money or genuine love and concern, a court will not interfere with an individual’s autonomy lightly. For information on when a court will order a capacity assessment, see my previous blog on this topic here.

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

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

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

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

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

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

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

Thank you for reading!

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

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My wife has a not-so-secret crush on Dr. Sanjay Gupta.  In late May, three and a half months prior to 72 yr old John McCain's shocking selection of his 44 yr old running mate, my wife caught a Dr. Gupta special on CNN called "The First Patient".  The program explored in detail, presidential physical and mental health throughout history and the mechanism for substitute decision-making in this regard.

Interesting topic for a blog I thought to myself.

The 25th Amendment of the U.S. Constitution "deals with succession to the Presidency, and establishes procedures both for filling a vacancy in the office of the Vice President as well as responding to Presidential disabilities" (Wikipedia).  This Amendment has only been invoked 6 times since its ratification (and two of these occasions actually involved application of a Section of the Amendment that allowed for the appointment of a Vice President during a Vice Presidential vacancy).  Incredibly, the following occasions did not result in the invocation of the Amendement:

• Abraham Lincoln lying unconscious for several hours after he was shot until he died;
• James Garfield being incapacitated for eighty days by an assassin's bullet before dying;
• Woodrow Wilson suffering from a stroke which left him disabled for the last eighteen months of his term; and
• Dwight D. Eisenhower suffering from a heart attack in 1955 and a stroke in 1957.

Even after the assassination attempt by John Hinkley in 1981, then-President Ronald Reagan did not invoke the Amendment (although there was a heated debate about this amongst his aides).

As an aside, my wife tells me that the 25th Amendment has been invoked 3 times in the television series 24 in seasons 2, 4 and 6 (she's also a bit of a Kiefer fan).

David M. Smith

Not a neurosurgeon. Not Jack Bauer. But secure with myself anyhow.

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