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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A September 8, 2009 endorsement of Justice D.M. Brown helps to clarify the costs of capacity litigation.

 Fiacco v. Lombardi, 2009 CanLII 46170 (ON S.C.) involves four siblings who disputed the management of their mother’s property. She executed a continuing power of attorney for property appointing all four of her children as her attorneys to act jointly. That didn’t go so well.

The mother suffers from dementia. In 2008, the four children entered into contested guardianship litigation over their mother; two were appointed guardians by on January 23, 2009 by Order of Cameron J. That round of litigation cost the mother $30,022.22.

The two children who were not appointed were ordered to provide information about their mother’s assets and the original will of their mother to the guardians, and to transfer assets to the guardians. They did not act quickly.

Justice Brown states, at paragraph 14, that “The view…that the Order did not require compliance forthwith was dead wrong: when a court appoints guardians of the property of an incapable person, any other person with notice of the order is required to deliver up immediately to the guardians all property of the incapable person that he or she might possess.”

At paragraph 10, His Honour states that the “respondents acted contrary to their obligations under the SDA [Substitute Decisions Act] and they obstructed their mother’s guardians in discharging their statutory duties.”

The SDA at sections 33.1 requires guardians to make reasonable efforts to determine if an incapable person has a will; and sections 33.2(1) and (2) require a person who has the incapable person’s will to deliver it to the guardian “when required by the guardian.”

The Court did not approve of the children seeking further funds ($29,154.14) from their mother’s estate to “fund their continuing sibling rivalry.”

Justice Brown emphasized that “capacity litigation should reflect the basic purpose of the SDA – to protect the property of a person found to be incapable and to ensure that such property is managed wisely so that it provides a stream of income to support the needs of the incapable person: SDA, sections 32(1) and 37.”

His Honour states that members of the Bar should not presume that all parties to contested capacity litigation will have their costs paid by the estate of the incapable person.

This endorsement emphasizes that family fights cost everyone involved. 

Enjoy the weekend. 

Jonathan

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

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We have reported on Alzheimer’s frequently in our blogs. A World Alzheimer’s Report released this week is another reminder of the widespread implications of the disease.

In Canada, about one in every 11 people over the age of 65 is living with Alzheimer's or a related dementia. Worldwide, the figure is about 35.6 million and it will grow to 115 million in 40 years. The report focuses on the impact on caregivers, healthcare infrastructure and the economy.

Of course the impacts will be felt in the legal field as capacity issues occur more frequently: a spouse caring for his or her partner; children caring for parents and the state stepping in when no one else is available to assist. Each scenario will require that guardianship issues be addressed; personal property and personal care decisions will ideally have been addressed in advance.

A story that unfolded over the last few years is a case in point. A Nova Scotia couple was separated as a woman with dementia was brought back to Britain against the wishes of her husband. The siblings who took her back to the U.K. claimed they were following her wishes. The husband said otherwise. The saga ended this week as the woman’s ashes were returned to her husband. 

Advances in medicine may halt the advance of this disease. In any event, it is advisable to consider continuing powers for property and continuing powers for personal care.

Enjoy your day. 

Jonathan

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

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Yesterday I wrote about Edward Kennedy – I began to wonder about the tax implications on his estate.

Assuming he held $75 million in assets, his estate would have been taxed at a rate of 45% and the bill owing would be $33,750,000. But this is unlikely because much of his wealth was held by trusts which, in Ontario, are separate taxable entities. 

My colleague, Sarah Fitzpatrick wrote in July 2008 about the upcoming changes to the U.S. tax law.  That time is four months away. Congress must act soon; if it does not, taxes on nearly everyone will soar under a plan enacted in 2001 called the Economic Growth and Tax Relief Reconciliation Act (EGTRRA) which provides that in 2011 the tax law that had been in effect in 2000 will reappear.

The estate tax is set to vanish for a year if nothing happens before the end of 2009 as the EGTRRA sunsets in 2010. In 2011, an effective rate of 55% on estates would come into effect.

Only a small number of individuals pay the estate tax each year. In 2007, there were 36,458 estate tax filers – out of 235 million total tax filers that same year in the United States.  . Smaller estates (under $3.5 million) make up the bulk of filers – over 60 percent in years 2002-2007. Large estates (over $10 million), however contributed between 18 and 30 percent of the total revenue in the same time frame.

During the 2008 campaign, President Barack Obama supported permanent extension of the 2009 law – effectively a permanent 45 percent top rate with $3.5 million exemption per individual ($7 million for couples).

Either side of the political spectrum will present different numbers, but what seems certain is that if there is no legislative action in the U.S. in the next few months, 2010 will be a good year for estates. My bet is that the large loophole will be filled quickly, especially as the U.S. operates with a large deficit.

Thank you for reading. Please remember that Hull & Hull is hosting another breakfast seminar tomorrow morning.

Enjoy your Wednesday.

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

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The death of Edward M. Kennedy on August 25, 2009 marked the end of era. The Lion of the Senate received much praise for his 47-year contribution to American politics. 

In his memoir – True Compass –  “Teddy” provides a posthumous review of his life and of his famous family.  It is a reminder that people leave a range of legacies when they die. Several of his siblings left their own mark, including his sister Eunice.  Edward Kennedy’s political accomplishments are a great part of his legacy. (I have read about JFK and Bobby and will enjoy this read.)

There is the financial side of Edward Kennedy’s life (and of each Kennedy) which presumably continues to back many of the endeavours of the current generation. Edward Kennedy, apparently, reported a net worth  in 2008 between $15 million and $72.6 million, but a year earlier the range was between $46.9 and $157 million. As a U.S. senator, Kennedy earned a base salary of $165,200 a year.

The main source of Kennedy's wealth was his father and family patriarch Joseph P. Kennedy, a former U.S. Ambassador to Great Britain, whose fortune stemmed from banking, real estate, liquor, films and Wall Street holdings that eventually grew to an estimated $500 million by the 1980s.

A big portion of that wealth came from Kennedy Sr.’s purchase of Chicago's Merchandise Mart  in 1945 for $12.5 million. Spanning two city blocks and rising 25 stories, the sprawling limestone and terra-cotta mart had its own zip code. It was the world's largest building until the Pentagon was built in the 1940s. The Kennedy family sold its interest in the Merchandise Mart in 1998 for $450 million in cash and a $100 million interest in the purchasing trust. The holdings of Edward Kennedy included a string of publicly and non-publicly traded trusts and assets. 

The Kennedy family contributed a great deal to public service. Liberal projects and public service work by the family is supported in part, I expect, by the resources available to them through family investments.

While we did not know the patriarch of the Kennedy family, we can glimpse the satisfaction he likely felt that his investments – in his family and businesses – contributed to the greater good.

The scale may be far different, but within our own families, each of us can support the work and the dreams of the next generation with careful planning and wise investments of our time, energy and financial resources.

Thank you for reading.

Jonathan Morse

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

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The Toronto International Film Festival brought stars to town and brought an estate issue into focus. The Art of the Steal  received accolades as a “thrilling whodunit” about the world-renowned Barnes art collection, valued in the “billions and billions.” Dr. Albert Barnes assembled art in the twenties and housed it in the suburb of Merion, Pennsylvania.

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

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

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

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

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

Have a good Monday.

Jonathan Morse

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

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My colleague Natalia Angelini blogged on February 18 of this year about the increasing possibility that independent, adult children may be entitled to dependant support.

A 2009 Ontario Bar Association paper by Susan Woodley concluded that moral obligations of deceased parents in Ontario may require them to provide proper and adequate support to their children, spouse and dependants.

While the legislation in British Columbia clearly distinguishes any case from that province, a consideration of a recent case on point illustrates the roots of this evolving trend. 

In Sikora v. Sikora Estate 2009 BCSC 195, two of four adult sons of the testator brought an action under B.C.'s Wills Variation Act.  The Deceased had one child by his first marriage, three children with a subsequent common-law spouse, and at his death he was married to the defendant, San Meei Sikora. The Deceased’s residue to be divided amongst three sons equalled just over $11,500.

The two plaintiff brothers maintained contact with their father despite a difficult childhood. Each plaintiff provided evidence of respective incomes of about $90,000 and $35,000 and described their relationships with their father whom they assisted in his business and investment properties over the years. The Deceased’s wife’s responses created some credibility problems for her.

Justice Cullen reviewed the case law from the Supreme Court, Tataryn v. Tataryn Estate and a B.C. case, Clucas v. Clucas Estate (1999), 25 ETR (2d) 175 (BCSC) that summarizes the principles of the Wills Variation Act.

In Sikora, the Deceased’s wife accumulated her own assets while the Deceased did not. The plaintiffs showed that despite their independence their father had a moral obligation towards them.  The residue of the Deceased’s estate diminished in a manner that favoured his surviving wife and his moral obligation to his spouse was less firmly established than in other cases.

The Deceased used his money to purchase the matrimonial home, allowing the defendant to invest her money and increase her own assets. The plaintiffs succeeded and were therefore registered as tenants in common on a property with a life interest to the defendant.

Thank you for reading this week.  Enjoy your weekend.

Jonathan

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Tomorrow is July 1^st.  It makes me think of Hatley, a small village in Quebec’s Eastern Townships and its annual Canada Day Celebration. (My wife grew up nearby.)  Across Canada, flags fly high and memories abound. 

If you will allow this segue, memories are often a significant part of estates that are easily overlooked.  When an estate arises, we often focus on assets without putting our mind to the deceased’s legacy.  For many of us, our papers and personal files do not amount to much. But it’s a different story for politicians.

An interesting paper from the Faculty of Information Quarterly at the University of Toronto compares the treatment of Presidents’ papers versus Prime Ministers’ papers. The retention of U.S. papers seems to be more statute driven, although presidential Executive Order can govern the ultimate treatment of documents.

Apparently, on his first day on the job, President Obama overturned President Bush’s order that had limited access to presidential papers. 

In Canada, Prime Ministers’ papers fall into two categories: government/institutional records and personal/political records. Former Prime Ministers receive tax credits for the value of the personal papers they donate to Library and Archives Canada. That value is not disclosed.

Similarly, in the U.S., some financial incentives exist for Presidents: in 2000, the Justice Department paid the Nixon estate $18 million to compensate for records seized in 1974.

In both cases, restrictions regarding the release of certain documents might apply. For example, apparently here in Canada, for 2.5 million records in the National Archives, one must write to Mr. Mulroney directly for permission. 

Have a safe, relaxing Canada Day.

Jonathan

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Many people, including myself, paused on learning of Michael Jackson’s death.   While I have not searched out his music for several years, his death marks the end of an era. 

Michael Jackson’s music is part of my memory of growing up. I attended his concert in October 1984 at the Canadian National Exhibition in Toronto.

Of course, in my role as an estate litigator, other thoughts also come to mind. Namely, what issues will arise in untangling Michael Jackson’s estate?

Some of these issues are addressed in a New York Times article. One executive describes the singer's estate as a "mess".  There are clearly valuable assets, including a 50 percent share of Sony/ATV Music Publishing which owns the rights to more than 200 Beatles songs; this asset alone may be worth more than $500 million.  Apparently these shares were not owned directly by the pop star, but rather by a trust controlled by his mother.  The shares therefore may not fall to Michael Jackson's  estate but they would be part of his legacy.

The estate has debts too: Neverland cost many millions of dollars to operate annually and in recent years there was a $24.5 million debt against the property. Some commentators estimate Michael Jackson’s overall debt to be $400 million. 

All of these issues – from copyright and real estate assets to Michael Jackson's personal and business loans – will take many months, if not years, to sort out.   

There were recent plans for a 50-concert comeback in London, England. Apparently fans had paid $90 million which will have to reimbursed and the concert preparations included payments for renovations to the venue as well as advance payments to Michael Jackson. 

As the administration of Michael Jackson’s estate unfolds, I suspect there may be more related topics to be covered in our blog.

Of course, for us regular folks, estate issues that we encounter in our own lives will be simple in comparison to the challenges faced by the Jackson family.  But there are some lessons: careful management of one’s affairs and good planning will lessen the load on named executors and estate trustees. 

Enjoy your Monday. 

Jonathan

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It's Friday in late April. The May long weekend and all that cottage fuss is just around the corner.  (I like the cottage, but understandably a lot of people choose the backyard.)

In Ontario, we do not have inheritance tax like they do elsewhere, including the United Kingdom. In some cases, the several-generation home has to be sold to cover a £14,000 tax bill or, in one instance, a painting donated in lieu of inheritance tax of £700,000.

To be certain, we have taxes here. At death, often there is a deemed disposition of property unless steps have been taken in advance. An article from last year provides some thoughts on how one might plan to avoid the situation where the capital gains tax cripples an estate or the next generation.

Apparently, and maybe not surprisingly, the cottage market may be down by about 20% this season. Good news for buyers. Maybe it is also good news for those who are looking at estate planning this year. 

If the goal is to keep a cottage in the family, relative to the previous few years it might be an opportunity to trigger a disposition by transferring the property this season and, presumably, incurring a lower capital gain. Each situation requires specific tax advice. 

The economy is lousy but it might be a chance to avoid financial strain and family tension for the next generation.

Have a safe weekend, wherever you spend it.

Jonathan

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On Tuesday I blogged about mortgage fraud and suggested that financial institutions may be at greater risk because of the B.C. Court of Appeal decision: Re Oehlerking Estate, 2009 BCCA 138.

Why would they be at increased risk?

In the B.C. case, the Judge ordered that the fraudster’s title be set aside and that a new title be issued in the name of the plaintiff executrix. However, the Judge was satisfied that the financial institution had not “participated in the fraud” therefore the mortgage remained as a valid charge on title to the land. 

The B.C. Court of Appeal overturned that latter point when it declared that the mortgage is null and void as against the plaintiff and her title. 

The reasons were the same as those presented in a B.C. Court of Appeal decision released on the same day in Gill v. Bucholtz  (2009 BCCA 137). There is a thorough review of the Torrens land registry system and the development of B.C.'s Land Title Act.  Land title systems differ per province but the B.C. decision is likely persuasive.

In Gill v Bucholtz, the Court held that the B.C. Legislature adopted the policy that the cost of frauds perpetrated against mortgagees and other chargeholders should be borne not by the public (as the funders of the Assurance Fund but by lenders and other chargeholders themselves.”

Parties to real estate transactions rely on title searches. The case law shows that title searches have limitations, especially if a fraudster has used someone else’s identification to change the title document. It is up to lenders to now perform due diligence that may require that they delve deeper than the documents alone. Sometimes good old fashioned shoe leather might be put to work to check out the property in question; even a knock on the door to ensure that the owner is actually refinancing by way of a new mortgage. This extra work may come with a fee though. 

Thank you for reading. 

Jonathan

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In keeping with yesterday’s blog on a British Columbia real estate matter, today I focus on another BC case - Albas v. Gabriel 2009 BCSC 198 - that involves the Indian Act, a federal statute. 

For a quick recap of the interplay between provincial and federal jurisdiction regarding estate matters and First Nations people living on reserves, I refer to David Smith’s 2007 blog: The Administration of Estates under the Indian Act. 

Albas v. Gabriel involved an action by the plaintiff, as executor of the estate, for a declaration proving the deceased's Will in solemn form.  The defendant beneficiaries appealed to the Minister of Northern and Indian Affairs because the Minister has jurisdiction to approve a Will made by an Indian and to confirm the appointment of an executor to administer the estate. Specificially, the Minister’s authority is provided by section 43 of the Indian Act.

A member of an Indian Band and a resident of a reserve, the deceased operated a trailer park and he was a “locatee” of the land because he owned “certificates of possession”: valuable assets that he left equally to his daughter and two step-children. This was just one of the businesses with which the deceased was involved.

The daughter challenged both the validity of the Will and the administration of the estate. The judge determined that the daughter believed that if the Will was declared invalid, she would inherit the entire estate.

Because of the Will challenge, the Minister transferred jurisdiction over the estate to the Supreme Court of British Columbia pursuant to s. 44(1).

Ultimately, the Court found that the Will was valid because it was not forged and the testator had capacity as well as knowledge of the Will which he approved.

Enjoy your day.

Jonathan

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The 2009 federal Budget contains a few items relevant to Estates, particularly with respect to Registered Retirement Savings Plans (“RRSPs”). 

For a thorough review please see the 343-page document.  A Bloc Quebecois amendment to the Budget yesterday evening was defeated; Opposition Party amendments have yet to occur.  Budget speech to approval of the Budget motion could take up to four days.

While there are benefits for first-time home buyers in the Budget, and a host of infrastructure investments, not everyone is happy. Other media view the bad-time Budget as possibly providing the boost we need.

Regarding Estates, the Budget proposes that certain losses now be applied against terminal income – see page 318 of the Budget. The fair market value of investments held in an RRSP at the time of an RRSP annuitant’s death is generally included in the deceased’s income for the year of death. A subsequent increase in the value of the RRSP investments is generally included in the income of the RRSP beneficiaries upon distribution.

Similar rules apply in the case of Registered Retirement Income Funds (RRIFs). 

There is, however, no existing income tax provision to recognize a decrease in the value of RRSP or RRIF investments that occurs after the annuitant’s death and before they are distributed to beneficiaries.

Budget 2009 proposes to allow, upon the final distribution of property from a deceased annuitant’s RRSP or RRIF, the amount of post-death decreases in value of the RRSP or RRIF to be carried back and deducted against the year-of-death RRSP/RRIF income inclusion. The amount that may be carried back will generally be calculated as the difference between the amount in respect of the RRSP or RRIF included in the income of the annuitant as a result of his or her death and the total of all amounts paid out of the RRSP or RRIF after the death of the annuitant.

Assuming the Budget motion passes, this measure will apply in respect of deceased annuitants’ RRSPs or RRIFs where the final distribution from the RRSP or RRIF occurs after 2008.

This change, especially in this uncertain economy, might help to make a weak financial situation a bit more palatable.

Thank you for reading our blogs this week.  Enjoy your weekend. 

Jonathan

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What does an executor do?

The first responsibility is to tend to funeral arrangements and then to gather up all the information relevant to the Estate. This information includes the ownership and value of assets, as well as the nature of all Estate liabilities. These responsibilities need to be taken seriously. 

Some other duties include: make provisions for dependants; notify various government agencies of the deceased's death; collect income from assets; decide about investments; seek advice as required.  The executor’s role is similar to that of a trustee: both owe a duty to the beneficiaries. 

When one plans his or her Estate and prepares a Will, it is useful to consider the attributes of a successful executor.  Some questions might be:

• Is the person organized?
• Does the person have financial skills? 
• What is the demeanour of the person who is being considered as an executor?

A recent British article asks more questions. One point, among many, is that “Honesty and conscientiousness are important, but if you are appointing more than one executor - and often that's a good idea - they also need to be team players.” 

Each situation is different but the hard and soft skills of a potential executor are likely useful considerations.

Examples abound to illustrate what might go awry. Take the Estate of the renowned violinist, Isaac Stern. In 2004, the beneficiaries of the Estate were disappointed when the executor failed to include the value of the deceased's  New York apartment in the calculation of the Estate's value. This decision resulted in a shortfall of funds to meet the Estate’s liabilities. Legacy items, including musical instruments, were apparently sold at auction to the beneficiaries' collective dismay.

Choose your executor(s) wisely.

Enjoy your Thursday.

Jonathan Morse

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The British lawyer and author, John Mortimer, died on January 16, 2009. During his 85 years he produced more than 50 novels, biographies and memoirs. Of course he was best known for the creation of Rumpole of the Bailey.

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

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

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

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

Thank you for reading.

Jonathan Morse

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Annuities are often employed when an individual plans his or her estate. We have covered different aspects of annuities on past blogs on Hull on Estates.

A testator, for example, may choose to have one child’s portion of the future estate placed into an annuity that will create a flow of money over time. The child would have access to the cash flow, but not necessarily access to the principal amount. 

In September 2008, Gayle Reid applied to the Superior Court of Justice for an interpretation.  The claimant’s father, Bernard Wiesberg, died and left an annuity to his friend, Avonne Richter (also identified as his common-law spouse). Minimum annual payments of the annuity were directed in the Will to Ms. Richter who received them from 2003 through to 2007. 

The Applicant was to receive the residue of her father’s estate.  A 2005 Order by Dandie  J.  required Ms. Richter to designate Ms. Reid as the beneficiary.  (A provision of the Income Tax Act required the beneficiary to be named, otherwise the retirement income fund would have collapsed, defeating the testator's intent.)

The issue arose when Ms. Richter, who received the previous annual annuity payments in arrears up to 2006, chose to take the $17,015.57 payment in January, in advance for that year. Ms. Richter died on April 17, 2007.

The Applicant sought an interpretation of her father’s Will, specifically regarding the annual payments. As the payments were for the “lifetime” of Ms. Richter, the Estate owed $12,027.44 to the Applicant because the Court reasoned that calculations must be made to the date of Ms. Richter’s death. Therefore a pro-rata calculation was “the only reasonable and fair manner to ensure the two gifts in the Will are honoured.”

If the annuity had been paid in arrears that December, Ms. Richter’s Estate would have been owed a pro-rata amount of the annuity for that year calculated to the date of her death.

Have a good day.

Jonathan

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My mother used to volunteer with Goodwill, where one of the projects was a contents sale. A team from Goodwill would organize a home’s contents for sale – I have a frying pan purchased from one of those sales.

Several organizations exist to assist with different aspects of the moving process. One such example is Marsha’s Helping Hand, which helps when clients, particularly elderly people, want to downsize.   

There are a lot of memories to manage and items to be packed up, distributed or possibly sold. Often the house itself must be sold. Many scenarios are possible – elderly people are downsizing or a home is being sold as part of an estate. 

Estate sales can be slow however.  Recently, the New York Times focused on this issue: delays can occur in transactions because of the dynamics between distant beneficiaries and the estate trustee, or even because of the emotional energy required by heirs who are assisting with the removal of the Deceased’s belongings. 

There are understandable reasons for the delays in the estate sale process. Not least of which is that often the people who want to do the job are themselves busy with multiple responsibilities, be it child care or parent care or the demands of a paying job. Help is available though.  Organizations, which cater to these increasing needs can assist, according to a recent Globe and Mail article.

These practical issues often dovetail with legal duties of the Estate Trustee, a role that may be more manageable when a plan is in place. Costs should always be considered though because ultimately, the Trustee has a duty to account to beneficiaries.

Enjoy your day.

Jonathan

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It’s Hallow’s Eve – there will be candy all round tonight. Well, all weekend if we’re lucky.

And, fittingly, just in time for the sweet sound of “trick or treat” Mars, Inc. completed its purchase of the Wm. Wrigley Jr. Company earlier this month; the $23 billion transaction was initiated earlier this year by Mars. Two wealthy family dynasties reached a deal to secure for each giant a greater piece of the world’s confectionary market.  

The privately-held Mars with its headquarters in Virginia controls information very tightly; three grandchildren of Franklin Mars apparently live on a vast ranch in Wyoming. 

In 2002, after his father’s death in 1999, issues arose about Bill Wrigley Jr.’s right to vote the company shares held in a trust set up by his grandparents three decades earlier. The trusts sheltered nearly $3.2 billion, which was particularly important for him given his pending divorce. Presumably, shares held in trust are not part of the family assets to be divided at the time of divorce. The claimant insisted that the votes attached to the shares in trust were to be shared by other beneficiaries. The recent transaction seems to have smoothed over some family differences.

In Ontario, recently, Frye v. Frye Estate, 2008 ONCA 606 (CanLII) emerged with less fanfare but it is significant nonetheless. The Court of Appeal addressed the tension between a shareholders’ agreement and the rights of a beneficiary who received shares under a Will from a signatory of the agreement.  The Justices seem to have neatly balanced competing estate and corporate principles.

Have a good night.  Boo.

Jonathan

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The cooler weather is cause for many people, retirees especially, to plan an annual sojourn south.

In preparing for the winter, protecting real property -- often a significant asset -- may be top of mind.

My colleague, Paul Trudelle, wrote about "Real Estate Transactions Involving Powers of Attorney" in July 2008.  While travelling south for the winter does not require a sale, steps can be taken to minimize risks to real property.  The Government of Ontario suggests that to avoid real estate fraud one should protect his or her identity and be alert to identity theft.

Regarding a Power of Attorney, the government also suggests caution:  "Whenever you give another person a power of attorney that permits them to deal with your personal assets, you should consult with your lawyers or advisers regarding appropriate limitations."

In a 2004 Canadian Bar Association paper -- Cross-Border Issues for Snowbirds and Roaming Retirees - Marilyn Piccini Roy wrote: "If the Snowbird owns real estate elsewhere, this power of attorney may not be recognized there if the law of the situs applies its own law to the formal or substantive validity of the power of attorney or to its effectiveness vis-à-vis third parties."   If a Power of Attorney deals with assets in different jurisdictions, one should seek legal advice in the jurisdiction of the asset(s).

Recent Ontario case law highlights issues that can arise regarding real estate when a fraudulent Power of Attorney is used.  Reviczky v. Meleknia; Caplan (Intervenor) 2007 Canlii 56494 (On. S.C.) raises quesitons about a solicitor's duty to"go behind" a Power of Attorney by enquiring about the donor's mental capacity at the time of signing and later, as well as evidentiary requirements.  The recent case law reminds all of us, including snowbirds, of the risks that exist with a Power of Attorney.  

Jonathan Morse 

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As a WWII pay officer in the Canadian military, my paternal grandfather met a British woman on the beach when he was stationed in the south of England. They married soon after the War and retired in England in the mid-1960s.  My grandfather died in the early 1990s; when my step-grandmother, Tessa, died in 2008, in her Will she left her house to my father and aunt.

If there were no Will, Tessa's estate could have contributed to the British government's coffers.  In that circumstance, a probate research firm could have played a role. 

Title Research is one of the firms highlighted in yesterdays blog about "heir hunters".  Its services include: searches for missing beneficiaries, heirs, and legal documents (such as marriage, birth and death certificates back to the 1800s); asset research to value, verify and find missing or unknown assets; missing beneficiary indemnity insurance; probate valuations; and will searches to determine that the Will is the deceased's last will. 

If Tessa had died intestate, Title Research, and other firms, could have located her heirs around the world.  Alternatively, if the estate trustee had questions about the value of the estate assets, or had the trustee not known the whereabouts of the beneficiaries, it could have enlisted a search firm's services as some anecdotes suggest.

Potentially trustees can protect their personal liability by engaging a firm that has a best practices endorsement of Britain's Law Society.  It seems that an estate need not just have ties to the UK, but the extent of a firm's expertise in a specific jurisdiction would have to be assessed.

Interestingly, some of the detective work can be done by amateur sleuths: www.findmypast.com and www.ancestry.co.uk allow access to census data from the 1800s and a host of other historical information.  If genealogy is in your blood, it's a place to start.  And, as one UK law firm suggests, it might be advisable to do some of your own investigating.

Jonathan Morse

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In Scotland for my honeymoon, I encountered a few different “estates”. Hiking the West Highland Way – averaging about 12 miles a day – we passed Blackmount Lodge, in the Bridge of Orchy. The lodge, owned by the Fleming family (of James Bond fame) sits on the edge of an idyllic loch. It took a day to walk across the estate.

Fellow walkers from Britain were interested to learn that I work in estate litigation. After sorting out differences in our terminology, they asked if “heir hunters” exist in Canada. I was intrigued.

While I still do not know the extent of “heir hunting” here, I learned that Heir Hunters is a BBC series that follows probate detectives who look for distant relatives of people who have died without making a will. I have not heard of a similar program in North America.

Several UK firms track down missing relatives: Fraser and Fraser  and Title Research are two examples. About 545,000 people die in Britain every year and half of them do not have a will. As in Ontario, there are rules in Britain which dictate that when people die intestate, their estate passes to the deceased’s legal next of kin. In Britain, if there is no family, the estate falls to the Crown.  The Guardian claims that £10 million to £20 million falls to the government every year because there is no one to claim the estate. Heir hunters locate the next of kin and alert them to their inheritance; there is a finder’s fee of up to 25% of the amount.

Many people in Canada can trace their roots to the United Kingdom. Estate practitioners, if advising estate trustees, would be well served to keep “heir hunting” firms in mind. 

Thank you for reading.  Enjoy your day.

Jonathan Morse