While it seems appealing to me now, the reality when the time comes may be something very different. For many the transition from the working world is not a smooth one – from both a financial and emotional standpoint. So how do we get ready?

From a financial perspective, putting your finances in order is necessary. The Wall Street Journal offers a simple list on how to do this.  An interesting article on the subject also speaks to being emotionally ready, and notes as follows:

·                    Think in terms of retiring to something, not retiring from something - "The Journal quotes Jonathan Guyton of Cornerstone Wealth Advisors in Minneapolis: If your definition of retirement is framed in terms of what you are leaving, you are setting yourself up for a much more difficult transition emotionally. Even if it’s just some relatively small thing that you are energized about and this is something you get to do right now … you generally do much better.”

·                    Phase into retirement – "first scaling back your hours and responsibilities, or maybe taking a part-time hobby job, so that you don’t suddenly have an endless amount of time to fill. This strategy has the added benefit of keeping some wage income, which will help stretch your nest egg."

Another idea the author cites is “practice retirement”, which entails staying on the job longer (either full-time or part-time), but instead of saving your income, use it to take vacations, fund a hobby or indulge in other ways that will help you figure out how you want to spend your retirement. 

Enjoy the weekend!

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

·                    it is estimated that 1.1 million Canadians will be affected by the brain disorder in the next 25 years;

·                    almost half of Canadians surveyed lived a year or more with their symptoms without seeing a doctor, and 16% of this group waited more than two years;

·                    among the most common early symptoms were frequent memory loss, disorientation of time and place and changes in personality, and more than half of the respondents indicated the reason for the delay was the belief that symptoms were part of “old age”; and almost a third of respondents cited their family member refusing to see a doctor as cause for delay; and

·                    delayed diagnosis results in a large treatment gap, and prevents people from getting valuable information about medications, support and better disease management.

The Alzheimer Society of Canada reportedly emphasizes the importance of getting the word out about investigating dementia, since awareness can help one get support, plan for the future and take advantage of the pharmacological and other ways to deal with the disease.

Have a good day,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

·                    the entitlement should be applied after two years of cohabiting if a couple has a child, providing the child was living with the couple when one parent died;

·                    qualifying cohabitants should have the same entitlement under the intestacy rules as a spouse; and

·                    if the deceased has a husband or wife from a "fossil" marriage – where a couple are living apart but have never divorced – the surviving cohabitant has no entitlement to any of the estate.

The Law Commission apparently notes that cohabiting couples are among the people least likely to have a will. Under the current English intestacy laws, similar to our legislation, property is passed on to family members in order of closeness of the blood relation. However, like our system, unmarried partners are currently not entitled to the deceased partner’s property, but can apply to court for support. That said, this can be a costly and time-intensive process. I have always found it unfortunate in cases where long-time common-law spouses had to bear the expense and emotional drain of fighting for their dependant support award.   

Given the reality here and abroad that cohabiting unmarried couples represent an increasing percentage of families, this type of legislative change may soon be solidified in the United Kingdom and make its way to us. It seems from the comments I read about this article that people are divided on the subject. I, for one, think that it is time for this type of review, especially if it could lead to a reduction in or narrowing of the types of dependant support claims we see in our system.

Thanks for reading,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

Reportedly, Tommaso inherited the money when his owner, Maria Assunta, recently died at the age of 94.  Assunta was the widow of a property tycoon, and had no living relatives.

The estate's lawyer arranged for the assets and the cat to go to Assunta's former nurse (in Italy one can not gift assets directly to their pets), who now lives in an undisclosed location.  Unsurprisingly, there have been lots of offers to adopt Tommaso.

Tommaso is the richest cat in the world (and third amongst the wealthiest pets). Top ranking goes to Gunther IV, a German shepherd who reportedly inherited $372 million dollars from his father, Gunther III, the beloved companion of an eccentric German countess.  Kalu the Chimp finishes in second place by virtue of an $80 million dollar inheritance. 

Other rich animals are those of Oprah Winfrey, who is apparently planning to leave her dogs $30 million.   Leona Helmsley famously left $12 million to her little dog Trouble, although after a challenge to this gift, Trouble's pot was cut to $2 million.  And Michael Jackson left Bubbles the Chimp $1 million.

I can hardly imagine what kind of fanciful Christmas present Tommaso will be getting, although I'm glad my doggie will be happy with a run in the park with her friends, and lots of hugs and kisses.

Merry Christmas and Happy Holidays!

Natalia R. Angelini - Click here for more information on Natalia Angelini. 
 

We previously blogged on this case in 2009 and 2010, as it wound its way through the court system. At issue was the validity of two Wills.  The more recent Will left the entire estate to the widow, which Will she was seeking to have declared valid. 

Mr. Gatti’s family contended, however, that an earlier Will was the valid last Will, which left the bulk of the estate to Mr. Gatti’s mother.  Importantly, the signed prior Will was never located. 

The Court found that the last Will was valid, and that Ms. Rodrigues did not manipulate Mr. Gatti into signing it.

The decision does not end the legal troubles for the estate and the family, since it is reported that there is a court date coming up in New Jersey to deal with a wrongful-death suit by Mr. Gatti’s former girlfriend Erika Rivera, the mother of his daughter, Sofia, and there is a trial pending in Florida involving a man suing Mr. Gatti for injuries he allegedly received from the late boxer.

Thanks for reading,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

Several European and other countries have forced heirship laws requiring a person to pass a fixed portion (typically between a third and one half) of his or her estate to children or a spouse. However, these succession laws may not always apply.   For instance, the author notes that when it comes to ones assets abroad, English courts apply domestic succession law to movable assets (i.e. investments, cash, bank accounts, personal possessions etc.) but may follow the succession law of the country where immovable assets are (i.e. land and property). 

In addition to the conflicts than can arise from cross-border issues affecting your will, there may also be added tax consequences.

Ways to minimize difficulties include:

                    making an additional will abroad for foreign assets, as this may eliminate language ambiguities and make it quicker and less costly to deal with the administration of your estate (any foreign will should not conflict with or revoke your domestic will - careful wording is often needed); and

                    obtain legal advice from foreign lawyers who specialize in the field of their own succession laws, both when making your will and when purchasing property abroad.

Thanks for reading,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

There are 15 quotes from various artists and you can vote online for your favourites. Here are my five favourites:

5.         “I should never have switched from Scotch to Martinis."  By Humphrey Bogart

4          "Dying is easy. Comedy is hard."  By George Bernard Shaw

3.         "My wallpaper and I are fighting a duel to the death. One or the other of us has to go."  By Oscar Wilde

2.         "Go on, get out! Last words are for fools who haven't said enough!"  By Karl Marx

1.         "Die, my dear? Why, that's the last thing I'll do!"  By Groucho Marx

Have a great weekend!

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

In J.P. Leveque Bros. v. Ontario, a motion for leave to exceed the seven hour time limit was before the court. The motion was granted.

The motion judge stated that the court must consider the factors set out in Rule 31.05.1(2), including effective representation, cost efficiency and expediency.

This decision is instructive in that the court interpreted the limit of seven hours to mean seven hours of "actual discovery" on the record, such that it does not include breaks, adjournments, a party's bad conduct or unreasonable interference that results in unduly shortening examination time.

The court also stated that: "...in circumstances in which the time limit agreed upon in the Discovery Plan has expired and counsel is at a crucial point in his/her examination on an issue central or germane to the case, flexibility ought to be brought to bear and that further time to a maximum of one hour to continue and conclude the examination would not be unreasonable in the circumstances".  Further, where there are multiple parties this additional one hour should be recovered by being deducted from the examination of another party.

Have a good day,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

Another option available to you is to create your own virtual memorial site before you die.  The author notes that this service can carry complex instructions, messages or videos from you to ensure that your tomb is created as you want, after your death.

While the concept of an I-tomb may be hard to envision as having much popularity, the internet is already changing things.  For example, it has become commonplace to turn somebody’s Facebook page into a tribute page after death. Internet services also reportedly exist to send emails to relatives when loved ones die, or post public death notices.  Add the fact that physical burials are much more costly and the growth of the world's population will make finding space for such burials more challenging (see this article about a Spainish cemetery that is moving bodies from graves whose leases have lapsed in order to make room for new burials), and it seems to me that this virtual burial option will appeal to many.

Thanks for reading,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

“Assisted suicide, outlawed under the common law, has been prohibited by Parliament since the adoption of Canada's first Criminal Code.  The long‑standing blanket prohibition in s. 241(b), which fulfils the government's objective of protecting the vulnerable, is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken.  This state policy is part of our fundamental conception of the sanctity of life.  ...  No consensus can be found in favour of the decriminalization of assisted suicide.  To the extent that there is a consensus, it is that human life must be respected.  This consensus finds legal expression in our legal system which prohibits capital punishment.  The prohibition against assisted suicide serves a similar purpose.  Parliament's repeal of the offence of attempted suicide from the Criminal Code was not a recognition that suicide was to be accepted within Canadian society.  Rather, this action merely reflected the recognition that the criminal law was an ineffectual and inappropriate tool for dealing with suicide attempts.  Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or unfair.  The prohibition relates to the state's interest in protecting the vulnerable and is reflective of fundamental values at play in our society.  Section 241(b) therefore does not infringe s. 7 of the Charter.”

Notwithstanding this decision of Canada’s highest court almost 20 years ago, the Canadian Lawyer (October 2011 issue) notes that the issue is coming before the Supreme Court of British Columbia on November 15, 2011 in the case concerning the family of Kay Carter. Her family accompanied her to Switzerland, where she died by assisted suicide at the Dignitas suicide centre. The issues to be decided in the case appear to be whether Carter’s rights were violated by a law that prevented her from dying by euthanasia or assisted suicide in Canada, and whether Carter’s daughter and her husband broke the law by aiding her in planning for and going to the Dignitas suicide centre. Constitutional and conflict of law issues will likely both be at play at the hearing. 

The decision will be something to watch out for.

Thanks for reading,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

The opportunity of obtaining leave to appeal to the Supreme Court of Canada does not come around too often in our area of practice. While daunting, it is a challenge I would love to meet. That is why I was captivated by an article in the National (Volume 20, No 7) addressing what we need to know before seeking leave.

 The key points I noted are:

·                    Different test - it is not good enough to file the factum relied on before the Court of Appeal; you are addressing a different test - the public importance or national interest test.

·                    Reframe the Case as a Public Importance Issue – this is critical - Supreme Court Rules were recently amended to require applicants to highlight the public importance of the case at the outset of the written materials. While we are encouraged to lift our sights and put the judgment in a broader context, the difficulty may be that “public importance” has not been defined.  That said, some guidelines do exist, such as the issue of public importance must be central to the case and not moot or about to be dealt with by legislation.

·                   Pause – you may want to reflect for a week or two, then write a couple of pages about why the issue is one of public importance (not why the Court of Appeal erred) and have a colleague review it.

While the main theme here is public importance, given that only about 10% of leave applications are successful, and this test seems to be the gatekeeper, it is a point worth stressing.

Have a good day,

Natalia R. Angelini - Click here for more information on Natalia Angelini

That said, we still use paper for certain aspects of our work, including to file materials with the courts. An article in the September issue (Vol 20, No. 6) of the Canadian Bar Association’s National addresses the fact that while e-discovery and technology has changed the way we litigate, the courts in Canada are lagging behind. 

E-trials continue to be rare in Canada (in contrast to the US). The Honourable Mr. Justice Gans has reportedly commented on the issue, suggesting that reticence from some judges to use a document management system in a trial and the fact that the (Ontario) Ministry of the Attorney General has yet to get behind the initiative, means that pressure to move the courts towards more e-trials needs to come from the lawyers. 

The author advocates the benefits of having this available to us in the courtrooms, including saving trial time and assisting in making clearer arguments as it will likely be easier to knit all of the documents, videos and images of evidence together.   

Enjoy the weekend,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

- Put yourself in the position of the judge who knows nothing about the matter - identify and frame the key issue and think about the story you will tell around it so as to reach the best conclusion;

- Write an overview statement (one page maximum) that tells the court what the case is about, the issues and your position on them - the overview is important and gives judges the road map for the rest of your factum;

- State your point before you develop or discuss it;

- Ensure the pages have enough white space, as it improves the visual impact;

- Story-telling is persuasive - first tell the court why you should win (how you present the facts) and then how to get there (how you present the law);

- Candour is essential - be fair to the record, don't overstate your claims, face up to your weaknesses and don't denigrate your opponent's case;

- Avoid using "it is respectfully submitted" more than twice, avoid false intensifiers, avoid the word "not" and avoid excessive us of the passive voice; and

- Last but not least - be concise.

Thanks for reading,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 
 

·                    In Toronto, applications are to be brought on the Estates List;

·                    Although it is a good idea to commence an application within the six-month limitation period from the issuance of probate, minor children’s claims are not bound by this limitation period; that said, if an estate is administered prior to the claim being commenced, the relief sought may be difficult to obtain;

·                    Where one dependant commences a claim, insofar as the limitation period is concerned, it is deemed to be an application on behalf of all persons who might apply;

·                    Minor children can not sue or be sued without a litigation guardian in place - the title of proceeding should reflect this and the materials filed should comply with the requirements of Rule 7 of the Rules of Civil Procedure;

·                    The proper respondent in a dependant support application is the estate trustee, not the beneficiaries, although the beneficiaries must be served with the application materials; and, where a minor is a beneficiary, The Children’s Lawyer must be served with the materials; and

·                    If writing to The Children’s Lawyer prior to commencing a dependant support claim, it is helpful to include a family tree, the names and birthdates of the children, copies of relevant documentation, a copy of probate, detailed financial information about the child’s surviving parent and a summary of the facts.

Additional information about The Children’s Lawyer and its role in respect of dependant support claims can be found in the materials from The Dependant’s Support Application: From Notice of Application to Trial, held on September 27, 2011.

Have a good day,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

·                    the general rule is that capital property of a taxpayer is deemed to have been disposed of immediately before death for fair market value;

·                    the most general exception is where property is transferred and vests in a spouse or common law partner;

·                    a terminal return must be filed for the taxpayer;

·                    penalties for late filing will apply if a return is not filed - 5% of tax owing to a maximum of 17% (interest accrues and compounds daily);

·                    estate trustees are jointly and severally liable to pay any taxes, penalties and interest owing to the extent that they are in possession and control of the estate property;

·                    beneficiaries may also be liable to the extent of assets received for the tax liability of the deceased/estate;

·                    tax planning is required when there are ongoing trusts and in respect of the “deemed disposition” rules that arise in respect of trusts in wills; and

·                    an executor is entitled to make a special election to apply capital losses that arise in the first tax year of the estate to the deceased’s terminal return, thereby reducing capital gains arising on death from the loss.

The authors address these and other points in greater detail, which makes it a worthwhile paper to have at the ready.

Thanks for reading,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

Johnston is a former dean of law at the University of Western Ontario, and is a lawyer who knows that of which he speaks. He commented that as lawyers we enjoy a social contract with society whereby in return for self-regulation and a monopoly over the practice of law, we are duty bound to improve justice and serve the public good.

He further commented that Canadians in all provinces wait too long to have their cases heard in court, and face unacceptable delays once there. He singled out Ontario for the worst court processing times in the country, and said that despite efforts to reverse the trend the pace of change is slow.

Johnston said judges and lawyers must act with urgency to break through what criminologists have called a court culture of complacency, if they hope to streamline the process.

Other comments of note by Johnston were that Canada’s law schools are losing touch with practicing lawyers in the real world, and rely too heavily on narrow criteria, such as the standardized Law School Admissions Test (LSAT), for selecting new students.

He also lamented the lack of work-life balance in law firms that penalize those with a family. 

Johnson and another esteemed keynote speaker, the Honourable Madam Justice Beverley McLachlin, Chief Justice of Canada, both commented that the profession must make legal services more affordable and accessible to Canada’s millions of middle-class citizens.

He offered some good advice in suggesting we must engage our most innovative thinking to redefine professionalism and regain our focus on serving the public.

You can read more about Johnson’s speech and reaction to it in articles by Richard Foot for Postmedia News or in the Globe and Mail.

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

While assessing capacity involves a complex analysis, the key question for the assessor seems to be: if there is an impairment, can it be overcome? In order to assist the assessor in completing his/her analysis, information sharing is important and can be the key to obtaining a more precise report. Dr. Michel Silberfeld states that it is particularly helpful for assessors to understand as much as possible about their legal direction and objective insofar as the assessment is concerned.[1] He suggests that the following information be provided: (a) the triggering event for the need for the assessment; (b) what the indications of incapacity were, if any; (c) a discussion of the type of assessment required; and (d) which legal capacity should be assessed that will meet the legal objective.

Dr. Silberfeld notes that when assessing capacity to manage property or to give a power of attorney for property, it is generally important to have independent corroborative information about income and expenses, and knowledge of any failures in the management of property.

He also stresses the immense aid the medical information can provide, i.e. recent medical records, list of medications and list of diagnoses from the attending physician.  Providing the assessor withthe appropriate legal, medical, and relevant historical information, as well as the contact information for family members and/or friends that can provide corroborative information, will assist in obtaining a more accurate and timely report. 

Have a great weekend,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

The accountability provisions of the SDA have not been fully tested, leaving uncertainty regarding the parameters of an attorney’s functioning. That said, the decisions being made appear to reveal the courts leaning towards a strict construction of the scope of an attorney’s authority to act.   

For example, in Volchuk v. Kotsis, the Court disallowed a series of purported gifts (cheques and money transfers) effected by an attorney, noting, in addition, that attorneys were precluded from relying solely on their own evidence by section 13 of the Ontario Evidence Act (which provides that evidence must be corroborated by other material evidence). 

Further, in Biamonte Estate v. Ward Estate, a property owned by three deceased persons as tenants in common, and ultimately conveyed by an administrator of one of these estates to benefit her son, was found to be an improper exercise of the power of attorney.   

In addition, in McMullen v. McMullen, an elderly widower commenced an application against two of his three daughters, who held his power of attorney. The daughters transferred a 99% interest in the father’s condominium property to their husbands to preserve their father’s asset (to protect it from being depleted due to a new female acquaintance). The Court declared the condominium transfer null and void. Notably, there was no evidence to show that the father was incapable of managing his financial affairs.

Thanks for reading,

Natalia R. Angelini - Click here for more information on Natalia Angelini. 

An article in the August 2001 issue of Briefly Speaking, comments on the distinction between a minor’s rights under the Act versus their limited say in family law litigation. In the course of such discussion, the authors note the case of A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 SCR 181, and refer to Justice Abella’s comments (writing for the majority of the Court) that when dealing with children under 16, the more a court is satisfied that a child is capable of making a mature, independent decision on his or her own behalf, the greater the weight will be given to his or her views when the court is exercising its discretion under the Act. The court should evaluate the following factors:

·                    The nature, purpose and utility of the recommended treatment, and its risks and benefits;

·                    The minor’s intellectual capacity and degree of sophistication to understand the information to make the decision and to appreciate the potential consequences;

·                    The potential impact of the minor’s lifestyle, family relationships and social affiliations on his or her ability to exercise independent judgment;

·                    Whether there is any emotional or psychiatric vulnerabilities, and the impact of the illness on his or her decision-making ability; and

·                    Any other relevant information from adults who know the minor.

Accordingly, minors have a voice in the decision-making about their treatment in appropriate circumstances.

Have a good day,

Natalia R. Angelini - Click here for more information on Natalia Angelini.