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The creating of a legacy is not just about the size of an estate left behind by a testator.  A publication of Imagine Canada entitled Philanthropic Success Stories details the nature of philanthropy and gives all of us pause to consider how best to create a lasting legacy.  As the authors note, philanthropy is best defined by heart, time and spirit rather than one's bank account balance.

Imagine Canada is a charitable organization which has as its mandate the fostering of non-profit and charitable causes.  The authors of Philanthropic Success Stories observe that Philanthropists (in the traditional sense) are being replaced by people better defined as: "champions, advocates and volunteers"  The authors specifically note that philanthropy is being pushed out in new directions that embrace such adjectives as: risk-taking, pioneering, innovative, and being "ahead of the curve."

As an example, the authors refer to the Caledon Institute of Social Policy which is credited for spearheading, among other things, the implementation of the National Child Benefit.

Have a great weekend!

David M. Smith

David M. Smith - Click here for more information on David Smith.

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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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A good friend of mine recently reminded me that death is not just about dividing up the spoils (a common theme in estate litigation), but also about remembering the lasting contributions made by a person during their lifetime. I was reminded of this in reading about the recent deaths of two well-known figures, Donald Marshall and Eunice Kennedy Shriver.

Donald Marshall passed away last week in Sydney, Nova Scotia. In 1971, when he was just seventeen years old, Mr. Marshall was wrongfully convicted of a crime he did not commit and jailed for eleven years. He subsequently challenged the legal system and blazed a trail for other wrongfully convicted Canadians to fight to have their convictions overturned. His case led to a Royal Commission in 1990, which produced a slew of recommendations that fundamentally changed the criminal justice system in Nova Scotia. In 1993, Mr. Marshall again reluctantly stepped into the spotlight, when he was arrested and eventually convicted of various fishing violations. Mr. Marshall fought his convictions all the way to the Supreme Court of Canada, winning acquittals and a significant victory for the native treaty rights of his people, the Mi’kmaq Nation. 

This week, Eunice Kennedy Shriver (President John F. Kennedy's sister) passed away. Eunice Kennedy Shriver was a champion for the rights of the mentally disabled and founded the Special Olympics, which has grown into a truly global event. President Obama noted in a statement that Mrs. Shriver will be remembered as "as a champion for people with intellectual disabilities, and as an extraordinary woman who, as much as anyone, taught our nation — and our world — that no physical or mental barrier can restrain the power of the human spirit".

Thanks for reading,

Bianca La Neve

Bianca La Neve - Click here for more information on Bianca La Neve.

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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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Section 35 of the Substitute Decisions Act ("Act") states that "a guardian of property shall not dispose of property that the guardian knows is subject to a specific testamentary gift in the incapable person's will."  And under s 33.1 of the Act, a guardian of property needs to make reasonable efforts to determine "whether the incapable person has a Will" and, if so, "what the provisions of the Will are."

Under the authority of these sections of the Act, a beneficiary of a specific testamentary gift can legitimately make enquiry into the actions of the guardian who, more often than not, is also the estate trustee under the Will.  Take, for instance, a demonstrative legacy of a bank account at a specific financial institution.  If the account is no longer in existence at the date of death, the legacy will usually be subject to ademption: the gift has failed because the account was closed before the date of death.  But what if the account was accessed by the guardian either: (i)  for his own purposes or (ii) for the care of the incapable person when there where other assets available to fund the care of the incapable person?  In such a situation, the beneficiary of the account under the Will may seek redress. 

To prove his or her case, the beneficiary will seek an accounting from the guardian in order to ascertain to what extent his or her beneficial entitlement was wrongfully encroached upon in breach of the Act.  Given the imperative under s. 33.1 of the Act, it questionable whether the guardian/estate trustee could ever  successfully argue ignorance of the terms of the Will as a defence to such claim.

 David M. Smith

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The business pages, especially in this uncertain economy, can be interesting.  Recently I gravitate toward Paul Waldie's column in the Globe & Mail.  Frequently, he identifies the gifts, causes and reasons provided by individuals whose donations range from under $100,000 to a million dollars or more. It's a spot of good news in this economic downturn.

We have covered legacies from several angles at Hull & Hull; there are 25 hits when "legacy" is searched on the Blogs and Podcasts section of our website.  The law dictionary defines legacy as "A gift by will, esp. of personal property and often of money;  a bequest."

Individuals can leave a legacy in their respective Wills, but as the Globe & Mail column highlights, people who have the means enjoy the satisfaction of leaving a legacy during their lifetime. Stories abound, as www.leavealegacy.ca illustrates.  There are as many reasons to leave a legacy as there are donors.

The principle of leaving a successful legacy applies to many realms, including the family business.  In some instances, it is advisable to not leave the kids the family business.  Rick Spence, of Moneysense, suggests passing on values, rather than gifting the family business.  Certainly we are not all in the position of "firing the kids", but there may be many good reasons to do now what you would otherwise do in your Will. 

Jonathan

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Today, if I have my count right, is day eleven of the Olympics. For certain, the Olympics stimulate debate on a spectrum of important social, political, economic and, of course, athletic issues of our time. I do not intend to touch upon those debates. Over the past ten days of the Olympics, however, incredible stories of the athletes have arisen, and will no doubt continue to arise. Some, like Michael Phelps’ eight gold medals, involve incredible success, almost beyond one’s imagination, while others involve success on a more personal level or, as the saying goes, the agony of defeat. These stories, from whatever viewpoint, are quite remarkable and have no doubt involved the setting of objectives, planning and dedication and commitment to the goal.

While perhaps obvious, it continues to strike me as to the extent that these athletes live in the moment or for the day. So much rises and falls for them with one or in some cases several performances. What onlookers of the Olympics take away from the Olympics is no doubt personal but perhaps the notion of setting objectives, striving to obtain them while living for the day is the most universal.

What do these stories actually have to do with Estates? From a legal standpoint, nothing. However, perhaps the above notion may focus us to consider our own legacy and the steps that have been taken, or should be taken now, to ensure that those that benefit from that legacy are the intended ones.

Keep watching.

Craig
 

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Amidst the hustle and bustle of preparations for the holiday season, I'm always amazed by the kinds of matters that can bring a sudden reality check to our situations and to life in general.

Recently, after having attended the funeral of a friend of the family, I had my own reality check. Pat, a remarkable 37-year old woman, passed away after a courageous 2 and a half year battle with breast cancer. Pat was survived by her husband and two beautiful children, a daughter and a son. Learning about the amazing legacy that Pat left behind, I started to consider the legacy which I was creating and what it was that I hoped one day would be said at my funeral.

So often, we get wrapped in all the little things that, in the grand scheme of things, really do not matter. Struggling to maintain the professional and home life balance is challenging at best, but, in the end, nothing can be more fulfilling.

Everyday, we deal with clients who are either trying to create an estate plan for themselves or deal with the one that has been left to them. The whole area of estates and trusts is premised on the desire to deal with our material possessions for the benefit of others when we are gone. Sometimes, however, the emotional legacy that we leave behind is much more important than the financial one. 

All the very best,

Suzana.