• Knowledgeable (has to know the law)
• Experienced at mediating (too many “wannabes”)
• Litigation savvy (knows the true costs and challenges of litigation)
• Empathetic (a good, sympathetic listener is a must)
• Diligent (a mediator has to know the issues and subtleties)
• Firm (a mediator has to know when to read the “riot act”)
• Stamina (mediation is often a marathon)
• Adaptable (a mediator wears many hats)

If the other side suggests a mediator you’ve never heard of, ask around. What do your colleagues think and what is the mediator’s reputation like? To be honest, I’m never too quick to agree to a mediator suggested by opposing counsel if I don’t really know their style and reputation. Opposing counsel may have a comfort level with the mediator or know something you don’t that could work against your client. 

By keeping the above characteristics in mind and doing your homework, you and your client will likely have a better chance of satisfactorily settling the dispute.

The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates.

Any Trusts and Estates Section member of the OBA in good standing, as well as former members of the section who have retired or been appointed to the bench, but not including current officers of the Executive of the Trusts and Estates Section or the Executive of the OBA, are eligible to be nominated.

• academic excellence through teaching at the Bar Admission Course, lecturing at a law school,    participating in Continuing Legal Education and/or academic writing;

• participation in the OBA Trusts and Estates Section Executive or the Law Society of Upper Canada on wills, trusts and estate matters; and

• contribution to the development of wills, trusts and estate law.

Any member of the Trusts and Estates Section of the OBA in good standing is eligible to nominate a candidate by submission in writing, together with a curriculum vitae outlining the nominee's qualifications. The nominator must indicate that the candidate has been advised of the nomination prior to the nomination deadline and has consented thereto. The Award is typically presented at the Section’s Annual Awards dinner in late Spring.

Nominations must be filed by 4:00 p.m. on Friday, January 25, 2007 to:

Peter Guennel, Sections Coordinator
Ontario Bar Association,
20 Toronto Street,
Suite 300,
Toronto, Ontario
M5C 2B8
Fax: 416-869-1390

For more information, and/or to obtain a Nomination Form, please contact Peter Guennel at (416) 869-1047, ext 340, or email at pguennel@oba.org or by visiting on line at http://www.oba.org/en/admin/awards_en/tru_award.aspx.

Thanks for reading.

Craig

With the close of 2007, we turn and look to the promise of 2008. In looking ahead to 2008
many may wonder if they have properly protected and provided for those they intend to protect should something unexpected happen to them. Questions may also arise regarding whether a spouse or parent has taken steps to provide for themselves and/or those they intend to provide for.

While there are no doubt many things to consider for the new year from a family perspective, perhaps this is the year to resolve to consider, or reconsider, whether your family’s legal affairs have been properly planned.

I wish everyone a healthy, happy and prosperous 2008.

Craig

This issue was considered by the Court of Appeal of Manitoba in Antonation v. Sylvester, 2007 MBCA 110 (CanLII). There, the “deceased” disappeared on May 29, 1998. In May 2005, the beneficiary under a policy of insurance on the deceased’s life brought an application for a declaration that the deceased was presumed dead because of the passage of seven years from his disappearance. The court granted an Order on July 4, 2005 declaring that the deceased “shall be presumed to have died on May 29, 1998.”

The proceeds of the insurance policy were paid to the beneficiary within 30 days of the date that the court made the declaration: July 4, 2005. However, the beneficiary claimed interest from the date of disappearance (ie. the date of death as declared by the court: May 29, 1998).

The Court below and the Court of Appeal both held that no interest was payable until 30 days after the date upon which the declaration of death was made. This declaration was part of the “sufficient evidence” that the insurer required in order to trigger the obligation to pay under the applicable legislation. Until this declaration was made by the court, there was no obligation on the part of the insurer to make the payment.

The legislation in Ontario is essentially similar to the applicable Manitoba legislation considered by the court. In fact, the Court of Appeal of Manitoba relied on an Ontario Divisional Court case directly on point.

Thank you for reading.

Paul Trudelle

The deceased left a will kit-type will directing that all “just debts, funeral and testamentary expenses, all succession duties, inheritance and death taxes, and all expenses necessarily incidental thereto, to be paid and satisfied by” my executor as soon as convenient after her death. 

The will went on to provide that the following distributions were to be made:

To son A, Property A "with all loans, leins [sic], mortgages attached”.

To son B, Property B, “free and clear of all debt". 

The residue was to be divided between A and B. For the purposes of the trial, the only assets of significance were the real estate: Properties A and B.

At the time of her death, the deceased had no debt other than certain mortgages registered on title against Property A.

The issue in dispute was what assets were to be chargeable for paying the deceased's taxes, including estate administration tax and income taxes, and funeral and testamentary expenses.

A took the position that these expenses were paid out of the residue, and in the absence of any residue, were to be chargeable equally as against Property A and B. (Properties A and B were of equal value.)

B took the position that Property B was conveyed to him "free and clear of all debt", and thus, those expenses were payable out of Property A only.

What did the court do? Tune in tomorrow.

Until then, thank you for reading.

Paul Trudelle

A trial binder usually contains the pertinent materials that you would like to have at your fingertips during the trial (ie. pleadings, orders, witness lists, witness summaries, answers to undertakings, listing of the types of evidence objections, offers to settle etc.). The trial binder will allow you to have quick access to information that you might only have a few minutes or less to locate and quickly review.

While most contested passings settle at a pre-trial stage, if a trial is necessary, it might well be won because one party was more prepared than the other.

Thanks for reading this week. Have a great weekend.

Craig

Rule 52.04 of the Rules of Civil Procedure deals with the marking and numbering of exhibits at trial. Where appropriate and practical, a joint book of documents simplifies the use of documents and the marking of exhibits during the trial. With a joint book of documents, the Judge, the Registrar, each counsel and the witnesses only need to refer to one set of documents, rather than to multiple sets of documents. Depending on issues of admissibility, exhibits can be dealt with by marking each volume as an exhibit or each specific document, within a volume, as it is dealt with.

Consider anticipated objections to evidence to be adduced by opposing parties and prepare submissions and applicable law, as necessary, prior to the trial.

In addition, while demonstrative evidence is a common feature of jury trials, thought should be given as to whether there are tools such as a family tree diagram and/or a chronology of events that can be prepared to assist the Judge at trial.

Thanks for reading.

Craig

It is important in preparing for trial to prepare summaries of the transcripts of the examinations conducted to assist counsel with locating evidence in the transcripts during trial, including admissions and/or inconsistent statements made by a witness at trial. Having said that counsel should personally review the transcripts as part of trial preparation. By reviewing the transcripts, counsel can address issues involving: (i) the completeness and answers to undertakings/refusals, (ii) admissions made by the respective parties, (iii) incomplete answers provided by the respective parties to questions on the examinations, and (iv) whether additional discovery is needed before trial.

A party may also, further to Rule 51.02 of the Rules of Civil Procedure, at any time, by serving a Request to Admit, request any other party to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document. A copy of any document mentioned in the Request to Admit shall, where practicable be served with the request (unless a copy is already in the possession of the other party).

The opposing party must respond to the Request to Admit within 20 days, failing which the opposing party will be deemed to admit the truth of the facts asserted in the Request to Admit or the authenticity of the documents referred to in the Request to Admit. As such, the Request to Admit should be served at least 20 days before the commencement of the trial, and quite some time before that, if possible, so that counsel will know what facts need not be proved or the authenticity of documents that will not need to be proved.

There may be cost consequences if a party refuses to admit the truth of a fact or authenticate documents which are proven or authenticated during the trial.

Requests to Admit may be effective to: (i) reduce the facts in dispute, (ii) reduce the number of witnesses to be called and/or the examination of a witness, (iii) minimize the costs and length of the trial, and (iv) avoid having to authenticate documents.

Thanks for reading.

Craig

It is perhaps trite to say, but trial preparation does not begin between the pre-trial conference and the commencement of trial; rather, it begins with the formulation of a strategy for the case, the identification of the issues in dispute, the determination of the evidence required to prove the case and the marshalling of that evidence. As such, while the ultimate strategy for a trial cannot be finalized until the pre-trial stages of the passing have been completed, and counsel have the benefit of a thorough review of the case (before the pre-trial conference), parties ought to be mindful of the matters to be dealt with at trial throughout the litigation and how such matters can be dealt with or addressed during the pre-trial stages, including through documentary disclosure, examinations and by way of orders of the Court (such as an Order Giving Directions or otherwise).

Having said that, my blogs this week will include a series that considers preparation for a trial of a contested passing.

Have a great day.

Craig

In Re Cooper *, the trial judge held that the applicant, Mrs. Hampton, had failed to fit herself within the definition of a "dependant" as defined in the Act. Mrs. Hampton appealed to the Divisional Court, which ultimately allowed the appeal.

Mrs. Hampton and Mr. Cooper had been living together in a common-law relationship for over 7 years right up until Mr. Cooper's death. The evidence made it clear that Mr. Cooper and Mrs. Hampton acted like a normal married couple.

The most interesting aspect of the case to me is that the Divisional Court held that the issue of support was not contingent on one person making a greater financial contribution than another. In sharing common expenses, a couple, married or not, were supporting each other.

According to the Divisional Court, Mrs. Hampton was a dependant of the deceased within the meaning of the SLRA. Mr. Cooper was also providing support, or was under a legal obligation to provide support, immediately before his death. The court determined that the obligation to provide support to the other spouse remained as long as the relationship of the two parties as spouses continued notwithstanding that Mrs. Hampton was not receiving actual support from Mr. Cooper before his death and regardless of whether Mrs. Hampton could have successfully made a claim for support while Mr. Cooper was alive.

Re Cooper stands for the proposition that a spouse (married, common-law, or same sex) automatically qualifies as a dependant. The issue then becomes whether the spouse is entitled to a dependant support order in the circumstances.

Thanks for reading.

Justin
* Link not available - see 7 E.T.R. 118, 30 O.R. (2d) 113

The article quotes Hull and Hull's own Jordan Atin: "A will is usually the last thing that a parent says to his or her children...". As such, the document "creates a definitive, lasting record of the relationship between parent and child and among a child and his or her siblings. That reason alone explains why estate disputes are so hotly contested".

Jordan Atin states that in addition to addressing the mechanics of the estate plan, solicitors also need to address their client’s family dynamics. Lawyers should consider with their clients the emotional effects of the will may that arise after the testator passes away. 

In the article, Sender Tator, a solicitor with Schnurr Kirsh Stephens, notes that in the context of litigation, “emotion often gets in the way of legal or practical realities; your client is often looking for a certain result, which legally may not be feasible".

The interplay of family dynamics and human emotion is one factor that makes estate litigation so interesting. (It is also a factor that often makes the practice so frustrating!)

One of the functions of a solicitor in estate litigation is to consider the role of family dynamics, and to see that it is identified and addressed. In addition, the solicitor should strive to ensure that the legal or practical realities are not overlooked, and that passion alone does not drive the litigation.

Thanks for reading, and happy Halloween.

Paul Trudelle

Negotiated structures dealing with the retirement, removal and replacement of a trustee may include, or be a combination of, a deed, court order, preparation of accounts, a passing of accounts application, a release, indemnification, Judgment on the passing and Minutes of Settlement (Agreement) dealing with the resolution of the disputes arising therefrom.

A situation where a trustee wishes to retire and the administration of the trust has been simple, straightforward and has been substantially completed by the trustees to the satisfaction of all beneficiaries, who are sui juris, and there are no outstanding liabilities of the trust, will be completely different than one where beneficiaries are seeking to remove and replace a trustee for misconduct and/or in the context of a very complex administration.

The structure of the latter might include an Application to the Court to remove and replace the trustee on notice to all co-trustees and those with a financial interest. As part of the Application, an order would most likely be sought requiring that the outgoing trustee pass his accounts within a certain time period of the date of the order.

An order removing the trustee should address, amongst other things, the following: (i) the individual(s) being removed and the capacity being removed from; (ii) the appointed substitute trustee or, alternatively, confirmation that the remaining trustees will continue; (iii) the vesting of the trust property in the new trustee and/or the continuing trustees; (iv) that the outgoing trustee shall prepare formal accounts in accordance with the Rules of Civil Procedure and file those accounts and an Application to pass accounts within a certain period of the date of the order as to the date of removal; (v) the manner of compensating the new trustee; (vi) directions required, if necessary, to facilitate any of the above; and (vii) how the costs of the Application are to be dealt with.

In the end, the circumstances of each particular case will dictate which structure is most appropriate and prudent.

Have a nice weekend. Craig

Whether a trustee or co-trustees have properly administered a trust is obviously a crucial factor in negotiating the removal and replacement of a trustee, and will effect the manner in which a new trustee may be appointed.

When a trustee breaches his duty, he may be liable to the beneficiaries for any losses that occur as a result of the breach. When such a breach occurs, the Court, further to s. 35 of the Trustee Act, has the discretion to relieve the trustee of liability in cases where it believes that the trustee acted “honestly and reasonably, and ought fairly to be excused.”

Trustees, outgoing and incoming alike, ought also to carefully review the terms of the trust as the trust may contain provisions that limit the liability of the trustee.

Exculpatory clauses may limit the extent of the trustee’s personal liability to the value of the assets of the trust instrument and/or may protect the trustee by raising the level of culpability required to be found personally liable.

A trustee should be cautious, however, if he or she is relying on an exculpatory clause in a trust to exonerate him or her from liability as such clauses may be held to be invalid, especially where they are broad, or attempt to completely exonerate any and all conduct of the trustee, including liability for acts of gross negligence, intentional wrongdoing, fraud or dishonesty.

The best way, however, for an outgoing trustee (and new trustee) to limit any liability that may be visited upon him or her as a result of the administration of the trust to the date of the retirement, removal and replacement is for the outgoing trustee and his or her co-trustees, if any, to pass their accounts. Assuming the accounts are passed, not only will the new trustee know the “starting numbers” and the assets/liabilities for the future administration of the trust (that is start with a clean slate), but the outgoing trustee will have been afforded the proper protection of the Court order.

Thanks for reading. Craig

Whether the trustee is to be removed (and replaced) by way of deed or by way of Court order, any co-trustee and anyone having a financial interest in the trust should be notified of the change and provided with the deed (if the removal can be done by way of deed: see sections 2-6 of the Trustee Act) and any other materials that may be necessary to remove the trustee by way of deed, or served with the application materials if the removal (and replacement) is to proceed by way of Court order. As such, the make-up of these parties should be considered prior to proceeding with the change, as one or more of these parties may, amongst other things, object to or challenge the removal (and replacement) of the trustee, have claims in respect of the administration of the trust and/or dispute the trustee’s compensation.

It may be that a litigation guardian may need to be appointed for a minor(s) and/or for an incapable party. In such a case, the Office of the Children’s Lawyer or the Office of the Public Guardian and Trustee may need to be served with the application materials so that they may have the opportunity to respond or become involved, as appropriate.

Rule 9 of the Rules of Civil Procedure addresses proceedings by or against a trustee while Rule 7 regulates the bringing of proceedings by or against parties under disability. It may also be that a representation order, pursuant to Rule 10, is required as the proceeding impacts on persons who are not before the Court and who cannot be brought into the litigation because they are unborn or unascertained, or because they cannot be readily found or served.

Thanks for reading. Craig

It is noteworthy to distinguish between the removal and replacement of a trustee and the removal and replacement of a personal representative of a deceased person’s estate because of the different ways that they are treated. A trust instrument may provide for the retirement, removal and/or replacement of a trustee. If there are specific provisions in the trust instrument for the retirement, removal and/or replacement of a trustee they will govern. To the extent the trust instrument does not govern the issue, generally, sections 2 to 8 of the Trustee Act R.S.O., 1990, c. T. 23. (the “Act”) apply to the removal and replacement of trustees, while section 37 of the Act relates to the removal and replacement of personal representatives.

The balance of this week’s blogs will focus on certain considerations to be taken into account when negotiating the retirement, removal and/or replacement of a trustee. More specifically, I will touch on considerations involving the parties who should be involved with the negotiation, liability considerations and structures of the removal and/or replacement.

Thanks for reading.

Craig 

At the October 5th meeting, the following presentations will be made: “Settlements When Dealing with Minors and Incapable Beneficiaries” by Ian M. Hull, “Secret Trusts and Powers of Appointment” by David M. Smith and “Mutual Wills – A Review” by Paul E. Trudelle.

The meeting is being held at the Ontario Bar Association, 2nd Floor, 20 Toronto Street, Salon 2 & 3, Toronto, Ontario. Breakfast begins at 8:15 a.m. with the Presentations starting at 8:30 a.m. A fee of $30.00 ($28.30 + $1.70 GST) is payable to Hull & Hull LLP upon registration by cheque, VISA or MasterCard. Materials are included. As with the two other Breakfast Series meetings that were offered earlier in 2007, this seminar will be offered via Webcast.

A CD or Cassette Tape recording of the Breakfast Seminar will be available at a fee of $20.00 ($18.96 + $1.14 GST)

To register, please contact Diane Labao at (416) 369-1140 (press 0) or by email to dlabao@hullandhull.com.

See you there.

Craig

To enforce the payment or recovery of money, a party has the following options: a writ of seizure and sale, garnishment, a writ of sequestration, appointing a receiver (Rule 60.02/Forms 60A and 60B).

A party can enforce an order for the recovery or possession of land by a writ of possession (Rule 60.03/Form 60C).

An order for the recovery of possession of personal property, other than money, may be enforced by a writ of delivery (Form 60D).

An order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order (Rule 60.05). A motion before a judge is required (Rule 60.11).

Before a creditor decides how best to enforce a monetary judgment or order, a creditor can chose to examine a debtor. Rule 60.18 states that a creditor may examine the debtor in relation to: the reason for non-payment of the order; the debtor’s income and property; debts owed to and by the debtor; whether the debtor has disposed of any property either before or after the order; and the debtor’s present, past and future means to satisfy the order.

Rule 60.19 deals with the cost of enforcement generally. Finally, it is important to note that, pursuant to Rule 60.12, where a party fails to comply with an interlocutory order, the court may stay the party’s proceeding, dismiss the party’s proceeding or strike the party’s defence, or make such order as is just.

Thanks for reading. Enjoy the weekend.

Justin

In this week's episode of Hull on Estates, Sean Graham and Natalia Angelini discuss securing interest in land in litigation.

Click "Continue Reading" to read the transcribed version of this podcast.

Posted on September 4^th, 2007 by Hull & Hull LLP

Sean Graham: Hi, you’re listening to Hull on Estates, podcast #75, on Tuesday, September 4^th, 2007.

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.

Natalia Angelini: Hi Sean, how are you today?

Sean Graham: Oh, pretty good. How are you Natalia?

Natalia Angelini: Very well.

Sean Graham: We thought we’d talk about ways of securing interests in land in litigation. And Natalia, you’ve done a lot of this so maybe you can set the table a little bit for how you might go about doing that.

Natalia Angelini: Sure. Often times in litigation, there’s an interest in land that’s in question that either beneficiaries are disputing over or the ownership is uncertain. And in those kinds of situations, in order to protect your client, and secure the property, one of the things that you can do is get a Certificate of Pending Litigation registered on title to the property.

Sean Graham: And when does this generally come up in your experience? Does it come up at the start of the litigation, or, you know, as an interim step partway through? What’s your experience?

Natalia Angelini: In my experience, it comes up most often at the very beginning of litigation, which is usually better because you can deal with it immediately and secure the property immediately and reduce the risk that it can be transferred or encumbered during the litigation.

Sean Graham: Now would you say that this is one of those sort of drop dead issues where the client comes in to a meeting and there are certain issues that sort of raise our red flags at the outset. Is this one of those?

Natalia Angelini: I think it can be. I think, in my experience, that’s how it’s come about.

Sean Graham: Yeah, I also would say that in those initial meetings, it’s very often the case that the clients are, they have been waiting to see you, they’re pretty ready to go, they want to take steps right away. And the Certificate of Pending Litigation is generally one of those where there’s land involved ‘cause you do not want the clients to leave and let it sit for 3 or 4 weeks and then before you know it, someone’s sold the property and the client is left holding the bag.

Natalia Angelini: Right and it’s something that once clients discuss the issue with us, and raise the issue of land, its certainly, a red flag certainly goes off in my mind and I immediately consider the steps that we could take to deal with that.

Sean Graham: Now…I’m sorry…now in terms of process, how would you get that issue off the ground?

Natalia Angelini: Well when you want to get a Certificate of Pending Litigation, firstly it has to be in your originating application. So you seek that relief in your application together with the other relief that your clients are seeking. And then you bring a separate motion. Typically I bring that separate motion almost immediately because I want to get the CPL issue nailed down and deal only with the CPL in that motion most often. And that motion is brought pursuant to Rule 42 of the Rules of Civil Procedure and Section 103 of the Courts of Justice Act. So those…that statute and that Rule provide part of the grounds for that motion or form them.

Sean Graham: Now I think it’s worth mentioning. You don’t actually need to claim ownership of the land in order to get a Certificate of Pending Litigation. It’s enough to claim an interest in the lands. So you don’t have to say you are the complete owner of that land. And in the estate context, one area that might come up is by saying “I am a beneficiary of this estate, this estate owns or ought to own or has some interest in the land, ergo as a residuary beneficiary, I do as well”. And so, in many cases, there’s more than one beneficiary and so you can’t really claim to be the complete beneficial owner of the piece of land which is going to fall into residue and then be divided. But it is enough to have an interest. And I think that’s a point worth considering.

Natalia Angelini: Right.

Sean Graham: Now, in terms of the Order itself, how long does the Certificate of Pending Litigation last?

Natalia Angelini: A Certificate of Pending Litigation lasts until the Order granting it is set aside, or varied.

Sean Graham: And so, I take it, no one is gonna buy a piece of land where the ownership is in issue by a Certificate of Pending Litigation. So in effect what you do is you freeze title to the land, potentially for years.

Natalia Angelini: Absolutely. Its, depending on the circumstances, it can be quite a draconian measure.

Sean Graham: And that brings me to the sort of downside. Because for every strong measure like this, there’s generally some risk to the client who wants it imposed. And maybe we could touch on that for a minute.

Natalia Angelini: The downside, the potential downside, Sean, is that your client can be liable for damages that may result from the CPL being registered. For instance, where the property is restricted from being sold when there is, you know, a buyer available and an offer made and ultimately at the end of the litigation, it turns out that there’s a finding that the CPL should never have been registered. So even though, in this case, clients don’t have to give undertakings as to damages, like they do in injunction cases, that risk is still there. And, you know, you’ve got to advise your client and your client should be aware of that risk and I think you’ve got to assess, you know, the strength of their case and the extent of their interest in the property.

Sean Graham: So you have to be pretty sure, it seems to me.  With the fact that there’s no explicit undertaking, I gather would probably not carry too much weight with the Court if a $2,000,000 deal was lost and the value of the land plummeted and then it was found out that the beneficiary ought not to have meddled in the title. All of a sudden you’re on the hook for the difference, plus the costs of the other side, plus your own costs. That could be quite a devastating result, so…

Natalia Angelini: Right…

Sean Graham: …not surprising, I guess, that with the heavy hammer comes a pretty significant risk as well. So, given those risks, I think that it’s worth mentioning that a Certificate of Pending Litigation is kind of at one end of the spectrum. It gives you a great deal of protection but there’s corresponding risk. And maybe there’s other, maybe not so strong remedies, but other remedies that you can come up with in dealing with land and could you mention some of those?

Natalia Angelini: Sure. There certainly are. And that can range from obtaining a Court Order. I think this would happen later on in the litigation, where you’ve presented your full case to the Court and you get an Order from the judge saying, or essentially disallowing the opposing side to sell the property, rather restricting them from doing that. Something that is commonly done is placing a Caution on the property. And it’s not too difficult to get a Caution registered. Your interest does have to be set out on the Caution. I know that in several cases, people try to slap Cautions on without a real legitimate claim to the land. And, you know, the Registrar will ultimately remove the Caution. But if you do have a legitimate interest and the Registrar is satisfied, that Caution will stay on and it has a lifespan of 60 days. However, in practice, what I understand is that unless someone attempts to do something with the land, that Caution can still stay on after those 60 days. It’s not automatically removed.

Sean Graham: Now I take it that the risk with the CPL, the Certificate of Pending Litigation, is that what you do to the land or what you ask the Court to do to the land could reduce the value or the value decreases over time and an opportunity to sell is lost. You would think that maybe the same things may happen with an Order and a Caution. So I just want to be clear, I don’t think we’re completely off the hook on this by getting an Order or a Caution as opposed to a Certificate of Pending Litigation.

Natalia Angelini: We’re not, but at least in respect of the Caution, I mean, it really is a much more temporary measure. And I think it can provide your client with interim security since the property cannot be sold without the consent of the Cautioner. So it can give you that interim security but it isn’t so definite that it can really sort of hinder or scuttle a sale. There is one more way to address this scenario and it’s certainly risk-free for your client and it is getting the other side to agree to sign an undertaking not to sell or encumber or in any way deal with the property. And I’ve done that before but I think it’s restricted to the scenario where you’ve got an opposing side that’s trustworthy and, you know, whose undertaking would satisfy your client.

Sean Graham: Yeah, and I find a lot of times that comes down to sometimes even the lawyer on the other side, but certainly the client. If you have a trust company, you’re pretty safe with that undertaking. Or if you have sort of a client on the other side that you know has substantial assets, those types of considerations certainly come into it. And then you can get pretty much the full benefit of a Certificate of Pending Litigation, at least from a practical point of view, without some of the downside risks. Because if the other side either undertakes or consents to an Order not to sell the land, I do think it’s much less likely, although not impossible, it’s much less likely that the Court is going to impose a costs Order on you at the end of the day.

Natalia Angelini: Right, and in going the consent Order route, sorry, or the undertaking route, it’s a lot less costly.

Sean Graham: For sure, and you don’t have to dispute it. I mean, I’ve had certainly injunction motions where the litigation fees quickly get into the tens of thousands of dollars and it’s not a guaranteed remedy. It’s quite a risky step and very often clients who are gangbusters to get going, when they hear about it, you know, may back off and they may have some sober second thoughts when they find out what some of the consequences of bringing that remedy and losing, or even the cost consequences, the expenses of bringing the remedy and winning. So often after you have that chat, some of the alternatives we talked about look better and better.

Natalia Angelini: Umm, I agree Sean, good point.

Sean Graham: Well, I think we’ve covered the very basics of this at least. And hopefully that’s helpful to people. Thanks very much, Natalia.

Natalia Angelini: Thank you.

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.

However, heading into the weekend, it is worth considering that there is a rising tide, some might even call it a revolution, that the proletariat (yes, that now includes professional and businesspeople thanks to technology) need to down their tools. In other words, Blackberries need to be turned off, cell phones muted, and faxes left waiting in the in-tray until Monday morning or after a well-deserved holiday. Psychiatrists and psychologists will tell us that leisure and recreation is an important way to recharge our batteries. The truism “all work and no play make Jack [or Jill] a dull boy [or girl]” seems even more relevant today. Perhaps we need to look to our European counterparts, who take longer holidays and seem more willing to stop and smell the espresso.

Have a good weekend and relax...

Justin

The article addresses a variety of issues. However, the one that I want to consider today is the common cognitive screening tests used by the medical profession to assess testamentary capacity. 

By way of introduction, the article states:

Clinicians and legal experts must understand that cognitive tests are not diagnostic of dementia and cannot be used as a measure of capacity. Their value lies in the ability to screen for cognitive impairment and to reflect changes in cognition over time. The Mini Mental Examination (MMSE) and the clock-drawing test are the two most common used cognitive screening tests.

The clock-drawing test simply shows a circle. The person being assessed is then instructed to place numbers on the circle so that the circle looks like a clock. The patient is then asked to set the time to ten past eleven. 

It is widely accepted that the clock-drawing test covers a wide range of intellectual and perceptual skills. According to the article, the clock-drawing test measures: comprehension; planning; visual memory and reconstruction of a graphic; motor programming and execution; numerical knowledge; abstract thinking; etc. While no specific score is given, the actual test provide a universal global assessment of cognitive function. For anyone with small children, they will know that telling time on a conventional clock is not necessary an easily acquired skill and takes some degree of cognitive proficiency on the part of a child. The value of the clock-drawing test in assessing cognitive function therefore becomes apparent when dealing with adults.