This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss a recent consultation paper from the Law Commission of Ontario(LCO) titled: The Law as it Affects Older Adults. The LCO has initiated a project to develop a legal framework for the law as it affects older persons and will be essential in addressing the needs and experiences of this group.

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The Law as it Affects Older Adults - Hull on Estates Podcast #134

Posted on October 28^th, 2008 by Hull & Hull LLP

Suzana Popovic-Montag: Hi and welcome to Hull on Estates. You’re listening to episode 134 of our podcast on Tuesday, October 28^th, 2008.

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.

Suzana Popovic-Montag: Hi this is Suzana Popovic-Montag.

Ian Hull: And this is Ian Hull. And we are back on Hull on Estates for, I guess what you indicated at the outset, 134. So it’s been a continuing ride and always interesting. So please, we always look forward to hearing from you. And we encourage you to check out our daily blog. Suzana and I both do a podcast that is an audio and a video podcast plus we have our daily blog at estatelaw.hullandhull.com where we touch on daily issues of interest in the area of estates, not just legal but personal and other matters that we touch on. So please feel free to check us out and also send us a note if you have any comments.

Alright Suzana, well what we were going to talk about today was we thought was an interesting report that hasn’t seen the sort of mainstream media exposure that we think it might not ever see. But we’re going to do our best to put it through the back line of the internet world. And first of all, just by way of background, it’s a report written, a preliminary report written by the Law Commission of Ontario. And this is the successor, thank goodness finally, successor of the Law Reform Commission of Ontario. The Law Reform Commission of Ontario was established, worked intensely in the 70s and the 80s and the 70s in particular with things like changes to the Family Law Act and the Succession Law Reform Act in 1978 when Roy McMurtry was the Attorney-General. In those days, the law was really being pushed by this branch of the government, at that time, the Law Reform Commission. It was reinstated by Michael Bryant in, I forget the exact year, but within the last few years certainly, when the new Liberal government came in. Now they’re not so new but when they first came in, Michael Bryant had the vision to bring it back in. And it really is a source of pushing the law forward. We would not see the family law legislation that we did in the 70s and the 80s, nor would we have seen the changes to the Succession Law Reform Act without the Law Reform Commission then and we’re going to probably hopefully see some real positive impacts of this. So the thing we wanted to talk about was a consultation paper that came out in May of 2008. And again, may have gone below the radar screen for some but is a timely topic for Suzana and I as we are getting organized to head out to Vancouver for our trip for the Canadian Conference on Elder Law where we are speaking at it. That is the preeminent conference on Elder Law and one that we really enjoy speaking at. So in the course of getting ready for that, we have been working through some of the developments in 2008 and this May 2008 Ontario Law Commission of Ontario report was vital and its called “The Law as it affects Older Adults”.

Suzana Popovic-Montag: And it really seems to me, Ian, to be a timely report in the sense that there is so much more of an awareness of, you know, the elderly community and the fact that we have an aging society. And we, frequently when we speak about these topics, we talk about the statistics and they’re very interesting and especially as they get updated on a regular basis.

Ian Hull: Well we’re going to go through some of those statistics, because this report does it. But at 30,000 feet, the report, we want to get through this in this podcast and sort of just give people an idea of it. Its obviously available on the web, easily linked to. But the report really, and the introduction of it, gives us some interesting background facts that we’ll talk about in a moment here. But it really, it touches on sort of the fundamental issues of national and international policy reforms, what’s going on out there, what frameworks we’re working within.

Suzana Popovic-Montag: It also sets out sort of the stereotypes of ageism, paternalism and the law and how it affects the elderly population, as well as sets out an interesting discussion about how age is used as a decision-making criterion in a lot of the legislation that’s existing right now.

Ian Hull: And one area where we constantly struggle is participation in access to the legal system and to the services available for the elderly. When you get into situations of mental cognition and mental frailty, it is so difficult for elderly people to actually engage in the process of the system. So the report goes through a really interesting analysis of that.

Suzana Popovic-Montag: And apart from the legal ramifications or the legal implications of these kinds of discussions, the report also talks about the reality of the relationships that elderly people have with others, with their family members and with society as well. So it sets out some discussions on elder care, elder abuse and also recognizes the fact that older adults are caregivers to others as well.

It then goes on to talk about some secure and dignified living environments and it describes the difference between a retirement home and a nursing home and how the legislation applies to each of those different arrangements.

Ian Hull: So Suzana, coming back to your statistics, what, its always good to get a sort of framework of what we’re working with here and just how important this topic is to Canada over the next twenty years.

Suzana Popovic-Montag: And the numbers really are quite surprising, at least to me they are. The number of Canadians they say that are currently over the age of 65 is expected to double in the next little while and so where it was 4.2 million back in 2005, they’re predicting that its going to be 9.8 million in 2036.

Ian Hull: So with this growing demographic in Canada, we also enjoy a wide variety of diversity within our communities and of course that community is becoming elderly as well. So each of the cultural and unique aspects of the various communities in Canada play out with the elderly and this report really struggles with the different, and that’s why they touch on the international perspective, is because they really do touch on the importance of factoring in elder care, elder law in the context of a cultural nation that Canada is.

Suzana Popovic-Montag: And even within the grouping of the elderly, I think the report is really intuitive in that it recognizes that and sort of breaks it down into three different categories of what they call the young old, the middle old and then the frail old, recognizing the fact that even though someone may be over the age of 65, they can still be a very when they say young old in the sense of very vibrant, very self-independent, and functioning without the assistance of anyone. Whereas there are different gradations of what you’re capable of as you get older.

Ian Hull: And, you know, I think that’s a great illustration of the sort of level of analysis that this consultation report sends us through. It doesn’t just say people are getting old, we have to worry. They get into some really tough questions. And by grading it that way and breaking down the elderly category into sub-categories, identifying our immigrant population, identifying our diverse culture, identifying the fact that we deal with a predominantly female audience at some point in the statistics. This report really is throwing out all of the different variables to the sort of culture of the elderly and how we have to consider them and their place in society. So we also see a unique twist on it too because I think for the first time, certainly in any meaningful way, they throw out the option of considering how we are going to deal with the proportionate growth and also the trend among the fact that this, what we’ll call how you describe, this new categories of the young old, how we’re going to accommodate them in the work force because many of the young old aren’t prepared to simply quit work and in fact with this economic downturn, I’m told that the statistics are that the young old are going to be wanting to stay in or come back into the work force as they feel they have lost enough of their savings that has put themselves in danger. So its going to be an interesting economic tug on the whole economy.

Alright, so now that we’ve talked about sort of the background, and as I say, I think the summary that we started the podcast with really touches on the importance of the various issues. I just wanted to before we close talk about the one point that I thought was really well demonstrated and one that this consultation paper has thrown out to the community to address, and that is, some of the international and national frameworks. And where they started from, and I just think it’s, as a say, it’s a good starting point but its also a good finishing point, was that they looked at the United Nations Principles for Older Persons and they talked about five principles that the United Nations felt should be considered in pursuing elder law and elder care.

Suzana Popovic-Montag: And those five principles were: independence, participation, care, self-fulfilment and dignity, which I think really are five of the main things to keep in mind when you’re dealing with these kinds of situations. And I think very intuitive recognition by the United Nations of the fact that this really does summarize the nub of the issues.

Ian Hull: So they took those five principles and they’ve thrown those out as we have thrown them out, into the gauntlet of how we intend to deal with the law as it affects older adults and that consultation paper is out there, they’re looking for feedback and input and at the very least, it’s a good read and interesting sort of parameters that are set out to give us some food for thought and to see where this law and the important law of elder law will be developing over the next ten years. So kudos to the Law Commission of Ontario to get us thinking and asking really useful and intuitive questions as opposed to just saying there’s a problem, go fix it.

Suzana Popovic-Montag: And I guess that brings us to the end of this podcast. I’m Suzana Popovic-Montag.

Ian Hull: I’m Ian Hull. Thank you very much for listening. And again, please feel free to give us some feedback at hull.lawyers@gmail.com.

Suzana Popovic-Montag: And feel free to visit our blog at estatelaw.hullandhull.com. Thanks very much, Ian.

Ian Hull: Thanks Suzana.

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.

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Posted on May 20^th, 2008 by Hull & Hull LLP

Sean Graham: Hello and welcome to Hull on Estates. You’re listening to Episode #111 on Tuesday, May 20^th, 2008.

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.

Rick Bickhram:  Hi and welcome to another episode of Hull on Estates. I’m Rick Bickhram.

Sean Graham: And I’m Sean Graham.

Rick Bickhram: And today, we’re going to be touching on one of the statutes, specifically the Evidence Act and we’re going to be looking at Section 13 of the Evidence Act.

Sean Graham: Yeah, and in a more general sense, we’re going to be discussing how evidence issues or at least some of the concepts dealing with evidence issues and estates, given that one of the main parties that would normally be a party is deceased.  And so some of the direct evidence that might normally be available is not available to the Court and how the Court struggles with that problem. So, Rick, maybe you can frame the problem with respect to claims by or against an estate.

Rick Bickhram: Well, Sean, I’m looking at Section 13 of the Evidence Act and under Section 13 it states, “in an action by or against the heirs, next-of-kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence”.

Sean Graham: And the way I read that Section is basically that it’s not enough for someone claiming against an estate to show up after the death of the deceased and say, “I had a contract with the deceased. I was going to provide services and the deceased was going to pay me $100,000, and I provided those services.  I mowed the lawn of the deceased and I kept the house clean and so forth, and I fulfilled my side of the bargain, and now I want my $100,000”. If you want to bring a claim like that, you need to have some sort of corroborative evidence because otherwise it’s your word against the deceased’s, and of course, the deceased is not able to speak for him or herself.

Rick Bickhram: Before we touch on what type of evidence, I guess, we can use to corroborate such a claim, Sean, I’d just like to get what you think about the public policy reasons behind the Evidence Act. I’m guessing that the reason why this statute exists pretty much is because any evidence that is not corroborated by some type of external evidence other than testimony or viva voce evidence, is probably because it would constitute hearsay evidence.

Sean Graham: Well I’m not sure about, I mean a lot of the evidence that would be relied on would be purportedly direct evidence because the claimant would say, “No, the deceased told me this, I heard the deceased say this”, so that’s direct evidence. The issue I would have is that you can’t test that evidence, you can’t weigh the credibility of that evidence against what the deceased might say because, of course, you don’t know what the deceased might say. And so it’s an added hurdle to someone who shows up after the death and says, “Well I have all these entitlements because of this arrangement with the deceased or that arrangement with the deceased, and you can trust me because I’m telling the truth”. Well the Court, you know, holds people to a higher standard than that. 

And another comment I would make is that in many cases where somebody brings a suit against the estate, the facts that might give rise to that suit might have been present while the deceased was still alive and so there might be…another public policy aspect to this is, “Hey, if you didn’t start the lawsuit while they were alive and could defend themselves, you’d better have some pretty good evidence after that”, or not pretty good evidence but you’d better have some evidence to corroborate what you’re saying because otherwise, we’re going to assume that you might not be telling the truth and we’re not going to give your evidence any weight and you can’t bring your claim. So you need some corroboration to be able to bring it.

Rick Bickhram: Now, touching on the evidence, the corroborating evidence that would necessarily be used to prove such a claim, there’s a vast amount of case law out there which touches on this, such as, corroborating evidence can be the course of conduct of the parties, it can be an existing contract in place, it possibly could be witnesses who’ve heard the deceased mentioned or some form of verbal contract. And I’ll let Sean, I guess, discuss more specifically any case laws that may come to mind.

Sean Graham: Oh sure, and I think that when you talk about sort of broad categories of evidence that might be applicable and helpful to corroborate and meet the standard under Section 13, when you have broad categories like that then almost inevitably it seems to me the Court is bound to treat these matters on a case-by-case basis. So I don’t think there is likely to be any hard and fast rules where, you know, if you can check off box 1, 2 and 3 on a checklist well then you meet the standard under Section 13 and you’re good to go ahead with the litigation. I think that in each case, you know, you’re never going to be really sure because the Court is going to look at whatever evidence is purported to be pursuant to Section 13, and look at it in the circumstances of that particular case before deciding whether you meet the standard. But maybe, I think it’s worth mentioning at least one case, and if we’re going to mention one case, I guess it should be the Burns Estate and Mellon case.  That’s Burns is B-U-R-N-S and Mellon is M-E-L-L-O-N. This is a Court of Appeal case from the year 2000 and you can find it at 34 Estates and Trusts Reports, 2^nd. ed., page 175. 

In this case the personal representative of an estate was the one bringing the claim.  So you can either sue the estate or the estate can sue you, but in either case, you need Section 13 evidence. In this case it was the estate doing the suing and the estate brought an action against a person who received a large transfer from the deceased about two years before death.  And so the issues dealt with by the Court of Appeal were how exactly do you corroborate the claim and what standard did the estate have to meet and was the standard met in this case? Now the Court of Appeal held that if you are assessing Section 13 evidence, of course, it’s the civil standard, meaning the balance of probabilities. So if the Court feels that on a 51% basis you’ve proven that you have corroborative evidence, that’s good enough and on you go with the lawsuit. But if you’re at the 48%, in theory anyway, then its full-stop and you don’t meet the standard.

In this case, there were several pieces of evidence and each piece of evidence on its own was not necessarily strong evidence.  But again, in all the facts of the case, and I think this is the exercise we have to do, in all the facts of that particular case it was good enough, when you add it altogether to provide the necessary corroboration.  And I think it’s important to note that the Court of Appeal did, in fact, state that if each separate piece of purported corroborative evidence wasn’t particularly strong and it was only when you cumulatively looked at them in a cumulative sense that they were enough to get the estate over the standard threshold.

Rick Bickhram: And looking at the facts and the reasonings of the Court, it makes complete sense.  What the Court came out here pretty much, I’m guessing it did, and said here was that based on each individual piece of evidence, it wouldn’t probably be enough to sway a Court to say on the balance of probabilities, there’s enough corroborating evidence to verify the claim.  However, the Courts addressed that issue by saying they’ve looked at the totality of the circumstances here and in light of that, it was enough to validate the claim.

Sean Graham: Yeah, and I think that’s a pretty good example of just to what extent these matters are going to be treated with on a case-by-case basis by the Court.  And just a comment on clients and advising on this point. I find very often clients are very surprised when they come in and want to discuss a claim against an estate and you ask them, “well, okay, but what evidence do you have supporting that claim?” and they say, ”well, what do you mean? The deceased told me X, Y and Z, and that’s all the evidence I need, that’s the claim”. Well, no.  And that can be an uncomfortable discussion because, you know, parties, when someone is often elderly and often in ill health, the last thing most of them want to do is start collecting evidence to be able to sue their estate down the road and often the deceased is in the exact same position. The last thing they want to worry about if they’re maybe in ill health and declining is setting up a bunch of lawsuits for their personal representatives to bring on their estate’s behalf after their death. So, very often there may have well been a very good claim, except that nobody, the priority during life was not to create a bunch of evidence or to collect a bunch of evidence to be able to sue someone after the fact. And clients often, you know, they’re sort of kicking themselves in the foot because they weren’t thinking about this.  But, of course, to me it seems perfectly natural not to be thinking about that.

Rick Bickhram: I agree, Sean, and that definitely can lead to some uncomfortable discussions.

Sean Graham: I think that brings us to the end of this week’s discussion. Thanks to everyone for listening and thanks for joining us today.  And Rick, thanks so much.

Rick Bickhram: It was a pleasure to podcast with you today, Sean, and I look forward to podcasting with you again soon.

Sean Graham: And we always look forward to hearing from our listeners.  If you care to comment, you can send us an e-mail at hull.lawyers@gmail.com or you can just pick up the phone and leave us a message on our comment line, that’s 206-350-6636. We love to get constructive criticism and comments whenever anyone is kind enough to provide it. Be sure to visit our blog at estatelaw.hullandhull.com. You’ll find lots of information, lots of discussion on estate litigation and capacity litigation. We hope you enjoyed today’s show.  Again, I’m Sean Graham.

Rick Bickhram: And I’m Rick Bickhram. Until next week, so long.

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.

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