Q + A with Rodney Hull - Hull on Estates Episode 161

Posted on May 5, 2009 by Hull and Hull LLP

 

Listen to Q + A with Rodney Hull

This week on Hull on Estates Jonathan Morse interviews Rodney Hull about his career as a lawyer. He discusses how he got started in estate litigation, how Hull and Hull was founded, how the practice of estate litigation has changed and the effect of electronic means of communicating on the practice of law.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog. 

 

 

Illustrating the Use of Technology - Hull on Estate and Succession Planning #163

Posted on May 5, 2009 by Hull & Hull LLP

Welcome to Hull on Estates and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag. The podcast you’re listening to will provide information and insights into estate planning in Canada. From the offices of Hull & Hull in Toronto, here are Ian and Suzana.

Suzana Popovic-Montag:   Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 163 of our podcast on Tuesday, May 4, 2009.

Ian Hull:   Hi Suzana.

Suzana Popovic-Montag:   Hi Ian.

Ian Hull:   Well today we thought we would reminisce a little and talk about a project that is something in the technology scheme. We’ve been talking about lots of legal issues and last week we touched on some technology issues and so we thought we would finish the thought, so to speak. And what we thought we’d talk a little bit about today is an experiment at first and now part of our firm, to maybe illustrate the use of technology and where it can help and where it can hurt presumably. We have talked a little bit about, no doubt in a future podcast we’ll touch on Twitter and its growth. We’ve been on Twitter for quite a while and its not new to us but its now hitting the mainstream so its sort of fun to watch. But what we did probably 5 years ago was start an unknown concept called Knowledge Management. And why we want to talk about it today was because I think it really helps illustrate a little bit about where, if you’re going to practice in this area, where we found it was effective to focus. And we’ve grown from a small operation in our firm of Knowledge Management now to a designated lawyer and a systemized procedure for Knowledge Management.

But let’s start first of all, if you could, explain to us what you’re talking about Knowledge Management.

Suzana Popovic-Montag:   Well Ian as lawyers, our job is really to communicate knowledge and information to our clients to assist them with their particular issues. And when you specialize in an area of law, as estates and trusts for instance, you need to really know your area of law and you need to know it better than anyone else. And because there is so much information out there and because the law does tend to change, maybe not radically but certainly there are cases that update other cases. And you want to stay on the leading edge of every bit of information you can. You try to, and we’ve tried to, sort of co-ordinate our information, so that it’s in one place. That information being the legal information, that being precedents, that being case law, that being anything that we rely on in our daily practices and make it available to all of us internally. And that’s what we really mean by Knowledge Management. Managing our knowledge within our firm.

Ian Hull:   And it really is more than just precedent management. As lawyers and as any professional, you do something once and you think well, you know what, I might be able to tweak that the next time and use the law to that product again.   That’s not what this is about. This isn’t about just saving the latest Statement of Claim you drew in a pile in the corner. This is about organizing office information and inside and outside information. And we broke it down into many categories and I think part of it that’s worth talking about is it’s a testament to the organization skills of our Manager of Knowledge Management, Sharon Davis. But one of the things that I’m struck by is that there are sort of two components to Knowledge Management. There’s the legal substantive component which we will talk about but there’s also the non-legal. How many times a day are we asked for do you know someone who can do x or y, who are in the affiliated professional sphere of our day. And we have branched our Knowledge Management into that as well. And maybe you could give us an illustration of the kinds of sources that we might have in Knowledge Management to help move that issue along in the day.

Suzana Popovic-Montag:   Well Ian, many times we’ll have different issues arise in our practice like the need, for instance, for a capacity assessor. The need, for instance, of a real estate lawyer who might be able to deal with a particular aspect on an estate matter. We might need contact information for a private investigator, an airship searcher or something like that. And what we’ve done with our Knowledge Management system is create a database of individuals, a list of these people, these go-to’s for everyone to sort of find in one place the quickest answer, so that when someone does say do you know of, we can just go to one place within our system internally and find an answer for that individual.

Ian Hull:   And I think, and we mentioned a couple of podcasts ago, it also is tested individuals. You’re trusted with, you know, how many times if you see an issue for say two years, you think geez, I had a person who did a great job on a triple butterfly succession planning move in Nelson, British Columbia. I just can’t remember the name of that person. You’ve got it in your system. You click it and you find it. And I mean it’s more than a glorified phone book. It’s a glorified service. It is a service to our clients that is available. And to our referring sources, that is available. A: its fast, it’s available to us fast so that helps us. We don’t have to spend a lot of time doing. But B, most importantly, it’s a reliable source and it’s a tested source. And there’s this old saying that garbage in, garbage out in any data organizing and that’s the same with Knowledge Management. If you put garbage in, you put sources in that aren’t trusted, verifiable sources, then when you go and do it quickly and you don’t think and you say there’s the name from Nelson, British Columbia, you’re putting at risk your whole sort of reputation as to a referring source. So that’s the one wing of Knowledge Management that I think that has a global sort of usefulness to it. And the tools that we use with it, the software and stuff, I mean just spend some time on the internet. You’ll see two or three different products. The product we use, of course, is now pretty well out of service but that’s what happens when you use software. You have to manipulate and adapt. And we’re looking at upgrading it and working that around. But I wanted to start there because I thought that was really global use of Knowledge Management.

But now let’s just spend a couple of minutes talking about the specific use of Knowledge Management we do at our estates practice. And I think the easy illustration is drafting solicitors have available to them precedent books that are updated regularly. And so if you’re going to on-line, not just books, but on-line service. So if you have that available, that’s one thing. But if someone says geez, I want to do an RRSP clause and there’s resources available to us as lawyers to look at how it was done before and done in the future. But if you want to have an article on the recent trend of RRSP clauses and think about well, what about adding a different revocation language or something like that, we link that as well. So we have an ability to link to our most recent draft of that clause, we subcategorize that clause to say, you know, to second wife, to first wife. And then the final thing is that we’ll link to a recent article. So that we can refresh and be more enhanced with our analysis. So that we’re not just taking a precedent, popping it in and not thinking. We’re taking a precedent, popping it in, looking at a source document to remind us of the issues we should be tuned into once we’ve taken the document out. And when they’re altogether and in our system we simply have it linked, so it’s not a re-inventing of the wheel.

So from a substantive drafting standpoint, it can mean much more enhanced materials. We obviously don’t…I mean no precedent is worth anything really. It’s just saving you some key strokes. The precedent has to be adapted to your circumstances.

Suzana Popovic-Montag:   But it is definitely a good starting point. And particularly we’ve found internally very helpful as we bring in younger, newer lawyers into the system who are trying to learn the whole area of law. It really does help to synthesize the knowledge all in one place. And I think back to the days when we went in law school and we were still looking up in the hard copies of books and things like that. And with the wonders of technology, it has just taken the burden of that research, of that learning, of that locating and made it so much more accessible and easier and faster.

Ian Hull:   Absolutely. Alright, well I think that wraps up our talk on technology and Knowledge Management and next week we have a really neat topic on substantive law issues that we want to delve into. So I hope everybody has enjoyed our little soiree outside of the core estate issues. But we’re going to come back with some more substantive stuff. So thank you very much Suzana, and I appreciate everybody joining us today.

Suzana Popovic-Montag:   Bye now.

You have been listening to Hull on Estates and Succession Planning by Ian Hull and Suzana Popovic-Montag. The podcast that you have been listening to has been provided as an information service. It is a summary of current issues in estates and estate planning. It is not legal advice and you are reminded to always speak with a legal professional regarding your specific circumstance.

 

To listen to other Hull & Hull podcasts, or leave any questions or comments, please visit our website at hullestatemediation.com. 

Illustrating the Use of Technology - Hull on Estate and Succession Planning #163

Posted on May 5, 2009 by Hull & Hull LLP

Welcome to Hull on Estates and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag. The podcast you’re listening to will provide information and insights into estate planning in Canada. From the offices of Hull & Hull in Toronto, here are Ian and Suzana.

Suzana Popovic-Montag:   Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 163 of our podcast on Tuesday, May 4, 2009.

Ian Hull:   Hi Suzana.

Suzana Popovic-Montag:   Hi Ian.

Ian Hull:   Well today we thought we would reminisce a little and talk about a project that is something in the technology scheme. We’ve been talking about lots of legal issues and last week we touched on some technology issues and so we thought we would finish the thought, so to speak. And what we thought we’d talk a little bit about today is an experiment at first and now part of our firm, to maybe illustrate the use of technology and where it can help and where it can hurt presumably. We have talked a little bit about, no doubt in a future podcast we’ll touch on Twitter and its growth. We’ve been on Twitter for quite a while and its not new to us but its now hitting the mainstream so its sort of fun to watch. But what we did probably 5 years ago was start an unknown concept called Knowledge Management. And why we want to talk about it today was because I think it really helps illustrate a little bit about where, if you’re going to practice in this area, where we found it was effective to focus. And we’ve grown from a small operation in our firm of Knowledge Management now to a designated lawyer and a systemized procedure for Knowledge Management.

But let’s start first of all, if you could, explain to us what you’re talking about Knowledge Management.

Suzana Popovic-Montag:   Well Ian as lawyers, our job is really to communicate knowledge and information to our clients to assist them with their particular issues. And when you specialize in an area of law, as estates and trusts for instance, you need to really know your area of law and you need to know it better than anyone else. And because there is so much information out there and because the law does tend to change, maybe not radically but certainly there are cases that update other cases. And you want to stay on the leading edge of every bit of information you can. You try to, and we’ve tried to, sort of co-ordinate our information, so that it’s in one place. That information being the legal information, that being precedents, that being case law, that being anything that we rely on in our daily practices and make it available to all of us internally. And that’s what we really mean by Knowledge Management. Managing our knowledge within our firm.

Ian Hull:   And it really is more than just precedent management. As lawyers and as any professional, you do something once and you think well, you know what, I might be able to tweak that the next time and use the law to that product again.   That’s not what this is about. This isn’t about just saving the latest Statement of Claim you drew in a pile in the corner. This is about organizing office information and inside and outside information. And we broke it down into many categories and I think part of it that’s worth talking about is it’s a testament to the organization skills of our Manager of Knowledge Management, Sharon Davis. But one of the things that I’m struck by is that there are sort of two components to Knowledge Management. There’s the legal substantive component which we will talk about but there’s also the non-legal. How many times a day are we asked for do you know someone who can do x or y, who are in the affiliated professional sphere of our day. And we have branched our Knowledge Management into that as well. And maybe you could give us an illustration of the kinds of sources that we might have in Knowledge Management to help move that issue along in the day.

Suzana Popovic-Montag:   Well Ian, many times we’ll have different issues arise in our practice like the need, for instance, for a capacity assessor. The need, for instance, of a real estate lawyer who might be able to deal with a particular aspect on an estate matter. We might need contact information for a private investigator, an airship searcher or something like that. And what we’ve done with our Knowledge Management system is create a database of individuals, a list of these people, these go-to’s for everyone to sort of find in one place the quickest answer, so that when someone does say do you know of, we can just go to one place within our system internally and find an answer for that individual.

Ian Hull:   And I think, and we mentioned a couple of podcasts ago, it also is tested individuals. You’re trusted with, you know, how many times if you see an issue for say two years, you think geez, I had a person who did a great job on a triple butterfly succession planning move in Nelson, British Columbia. I just can’t remember the name of that person. You’ve got it in your system. You click it and you find it. And I mean it’s more than a glorified phone book. It’s a glorified service. It is a service to our clients that is available. And to our referring sources, that is available. A: its fast, it’s available to us fast so that helps us. We don’t have to spend a lot of time doing. But B, most importantly, it’s a reliable source and it’s a tested source. And there’s this old saying that garbage in, garbage out in any data organizing and that’s the same with Knowledge Management. If you put garbage in, you put sources in that aren’t trusted, verifiable sources, then when you go and do it quickly and you don’t think and you say there’s the name from Nelson, British Columbia, you’re putting at risk your whole sort of reputation as to a referring source. So that’s the one wing of Knowledge Management that I think that has a global sort of usefulness to it. And the tools that we use with it, the software and stuff, I mean just spend some time on the internet. You’ll see two or three different products. The product we use, of course, is now pretty well out of service but that’s what happens when you use software. You have to manipulate and adapt. And we’re looking at upgrading it and working that around. But I wanted to start there because I thought that was really global use of Knowledge Management.

But now let’s just spend a couple of minutes talking about the specific use of Knowledge Management we do at our estates practice. And I think the easy illustration is drafting solicitors have available to them precedent books that are updated regularly. And so if you’re going to on-line, not just books, but on-line service. So if you have that available, that’s one thing. But if someone says geez, I want to do an RRSP clause and there’s resources available to us as lawyers to look at how it was done before and done in the future. But if you want to have an article on the recent trend of RRSP clauses and think about well, what about adding a different revocation language or something like that, we link that as well. So we have an ability to link to our most recent draft of that clause, we subcategorize that clause to say, you know, to second wife, to first wife. And then the final thing is that we’ll link to a recent article. So that we can refresh and be more enhanced with our analysis. So that we’re not just taking a precedent, popping it in and not thinking. We’re taking a precedent, popping it in, looking at a source document to remind us of the issues we should be tuned into once we’ve taken the document out. And when they’re altogether and in our system we simply have it linked, so it’s not a re-inventing of the wheel.

So from a substantive drafting standpoint, it can mean much more enhanced materials. We obviously don’t…I mean no precedent is worth anything really. It’s just saving you some key strokes. The precedent has to be adapted to your circumstances.

Suzana Popovic-Montag:   But it is definitely a good starting point. And particularly we’ve found internally very helpful as we bring in younger, newer lawyers into the system who are trying to learn the whole area of law. It really does help to synthesize the knowledge all in one place. And I think back to the days when we went in law school and we were still looking up in the hard copies of books and things like that. And with the wonders of technology, it has just taken the burden of that research, of that learning, of that locating and made it so much more accessible and easier and faster.

Ian Hull:   Absolutely. Alright, well I think that wraps up our talk on technology and Knowledge Management and next week we have a really neat topic on substantive law issues that we want to delve into. So I hope everybody has enjoyed our little soiree outside of the core estate issues. But we’re going to come back with some more substantive stuff. So thank you very much Suzana, and I appreciate everybody joining us today.

Suzana Popovic-Montag:   Bye now.

You have been listening to Hull on Estates and Succession Planning by Ian Hull and Suzana Popovic-Montag. The podcast that you have been listening to has been provided as an information service. It is a summary of current issues in estates and estate planning. It is not legal advice and you are reminded to always speak with a legal professional regarding your specific circumstance.

 

To listen to other Hull & Hull podcasts, or leave any questions or comments, please visit our website at hullestatemediation.com. 

 

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Guardianship in Canada - Hull on Estate and Succession Planning

Posted on December 9, 2008 by Hull and Hull LLP

 

Listen to Guardianship in Canada

This week on Hull on Estate and Succession Planning, Suzana Popovic-Montag speaks with Rodney Hull about how the law has changed in Canada as it pertains to the appointment of guardians. Rodney suggests that today's laws (post-1994) are clearer than they were in the past.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

Guardianship in Canada - Hull on Estate and Succession Planning - Podcast #142

Posted on December 9, 2008 by Hull & Hull LLP

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag that will provide information and insights into estate planning in Canada. From the offices of Hull & Hull in Toronto, here are Ian and Suzana.

 

Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening, and some of you may be watching, episode 142 of our podcast on Tuesday, December 9th, 2008.

Hello there Rodney.

Rodney Hull: Hi Suzana.

Suzana Popovic-Montag: I’m very pleased to have Rodney Hull join me again this week to fill in for Ian Hull. We’re very pleased to have you and thank you for joining us, Rodney.

Rodney Hull: Thank you very much for having me.

Suzana Popovic-Montag: What I thought we might do a little bit today, since we have you sort of here in the hot seat is to get your thoughts, and I know we’ve talked a lot in the past about capacity litigation and this whole grey zone as to whether or not someone is capable or incapable and what happens if they’re no longer capable. And so I thought having you here, we’d have the opportunity to maybe talk a little bit about the change in the law since when you started practicing back in 1957 and we still called it like a committeeship, and how things may have changed since 1994 when the new Substitute Decisions Act came into place.

Rodney Hull: Well in the pre-1994 legislation, the first distinction was that they changed the fiduciary, the name of the fiduciary from a committee to what it is today, which is the…

Suzana Popovic-Montag: Guardian.

Rodney Hull: Guardian. And basically though the function of the guardian is the same today as it was then.  There is a far superior structure created by the new Substitute Decisions Act which gives a great deal more guidance to persons involved in committeeships as we used to call them. Before you simply applied, we did the same thing: we had psychiatrists and one would say this and one would say that, we would have doctors, we would have bankers, we would have investment people saying whatever their opinion was, and a committee was appointed for the person if it could be shown that the person was not capable of managing his or her affairs. Now it’s exactly the same but we have guidelines, much more direct, clear guidelines as to who we use, what we’re doing, we have referees, we have persons who are directed to make decisions as to whether or not there is the capacity to manage your own affairs. That’s clear, they’ve been set out. Before it was by guess and by God. The judge would listen to the evidence and it would be the judge that made the determination. Not a very satisfactory way of doing it, not because the judges weren’t every bit as good then as they are now or had less ability. It’s just that there is a scientific aspect to the appointment of guardians that I think we didn’t realize as much then as we do now, and that it isn’t basically simply a judicial function. It’s a function that involves almost all the aspects that one would put into ordinary daily living concepts.

Suzana Popovic-Montag: Right and you say that comes about because of the clearer definition that’s set out in our statute now.

Rodney Hull: That is correct. Yes, I think so. I think it gives us great guidance. It makes clear what we should be doing and the procedure is far, far more closely defined. Before it was, as I say, by guess and by God. You brought an application to have a committee appointed under the Act and of course the Children’s Lawyer would sometimes be involved, and the Public Guardian and Trustee was involved, as they are today.

Suzana Popovic-Montag: That’s right. And now that’s certainly from the financial perspective. So when we’re appointing someone to manage property, but how would you say, if at all, its changed in terms of having someone appointed for personal care?

Rodney Hull: That, of course, is probably the most difficult aspect to try and deal with.

Suzana Popovic-Montag: Yeah.

Rodney Hull: You know you…there are some people you don’t want to have the ability to pull the plug on you, that’s for certain. And we can all figure out who some of them are. But basically, I think the ones that are nearest and dearest to you are the ones that should have that decision. There is nothing worse, in my mind, than having no direction really, no written direction, but to have a gathering of 6 or 7 people around and there you are with one of these breathing devices in you, you hate it, your arms are tethered, you can’t tear it out, and they’re sitting around the table arguing whether or not it should be pulled out. We want Dad or Mom or Auntie so and so to have every chance to live and come back, even though the doctors say he or she is going to be a vegetable. That’s not good. But to be able to show the directing people that you have the authority to do it I think is very important. Finding that person is where the rubber hits the road.

Suzana Popovic-Montag: It’s so true and, you know, I wonder, from your experience, like I know certainly judges are reluctant these days to make those kinds of decisions, because those are such personal decisions that they don’t necessarily feel qualified in many cases to make that kind of a determination. Was it any different under the prior legislation?

Rodney Hull: Oh I don’t…I think myself that there was no clear authority to do it but the doctors looked after it pretty well.

Suzana Popovic-Montag: That’s true.

Rodney Hull: But everybody has become very conscious of taking on any responsibility that might involve you with bad feelings between people and I think that basically is how it was done. It was just done by guess and by God and sometimes oxygen didn’t get through, that’s all, sorry about that.

Suzana Popovic-Montag: It really seems to underscore, to me anyway, the importance of this planning, of planning during your lifetime, of telling people what it is you want and why it is you want it so that when these tough decisions have to be made, then you know at least you’ve got some guideposts.

Rodney Hull: You really don’t have to be too clear as to what you want. You don’t want to be going through a lifetime of pain and suffering and stuck with one of those things in your head backed up, and the pump going and you’re there, you’re not conscious. You don’t have to be a Rhodes scholar to figure that person doesn’t want to hang around very long.

Suzana Popovic-Montag: That’s for sure.

Rodney Hull: You know.

Suzana Popovic-Montag: So just in terms of some advice, Rodney, what would you say to people who are dealing with individuals who are sort of in this grey zone, where we’re just not sure if they are fully cognizant and capable or maybe they’re on the cusp of no longer having capacity? Any thoughts or any guidance for us in terms of dealing with those kinds of individuals?

Rodney Hull: Well I guess kindness is the only word that really comes on bidden to the lips. It’s a very difficult responsibility to take on; it’s a very difficult responsibility to pass on. So it just has to be guided by common sense and as I say, kindness, probably.

Suzana Popovic-Montag: Yeah. Well thank you very, very much, Rodney. It was a pleasure having the opportunity to podcast with you again, and to seek some of your thoughts and guidance to us, so thank you for joining us.

Rodney Hull: Thank you, Suzana, for having me.

Suzana Popovic-Montag: And just a quick reminder to everyone to feel free to provide us with any comments, any feedback, at hullandhull@gmail.com or feel free to visit our blog at estatelaw.hullandhull.com.

You have been listening to Hull on Estates and Succession Planning by Ian Hull and Suzana Popovic-Montag. The podcast you have been listening to has been provided as an information service. It is a summary of current issues in estates and estate planning. It is not legal advice and you are reminded to always speak with a legal professional regarding your specific circumstance.

 

To listen to other Hull & Hull podcasts, or to leave any questions or comments, please visit our website at hullestatemediation.com. 

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The Benefits of the Family Meeting - Hull on Estate and Succession Planning #141

Posted on December 3, 2008 by Hull and Hull LLP

 

Listen to The Benefits of the Family Meeting

This week on Hull on Estate and Succession Planning, Suzana Popovic-Montag speaks with Rodney Hull about the benefits of holding a family meeting to discuss estate matters while the testator is still alive. They both extend their condolences to the family of Ted Rogers, who passed away today.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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Rose v. Rose - Hull on Estates #139

Posted on December 2, 2008 by Hull and Hull LLP

Listen to Rose v. Rose

This week on Hull on Estates, Rodney Hull and Jonathan Morse discuss the case of Rose v. Rose [which can be found at 24ETR(3D)217 or 81OR(3D)349]. The case is valuable and instructive as it  raises questions about rectification, rescission and removal of the trustees.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

Rose v. Rose - Hull on Estates Podcast #139

Posted on December 2nd, 2008 by Hull & Hull LLP

Jonathan Morse: Hello and welcome to Hull on Estates. You’re listening to episode 139 on Tuesday, December 2nd, 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.

 

Rodney Hull: Hi and welcome to another episode of Hull on Estates. I’d Rodney Hull.

Jonathan Morse: And I’m Jonathan Morse.

Rodney Hull: If you want to be heard on Hull Estates, you can participate by leaving us a comment. E-mail us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Jonathan Morse: Thank you for that, Rodney. Today I thought, with your agreement, that we would discuss a case which is called Rose and Rose. And it’s a decision of the Ontario Superior Court of Justice. It’s 24 E.T.R. (3d) 217. Also found at 81 O.R. (3d) 349. And I might just spend a moment introducing the facts of this case. The decision was by Justice Lissaman. The decision was made August 2, 2005. Sorry, the judge was June 19, 2006. It was heard August 2, 2005 as well as March 6 and 7, 2006.

And in this case, it deals with a trust that was established. A cottage property was put in a trust in 1992 and at the time, there were two children who were the beneficiaries of the trust. The children were age 7 and 9. And at the time the trust was created, the relationship between the husband and wife was friendly. And unfortunately, as matters progressed, the relationship, the marriage broke down and, of course, the trust issue arose. And we both had a chance to speak about this, and I thought I might ask your thoughts, Rodney, on the value of this case.

Rodney Hull: Well I think this is a very valuable case, from a standpoint of lawyers practising in the trusts and estates field because it deals with the subjects of rectification, rescission, removal of trustees and just some general principles of interpretation. Its descriptive, it’s incisive and it’s well written, this judgment, and very educational, in my view. Written in plain terms and readily understandable.

Jonathan Morse: If you would, Rodney, would you just maybe speak about the rectification aspect of the case to start us off.

Rodney Hull: Well the questions raised by, in rectification, rescission and removal of the trustee are dealt with by the trial judge. And he finds that none of these particular forms of relief are available in the circumstances because the law simply does not go far enough to permit it in this particular case. And where he does linger for the most part is on the question as to whether or not he can use, occupy and enjoy the property during his lifetime or during the period of the trust. And some general principles of interpretation are dealt with. The unfortunate part was that the trust deed did not deal with use, occupation and enjoyment, nor does there appear to be any consideration given to a right to occupy and enjoy. The question, of course, raised is if it had been raised by the estate planner, it seems to me that it would just call on bidden to the lips the response well, don’t worry, the children will let me on the property any time I want, so we don’t have to provide it. And it might as well have had some adverse tax consequences upon a reading of Section 105 of the Income Tax Act of Canada, had it been specifically included as a provision in the agreement, perhaps as a benefit or some other right to enjoy, which had a value.

Jonathan Morse: And just on that point, Rodney, if I may. I understand on the facts that there was a disagreement between the husband and wife as to the purpose of the trust and the husband’s view was that it was motivated for tax reasons.

Rodney Hull: Yes.

Jonathan Morse: But the wife, her view was that the trust was established essentially to give the property to the two children. So I guess the intention of the parties, they had a disagreement as to their intention and that affected, played into whether there could be any rectification, is that right?

Rodney Hull: Well, I think so. And I can say this that the tenor of the relationship between the father and his daughters and the father and the mother were such that the judge held that they simply couldn’t co-exist on the same property and accordingly, he had to meet the question of use and occupation and enjoyment on general principles of interpretation. And he simply wasn’t able to come to the conclusion that there was a use, occupation and enjoyment right in the father who had given the property to the children. I have to say that it’s an extremely difficult decision for the trial judge by reason of the fact that the feelings were so bad that he had to consider that probably as the most important consideration to be dealt with in making the determinations.

Jonathan Morse: And one further question, if I may. Clearly the trust document, the deed of trust, it could have addressed this issue of use, is that correct?

Rodney Hull: Yes it could have.

Jonathan Morse: And because it didn’t, there was no room to interpret that the husband, the settlor had any right to use the property.

Rodney Hull: That is so. I think the judge based his decision on the fact that he could not act on surmise or guesswork. And in this case, he simply had to deal head-on with the general principle of interpretation that I set out earlier in this discussion.

Jonathan Morse: And just one other, a few other issues come up but we are running out of time. On the conflict issue, I think the judge held simply that the husband could not continue to act as a trustee when he had a personal interest in the use of the property but also had a role as a trustee. And therefore had to step down as trustee.

Rodney Hull: Well I think the trial judge was faced with the plain and simple fact that the children and the father were not able to get along together and how can a trust be properly administered by a trustee when such bad feelings arise between them? And there’s lots of authority for that proposition and I think the judge came to the correct conclusion in removing the father as a trustee in the circumstances. However, I note that I had the general feeling that the trial judge really wanted to help the husband in some way but was unable to do so. But I noted that the costs on the highest level were awarded out of the assets of the trust. And I think that would fortify my feeling that the judge felt very uncomfortable in disposing of the matter to the detriment of the husband.

Jonathan Morse: Well I think we’ve discussed a few different aspects of this case and as I understand, it’s quite an important case in this area. I think that brings us to the end of this week’s discussion. Thanks for listening and thanks for joining me and Rodney today. It was a pleasure to be able to work with you, Rodney, on this podcast. And I look forward to podcasting with you again soon.

Rodney Hull: The pleasure is mine. Thank you.

Jonathan Morse: We look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practise of estate law. We hope that you enjoyed the show. I’m Jonathan Morse.

Rodney Hull: And I’m Rodney Hull. 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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Leaders in the Legal Profession

Posted on January 15, 2007 by Hull and Hull LLP

Wolfe Goodman, Q.C., one of the foremost minds in Canadian Estates and Trusts law, recently passed away. Mr. Goodman’s accomplishments and impact were briefly described in the most recent issue of the OBA’s Briefly Speaking.

I did not know Mr. Goodman personally, but the loss of someone like him is nevertheless cause for reflection on the vital role senior lawyers play in the profession. I was blessed early on in my career to work for Melville O’Donohue, Q.C., a lawyer of some fifty years worth of experience. The practice habits I picked up from Mr. O’Donohue were invaluable and, I can only hope, long-lasting.

I suspect that literally thousands of lawyers would say similar things about Mr. Goodman.

An example closer to home is Rodney Hull, Q.C., Hull & Hull’s co-founder and likely the most accomplished estate litigator in the Province of Ontario during the last half-century. I can often get a better answer to a question after two minutes with Rodney than 5 hours of research in the library would get me.

Knowledge, judgment and experience are the probably the most valuable assets a lawyer can possess, and the most difficult to obtain, which makes lawyers like Mr. Goodman priceless and irreplaceable to the profession, and, by extension, the public as well.

Thanks for reading.

Sean Graham

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