In this episode of Hull on Estates, Megan Connolly and Rick Bickhram discuss some interesting legal issues that surround assisted reproductive technology and succession law.

Comments? Leave us a message on our comment line at 206-350-6636, send us an email at hull.lawyers@gmail.com or you can post a comment on our blog at http://estatelaw.hullandhull.com/.

Assisted Reproductive Technology and Succession Law - Hull on Estates Podcast #101

Posted on March 11^th, 2008 by Hull & Hull LLP

Megan Connolly: Hello and welcome to Hull on Estates. You’re listening to Episode 101 of our podcasts on Tuesday, March 11^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.

Megan Connolly: Hi and welcome to Hull on Estates. I’m Megan Connolly and I’m joined here today by my colleague, Rick Bickhram.

Rick Bickhram: Hello.

Megan Connolly: Recently I attended a conference put on by the Ontario Bar Association and Clare Burns, who’s the Children’s Lawyer for the province of Ontario, presented a very, very interesting paper on assisted reproductive technology and succession law in Ontario. As a starting point, it’s interesting to note that 1 in 8 Canadian couples experience difficulties with fertility and assisted reproductive technologies are becoming increasingly used to help a couple conceive. Now for those of you who aren’t scientifically savvy, assisted reproductive technology is the name used for the process of combining genetic material under specific conditions. I’m not going to spend too much time on all the details because I don’t have a science background myself, but I’ll point out there are two main types. The first is what we call intrauterine insemination or what may be more usually called in vitro fertilization. The other is intrauterine insemination, which I guess more commonly is called artificial insemination.

While this type of technology is very, very helpful in helping people who conceive who otherwise wouldn’t be able to, it raises some very, very interesting legal issues. For example, what happens if the donor of genetic material dies? Who then becomes entitled to use it? Or what happens when you have a couple who are together, decide they want to create the sort of genetic material by way of say, in vitro fertilization. There’s material that’s being stored, they break up.  Who then becomes entitled to use it, if anyone?

Rick Bickhram: Those are all really well-raised issues, Megan, and looking at our laws and looking at where the technology is today or the evolution of technology is, I think it’s trite to say that our legal system hasn’t kept pace with the advances in technologies and that is natural because technology increases or the advances in technologies steps forward every day. Looking at our legal statutes that address the issues as my colleague, Megan, has just pointed out.  In Ontario, we do have one statute or a statute that addresses the gifts and transplants from the human body. And this statute is called the Trillium Gift of Life Network Act.

Megan Connolly: Right.  Now what does that provide for?

Rick Bickhram: The Trillium Gift of Life Network Act provides for gifts, transplants and the use of human bodies and body parts during life and after death. However, it specifically excludes sperm, ova and embryos from the definition of tissues.

Megan Connolly: So, I guess as a result, neither the deceased nor his or her next-of-kin can consent to the use of genetic material like frozen sperm or frozen embryos in the same way they can consent to say, a heart transplant.

Rick Bickhram: You hit the nail right on the head, Megan. The scope of the Act here does not provide for the donation of frozen genetic material. Luckily, there is an Act, it’s a federal statute, otherwise known as the Assisted Human Reproduction Act.

Megan Connolly: And what does that provide for?

Rick Bickhram: This Act provides for – or, in fact, it states, from my understanding, is that the human reproductive material can be removed from a donor’s body after the death for the purpose of creating an embryo, if the donor has given written consent. And from the reading of the statute, in my view, the Act emphasizes written consent.

Megan Connolly: Right and there are specific requirements in the Act to the written consent. It’s not just like, anything in writing. These requirements include an acknowledgement on the donor’s part that he or she was informed of the use that the genetic material would be put to. So the effect is that genetic material under the Assisted Human Reproduction Act can only be used after a deceased’s death where, during his or her lifetime, he or she provided informed written consent, clearly contemplated the uses the material would be put to and who may use it. Now, I guess this is a starting point, but it’s very, very narrow. A lot of people don’t think, “What’s going to happen to my frozen sperm or my frozen embryos when I die?”

Rick Bickhram: Yes, Megan. Well, in all fairness, it’s not something that we or that donors, I don’t think, put their mind to. However, that is why, I guess, we’re podcasting on it. It’s to bring awareness to the issue and to present the need to at least contemplate it.

Megan Connolly: Now, one thing that the Trillium Gift of Life Network Act and the Assisted Human Reproduction Act have in common is they deal with what happens to genetic material after someone dies. Now, as I raised at the beginning, you can still end up with disputes over what happens with the genetic material when people are still living. And at the beginning, the example I used is, you have a couple who maybe create embryos, freeze the embryos, they then split up and a dispute arises over what happens with the material. Who has the right to it, does anyone have the right to it and can it still be used?

On that note, Rick and I actually found a couple of interesting cases and they were discussed in further detail in Clare Burns’ paper, where this issue of what happens when a fight for genetic material breaks out when people are living. One of the cases is from Alberta. The other is from the United Kingdom.  And as we’ll discuss in a moment, they reached similar conclusions, but the underlying rationale behind each is slightly different and I think very interesting.

Rick Bickhram: The first case that I’d like to touch upon or that we would like to touch upon in North America is known as Calfield v. Wong. This is the Alberta case. Wong was Calfield’s partner.  And Wong, the gentleman, agreed to help Calfield become pregnant. As he agreed to help her become pregnant, he decided to donate some of his sperm to a sister in that regard. My understanding is that she became pregnant, maintained  4 embryos in storage at a fertility clinic.

Megan Connolly: Right, so then what happened is the relationship broke down and you had 2 couples with genetic material sitting out there, fighting over what to do with it. Wong, the male, decided that he wasn’t going to consent to the release of the remaining embryos because he didn’t want Calfield pregnant again with his children.

Rick Bickhram: To take a step back, I just want to emphasize that Wong had provided his sperm to assist Calfield become pregnant, and in that regard, he donated his sperm to a sperm bank where they fertilized embryos.

Megan Connolly: Well they fertilized the eggs and then they became embryos…

Rick Bickhram:  Embryos.

Megan Connolly:  There’s your science lesson, Rick. And I think it’s interesting, you said at the beginning they were partners and I think the partnership aspect of the case became very interesting, because the Court looked at the relationship between the two and said, “You know, they weren’t dating. It wasn’t a long term relationship. They didn’t have a relationship of inter-dependence or any permanence. What they really were was friends and that Wong just wanted to help Calfield out and gave her his sperm as a gift.”

Rick Bickhram: See and that’s – and based on that rationale, the Court, in this case, held that the embryos were Calfield’s property and that she could use them in such a way as she saw fit.

Megan Connolly: So right, that’s what it said.  It said that implicit in the gift was that they were hers to keep and use as she choose and that when he gave it to her, he really didn’t have any expectation of continued involvement. And I think the first thing I noticed is just the – I guess the way the Court looked at this. It was a very, very private law perspective. It was…the embryos were treated as property, and the, sort of, sperm was something that could be gifted and could be accepted.  And that in that gift, I guess, a proprietary right to it was lost.

Now this case is similar to a case from the United Kingdom which is Evans v. The United Kingdom, and it had somewhat similar facts. The applicant, in this case, and her partner… I’m not sure if they had been married, but they had been, I guess, in a relationship of more permanence, had gone to a fertility clinic and the woman had found out she was suffering from ovarian cancer and would have to have her ovaries removed. Before doing so, she had ova extracted and the couple consented to in vitro fertilization, using the ova and the man’s sperm. I guess the first thing I had noticed that this was different than in Canada. In the U.K., there was legislation in place and the legislation provided that either partner could withdraw consent at any time before the embryos were implanted. Now, sort of like in the first case, the embryos were created, stored at the clinic, the couple’s relationship broke down and fighting ensued. The husband wrote to the clinic asking that the embryos be destroyed –

Rick Bickhram: Well subsequently after that, from what I understand, is that the wife commenced legal proceedings seeking an injunction and basically she relied on some European conventions based on human rights and fundamental freedoms. And that was her angle or twist on the whole legal matter here, is that she decided to rely on fundamental freedoms and the right to life of the embryo, to preserve the embryos from being destroyed or to prevent this gentleman from –

Megan Connolly: Withdrawing his consent. And I think that there are three main aspects to her argument. The first was the issue of right to life. And the right to life was that of the embryo, and that by permitting him to withdraw his consent, that the embryo’s right to life would be violated. The second was the right to respect for private and family life, and this is the idea of, where, I guess, she saw as improper intervention by the government into a private and familial matter. And the third was more generally that the law was discriminatory against her.

Rick Bickhram: I believe this case ended up going to the European Court of Human Rights.

Megan Connolly: Right it did.  But first of all – I was going to say, first of all it went to the High Court in the U.K.  And this is interesting to note because in Europe, things work a bit differently. You had the High Court in the U.K. They dismissed her claim and said that parliament had provided him the right to withdraw consent, that they were aware of the act when they entered into the agreement or when they started the treatment. They also said that the embryo didn’t have a right to life and that there was no discrimination. The Court of Appeal affirmed the ruling and then the House of Lords declined to hear it. Now in Europe, as I was saying, it’s different because after you’ve run out of luck in your own country, there’s also the European Court of Human Rights, and that’s where she appealed to next.

Rick Bickhram: And from my understanding, what the Courts at the European Court of Human Rights did was, they struck a fair balance between the respect for human dignity and free will in the promotion of consent, legal clarity and certainty in law.

Megan Connolly: So I thought that was interesting. On the one hand, they were saying, “Yes, human dignity and free will is important. But in an organized society, there needs to be clarity and when there are laws and people behave in such a way on reliance or relying on those laws, expectations are created and the Court should be loathe to simply interfere because somebody later changes their mind.”

The other thing that the European Court of Human Rights said, and I thought was interesting, was that there had been a lot of focus on the woman’s desire to have a child and that’s really what the Court or what the case had been framed around. However, it pointed out that there’s no basis to assume that her desire to have a child took precedence over the man’s right not to become a parent. So, Rick, in those two cases, you see similar results, but two different approaches. The first was the North American approach, where it was much more of a private law perspective. It was based on property rights, on the idea of gift, on contract and, I guess, issues of that nature. In Europe, it was centred much more on human rights. It became the right to life, discrimination, the right of the estate to interfere or not to interfere in people’s private lives.

Rick Bickhram: That’s an interesting distinction that you make between the laws over in Europe or in the U.K. and the North American rules. I think that brings us to the end of this week’s discussion. Thanks for listening to our audience out there, and thanks for joining me today. Megan?

Megan Connolly: It was a pleasure, Rick, and I look forward to podcasting with you again soon.

Rick Bickhram: And we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com or just pick up the phone and leave us a message on our comment line at 206-350-6636. Be sure to visit our blog at estatelaw.hullandhull.com where you will find even more information and discussion on today’s practice of estate law. We hope you enjoyed the show. I’m out.

Megan Connolly: Oh, ha ha. And I’m Megan Connolly. 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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Read the transcribed version of "Vacation and Recreational Properties"

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss litigation involving vacation and recreational properties. This is an emotional as well as a legal issue. They talk about the realities of passing properties on to younger generations.

Click "Continue Reading" for the transcribed version of this podcast.

Posted on August 7^th, 2007 by Hull & Hull LLP

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You are listening to Episode #72 of our podcast on Tuesday, August 7^th, 2007.

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 Estate Mediation in Toronto, Ontario, Canada. Here are Ian and Suzana.

Suzana Popovic-Montag: Hi there Ian.

Ian Hull: Hi Suzana.

Suzana Popovic-Montag: How are you today?

Ian Hull: I’m just great thanks.

Suzana Popovic-Montag: That’s good.

Ian Hull: Well, why don’t we talk about, on this hot summer that we’re having here in Toronto, a little bit about the vacation properties.  Not just cottages, but recreational properties generally. And I thought it might be fun to do…might take a couple of podcasts to do this but let’s work through this important issue in the context of estate planning. 

Suzana Popovic-Montag: I know certainly in our last podcast, Ian, you gave some great examples about these situations where they arise in real life where people are fighting over these exact kinds of properties.  And I just mention in passing that I noticed, certainly in my own practice, that these kinds of fights are becoming more and more common than even, you know, I would have imagined.

Ian Hull: So while a vacation property such as a cottage, for example, can certainly provide years of fun and pleasure for your family and during a lifetime. And it really is a goal of many owners to ensure that younger generations continue to enjoy these properties and so on. This transition to the next generation…well first of all, being able to own recreational property is a real luxury in that sense.  But the transition is also sort of an important part of the process.

Suzana Popovic-Montag: And why do you say that, Ian?

Ian Hull: Well, keeping a vacation property in the family has really become both an emotional and a legal issue. Because you, just by virtue of its unique characteristic, you create interesting emotions to the property itself.  It’s not just like the house. Certainly in our experience, when we see people fighting over property, over estates, almost always the sale of the family home goes without a hitch. But where the tension can arise is the sale of the cottage.  And that’s because often the younger generation has grown up in the environment and they’ve created fond memories and so forth, so that really at the end of the day, this isn’t just a piece of real estate, this isn’t just a GIC, this is part of their past and can attract a very different emotions.

Suzana Popovic-Montag: I think just to add to that there’s also the fact that recently there’s been such an escalation in property values.  And when you’ve got a piece of property in a very good area, that might mean that suddenly there’s much more than just an emotional attachment.  But there might also be a financial consequence to this property as well.

Ian Hull: And for sure.  We’ve seen lots of files where the estate is, a substantial portion of the estate is actually the recreational property.

Suzana Popovic-Montag: And what this will result in is potentially having a very onerous tax liability that can arise for your children or your family.  And, you know, it’s something that is just a reality and we’ve got to be able to plan for it and see what we can do to protect against being, you know, surprised at the end of the day.

Ian Hull: Well that’s right.  This whole high cost of buying out a family member who doesn’t want to own the property or, or (…) and allow it to be passed to another generation. We talked about in previous podcasts the use of interesting estate planning tools like insurance products and things like that. But it is a really live issue. So that overall, the costs of the buyout can in fact result in or unfortunately can leave for the sale of the property.  And that in and of itself may not be what you ever intended to happen in the estate plan.

Suzana Popovic-Montag: I think, Ian, it might be helpful to sort of discuss some of the strategies that we can think of or suggest to people for preserving the actual vacation property, the cottage property for the next generation, and some of the choices that might be available to individuals who are dealing with these kinds of assets.

Ian Hull: Okay, well then let’s talk about things like discussion with your…we’ve used…we’ve certainly talked about the theme of discussions with your heirs.  That’s one part of it.

Suzana Popovic-Montag: And I think we should maybe address specifically what, you know, the capital gains taxes can arise in these situations, and how we might have some strategies for considering how to maximize the use of products to minimize the insurance hit…or sorry, not the insurance…the tax hit at the end of the day.

Ian Hull: And certainly that managing of the taxes is so fundamental.  And then talk about transfers on death by way of, you know, joint tenancy, or a gift in a Will is another option or transfers prior to death by way of what we call inter vivos or pre-death transfers to one of the children who actually want the property and can afford to buy it out. I use that example because I had lunch the other day with a good friend of mine who’s got five kids in his family.  And sure enough, one of the kids bought out the grandmother’s property.  And adjacent to that was their family cottage where they grew up, his mother, the sister, obviously the daughter of the mother. And I asked him, I said, you know, does it bother that you’re brother just bought your grandmother’s cottage?  And she said no, you know, it doesn’t bother me because she said ultimately I think I’ll probably try to buy my mother’s cottage. And I don’t know that my other siblings want that cottage either because they all have their own cottages now, so it may not even be an issue. But I sort of had to test the waters and see if she was upset by that.  And I was pleased to see that that transition is working very well.

Suzana Popovic-Montag: You’d be surprised how these things can work out with a little bit of advance planning and obviously, you know, the frank discussion amongst the individuals who are affected by it.

Ian Hull: So finally, what we want to talk about is how to create an agreement that works for everyone. And you can’t just create these things with paper.  You have to have done your homework.  You have to have had your discussions.  You have to have done your work managing, looking at managing the taxes, managing the emotional issues on the transfer and so forth.  And talk about the different legal options you have pre-death, post-death, to transfer the cottage.

Suzana Popovic-Montag: If we turn, Ian, to, you know, the first step that we talked about, you know, the discussion with the family members. When you want to deal with these property transfers, it really is key to really talk to the individuals who are going to be affected by it. Because you might have all these preconceived perceptions of what you think someone’s going to think or feel, but that may not actually be the case.

Ian Hull: Because there’s a chance that they may not even want the vacation property, for instance.

Suzana Popovic-Montag: And so your adult children may actually just enjoy using it now but not really have an intention or an expectation at the end of the day that that property is there for them.

Ian Hull: And another option is too that some…your children may not be actually interested in sharing the cottage, in going through sort of a co-ownership arrangement.  And you won’t know this unless you’re asked.  And certainly the co-ownership arrangements are much more fragile once you’re gone, I can tell you that.  Because often the parents, who have held the cottage originally, are the glue that hold those co-ownership agreements, even with adult siblings, together.

Suzana Popovic-Montag: And so as an alternative to that co-ownership arrangement, you might just want to look to leave an equal share of the value of the vacation property to each of your children.

Ian Hull: But if someone wants to keep it and some want to sell it, then the ones that want to keep it may not have the cash of the others.  But you can start to do the math on this and really see if there are creative solutions that the children can come up with after you’ve passed away.  As long as you’ve divided it equally and given everybody sort of enough economic strength to consider their options.

Suzana Popovic-Montag: And that’s really important because you wanna protect against the possibility that, notwithstanding all of the planning you’ve done, your wishes might still be overturned and the property may still have to get sold in any event.

Ian Hull: So, if the plan is that a number of family members will share the vacation property, a mediator is also a useful resource in coming up with the sharing agreement. With the help of a good solicitor as well, these are sort of tools that you can consider in developing this shared ownership arrangement.

Suzana Popovic-Montag: And I know one of the things that we’ve done, Ian, recently in one of our past experiences is we’ve actually used an anonymous process by which we’ve canvassed people in terms of what they would like to happen with the vacation property. And that’s been good in terms of allowing everyone to honestly say what they do or don’t want to happen, and yet not have anyone, you know, stigmatized with that view being attributed directly to them.

Ian Hull: So let’s think about the mechanics of that. How, and I know we’ve done this before, but let’s explain just briefly what…how we’ve sought out that anonymous sort of input. And one of the ways we’ve done it, quite frankly, is through the family meeting process, where we know it’s an issue and we allow in a caucus and not in an open session, discussion about how each one of the individual players wants to deal with the property and not then come back in, and then come back and sort of somehow dovetail to all the various positions and all the various wishes.

Suzana Popovic-Montag:   And that’s made it more easy for individuals to be honest and to get, you know, their positions out there without having someone, you know, staring them across the table and attributing, you know, different thoughts to that desire. And it makes it more easy for people to be comfortable and honest with what they really want to happen.

Ian Hull: And so…alright, we talked early about, you know, briefly about what you need to know about capital gains.  And this is, you know, it’s a Canadian issue.  Certainly in the US, they deal with the tax situation much differently. But across Canada, the capital gains tax on recreational properties can be, as we’ve said earlier, an overwhelming issue. So why don’t we, for our next podcast, begin to sort of analyze in some more detail what we need to know about the capital gains taxes and work through some of this process.

Suzana Popovic-Montag: That’s a great suggestion, Ian, particularly given that, you know, apart from the actual family dynamics of who’s going to get the cottage at the end of the day; this, I would say, is the most…second most important issue that people want to consider.

Ian Hull: Alright, well that’s great.  Thanks so much Suzana.

Suzana Popovic-Montag: Thanks to you Ian.

You’ve been listening to Hull on Estate and Succession Planning with 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 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 Hull On podcasts, or to leave a question or comment, please visit our website at www.hullestatemediation.com.

Our theme music is UpTempo14 by Gary and is courtesy of the Podsafe Music Network.

READ THE TRANSCRIBED PODCAST

During Hull on Estate and Succession Planning Episode 39, we continued our discussion on the Family Conference, focusing on the actions to be taken in regards to non-participating family members. We also discussed the importance of documentation and defined will challenges.

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

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

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

All the very best,

Suzana. 

The case of Webster v. Webster Estate , a recent decision of the Ontario Superior Court of Justice, attracted notoriety in the media, as the Webster family is well known in Montreal and the world of philanthropy. The case is interesting to read given the amount of money at stake and the family dynamics. The case also deals with limitation periods in the estate context. Today, I will discuss the facts. Tomorrow, I will discuss the law and the court’s decision.

Mr. Webster’s estate was valued at around $24 million. Mrs. Webster was provided for under the terms of the Will, but the bulk of the Estate was left to the Eric T. Webster Foundation. Unfortunately, since the death of her husband, Mrs. Webster developed Alzheimer’s disease, which had progressed to the point where she was unable to testify as a witness in the proceeding.

The Will appointed four Estate Trustees of the Estate including Mrs. Webster and her son by her first marriage, who was also Mrs. Webster’s legal representative and the step-son of Mr. Webster.
In Ontario, when a spouse dies with a Will, the surviving spouse may elect to take the benefits bestowed under the Will, or seek the equalization of net family property from the estate as calculated under the provisions of the Family Law Act.

An application for an equalization payment must be brought within six months of the first spouse’s death, otherwise the surviving spouse is deemed to have chosen to take under the Will.

Mrs. Webster did not file an election within the prescribed six months. This meant that she could no longer elect to equalize their net family property. However, Mrs. Webster and her son both alleged that they were unaware of any right to elect to receive an equalization payment under the Family Law Act in the six months following Mr. Webster’s death. Mrs. Webster therefore sought an order extending the time within which she could file an election to make an equalization claim from the Estate of her deceased husband.

Unfortunately for Mrs. Webster, and her son who ultimately spearheaded the proceeding, they did not receive a sympathetic hearing from the court. Tomorrow I will consider the law and the court’s decision. Stay tuned.

Have a great day.

Justin de Vries

READ THE TRANSCRIBED PODCAST HERE

During Hull on Estate and Succession Planning Podcast #35, we discussed:

• Special needs beneficiaries;
• What the definition of a special needs beneficiary is;
• The use of trusts for special needs beneficiaries; and
• The proper planning for special needs beneficiaries and what happens to the assets and the trust when the special needs beneficiary dies.