Estate Planning
Toronto Estate Law Blog 
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Attention to Detail: An Expensive Lesson Learned
Posted on November 20, 2009In a decision earlier this year, Justice Harris in Binkley Estate v. Lang, (2009) 50 E.T.R. (3d) 44, looked at the construction of wills and fundamental issues giving effect to the testatrix's intent. The decision involved a 92 year old testator who was both capable and in control of her affairs...
Cost Decisions and Estate Litigation - Hull on Estates #188
Posted on November 19, 2009Listen to: Cost Decisions and Estate Litigation - Hull on Estates #188 This week on Hull on Estates, David Smith and Nadia Harasymowycz discuss cost decisions and estate litigation. If you have any comments, send us an email at hull.lawyers@gmail...
Are you Mom's Favourite?
Posted on November 19, 2009In Estate Litigation we are faced every day with feuding families. Is the fight avoidable or inevitable? For those of you with siblings, I'm sure at some point in your lifetime you've gotten upset and yelled those words which for some reason really hit home: "Mom always liked you best"...
Avatars Beware - What Happens to Your Online Life When You Die?
Posted on November 18, 2009I'm sure there are a few people who are holding out and refuse to join facebook, or some other virtual world. Yet for the majority, checking online accounts is merely part of an everyday routine. What happens when you are no longer around to check these accounts? This may seem like a trivial factor when dealing with the loss of a loved one, but seeing posts on a facebook wall belonging to a recently deceased family member can be extremely painful...
Power of Attorney - Part 6 - Hull on Estates and Succession Planning #187
Posted on November 18, 2009Listen to: Power of Attorney - Part 6 - Hull on Estates and Succession Planning #187 This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the importance of confidentiality when acting as Power of Attorney. If you have any comments, send us an email at hullandhull@gmail...
Immortality - Closer Than We Think?
Posted on November 17, 2009A recent article in the Toronto Star discusses the possibility of immortality. Not just a distant possibility, but a real possibility within our lifetimes. It even suggests that the first 1000 year olds are almost certainly already alive. According to the article, there is the possibility that we would simply replace our bodies as they deteriorate...
The 12th Annual Estates and Trusts Summit
Posted on November 16, 2009The 12th Annual Estates & Trusts Summit, took place late last week on November 12th and 13th, 2009 in Toronto. This program, organized by the Law Society of Upper Canada, presented a variety of issues which are of interest to anyone practicing in the Estates and Trusts field...
Philanthopy and Legacy
Posted on November 13, 2009The creating of a legacy is not just about the size of an estate left behind by a testator. A publication of Imagine Canada entitled Philanthropic Success Stories details the nature of philanthropy and gives all of us pause to consider how best to create a lasting legacy...
A Pair of Estate Law Musings
Posted on November 12, 2009In considering a topic for today's blogs, I had a number of competing ideas and decided that the best approach would be just to muse on a couple of issues that I have had pause to consider over the past couple of weeks. On a Motion for Court Approval of Minutes of Settlement under Rule 7 of the Rules of Civil Procedure, the written consent of any minor over the age of sixteen is required "unless a judge orders otherwise...
Remembrance Day - A Different Angle
Posted on November 11, 2009Sunnybrook Health Sciences Centre houses Canada's largest Veteran's care facility, offering care to a current population of 500 vets, a few from the Korean War, but the majority of whom are from World War II. Residents are housed in two wings: the Kilgour Wing which promotes independent living, and the George Hees Wing with supportive care...
Medical Records Protocol
Posted on November 10, 2009Medical Records are one of the most important categories of evidence available to the estate litigator. In most cases, medical records from health care providers who treated a testator in and about the time a Will was made will be seen as the most persuasive evidence available because the author of such records will be seen as both (i) possessing some degree of expertise related to the assessment of capacity and (ii) exhibiting complete objectivity as a witness (unlike the family members who may be contesting capacity)...
Negligence Regarding Estates and Wills - Hull on Estates #187
Posted on November 10, 2009Listen to: Negligence Regarding Estates and Wills - Hull on Estates #187 This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss negligence in the area of solicitors working with estates and Wills. If you have any comments, send us an email at hull...
Power of Attorney - Part 5 - Hull on Estates and Succession Planning #186
Posted on November 10, 2009Listen to: Power of Attorney - Part 5 - Hull on Estates and Succession Planning #186 This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag continue their conversation regarding compensation for attorneys and guardians of personal care...
Toronto Estate Law Blog: Tips and Tools
Posted on November 09, 2009Did you know that there are tools available on our website that will allow you to get more mileage out of our blogs and podcasts? EMAIL THIS - allows you to email the blog to a third party, for example, a client or colleague SHARE LINK - allows you to share the blog link using various social media tools such as Facebook, LinkedIn, Twitter etc...
Ontario's Unforgiving Formal Execution Requirements for Wills
Posted on November 06, 2009The formal requirements for execution of a will, or any testamentary instrument in Ontario, are governed by Part I of the Succession Law Reform Act ("SLRA"). The definition of "will" in s. 1 of the SLRA includes a testament, codicil, will, or other testamentary disposition...
Terminology in Civil Proceedings - Hull on Estates #186
Posted on November 05, 2009Listen to: Terminology in Civil Proceedings - Hull on Estates #186 This week on Hull on Estates, Paul Trudelle and Christopher Graham discuss some of the words and terminology commonly used in civil proceedings. If you have any comments, send us an email at hull...
Cost Award for Successful Motion for Summary Judgment
Posted on November 04, 2009Successful motions for summary judgment are rare occurrences, and any guidance on costs awards is welcome. Justice Mesbur's costs endorsement in the personal injury case Asmassu v. John (2009), 2009 CanLII 58579 (On S...
Power of Attorney - Part 4 - Hull on Estates and Succession Planning #185
Posted on November 03, 2009Listen to: Power of Attorney - Part 4 - Hull on Estates and Succession Planning #185 This week on Hull on Estates and Succession Planning, Ian Hull discusses the difficult topic of arranging payment for the Power of Attorney. If you have any comments, send us an email at hullandhull@gmail...
Euthanasia Bill C-384 Faces First Reading in Parliament
Posted on November 03, 2009A private member's bill that would decriminalize medical practitioners assisting with suicide is about to get its first reading in the House of Commons. Bill C-384 would amend sections 222 (homicide) and 241 (assisted-suicide) of the Criminal Code...
Two More Serious Charges Dropped Against Accused Shopkeeper
Posted on November 03, 2009Prosecutors have dropped the charges of kidnapping and carrying a concealed weapon against the shopkeeper accused David Chen. Readers will remember Mr. Chen as Toronto's Chinatown shopkeeper who arrested a shoplifter, with the help of two employees, then got charged himself...
Insane Delusions and Testamentary Capacity
Posted on November 02, 2009A testator who suffers from "insane delusions" may not have testamentary capacity. The case law provides numerous definitions and tests for insane delusions, but there is no single dedicated leading case. Perhaps the best way to grasp this principle is by starting with the classic statement from Banks v...
Swine Flu and Young Adults - Whose Decision is it to Vaccinate?
Posted on October 30, 2009It can be easy to tell your children what to do ... when they're still young. Its not quite so easy as they grow up and leave the nest - both from a practical and legal perspective. Have you thought about whether your university-aged child is fully prepared in the event of a medical emergency? Can you, as a parent, get access to medical information on behalf of your child who is over the age of majority? This concern, particularly in the context of mounting fears over the spread of the swine flu (H1N1) virus, was considered recently here, and is worth some discussion in the context of our own provincial laws...
12th Annual Estates & Trusts Summit
Posted on October 29, 2009Mark your calendars now for the upcoming 12th Annual Estates & Trusts Summit, scheduled for November 12th and 13th, 2009 in Toronto. This program, organized by the Law Society of Upper Canada, has been described as "vital for anyone carrying on an estates practice"...
The Best of Both Worlds
Posted on October 28, 2009A little knowledge goes a long way. In the context of insurance policies and your overall estate plan, understanding the nuances of a testamentary insurance trust can provide enormous benefits down the road. Simply taking out insurance on your life - or even naming a specific beneficiary other than your "estate", does not by itself capitalize on the various benefits that may be available by the creation of testamentary insurance trust...
E-Mail Trumps "Snail Mail" - A Welcome Initiative
Posted on October 27, 2009Last week, Mr. Justice Brown released an Endorsement involving an Application for Confirming of Resealing of Appointment, in which he directed the Estates Registrar to offer to Applicants for Certificates of Appointment the option of communicating with the Estates Office by e-mail...
Unworthy to inherit - Hull on Estates #185
Posted on October 27, 2009Listen to: Unworthy to Inherit - Hull on Estates #185 This week on Hull on Estates, Bianca La Neve and Natalia Angelini discuss a recent application to declare a Beneficiary unworthy on inheriting an estate. If you have any comments, send us an email at hull...
Power of Attorney - Part 3 - Hull on Estates and Succession Planning #184
Posted on October 27, 2009Listen to: Power of Attorney - Part 3 - Hull on Estates and Succession Planning #184 This week on Hull on Estates and Succession Planning, Ian Hull focuses on the importance of capacity assessments. If you have any comments, send us an email at hullandhull@gmail...
Who Says Blood is Thicker Than Water?
Posted on October 26, 2009An Italian Prince and Princess are squabbling over their late mother's inheritance, which includes an extensive art collection with works by Caravaggio and Raphael, and a palace in Rome. The sister (Princess Gesine) has asked an Italian Court to exclude her brother's (Prince Jonathan) children as heirs because his children were conceived with surrogate mothers and she does not "approve" of his homosexual lifestyle...
Selecting an Estate Trustee - Hull on Estates #184
Posted on October 23, 2009Listen to: Selecting an Estate Trustee - Hull on Estates #184 This week on Hull on Estates, Paul Trudelle and Sarah Fitzpatrick discuss considerations relevant to the testator's selection of an Estate Trustee when preparing a Will. If you have any comments, send us an email at hull...
The Conundrum of Competence
Posted on October 23, 2009The Rules of Civil Procedure are the the Barrister's Bible. While we may not keep them on our bedside tables, they can be found on every good litigator's desk as well as scattered throughout the office in strategic locations. As lawyers, we generally have good memories for anything logical or analytical – case names can be remarkably pulled out of a hat at a moment's notice...
Client (and lawyer) Satisfaction
Posted on October 22, 2009Client satisfaction is a tricky maze to navigate. In some ways, we are most successful as lawyers when clients on both sides are equally dissatisfied. The object of the game is to settle on a solution that is fair to all concerned. This necessarily means that no one side is going to get the key to the city and the pot of gold at the end of the rainbow...
Mentoring: An Offer You Can't (or shouldn't) Refuse
Posted on October 21, 2009On Monday I wrote about the importance of mentoring. Today I'd like to illustrate. A November 2008 report by former Superior Court Chief Justice Patrick LeSage and University of Toronto law professor (now Superior Court Justice) Michael Code questioned the adequacy of sanctions for courtroom misconduct...
Limitation Periods and the Power of Fraudulent Concealment
Posted on October 20, 2009Litigation lawyers live in fear and sober respect of the limitation period. We all know that missing a statutory limitation period can be the kiss of death. Given the right circumstances, however, there is one light in the dark that can overcome the shadow of both statutory limitations and common law laches arguments...
Lexpert Zenith Awards
Posted on October 19, 2009Last week Lexpert held the inaugural event for its Zenith Awards Celebrating Leading Women Lawyers. In a room sparkling with cool acrylic chairs and brilliant crystal chandeliers, brighter still shone the accomplishments of the 23 extraordinary women who were honoured for their outstanding achievement in the legal profession...
Peer into the Crystal Ball: Business Opportunities in an Aging World
Posted on October 16, 2009Whether it's technology or tv trends, Japan seems to be light years ahead. And we play catch-up (ok, not so with the stupid game shows). Japan's median age is 43.5, Canada's is 39.1. But since Japanese live longer (life expectancy of 82...
Revival or Republication?
Posted on October 15, 2009The concept of reviving a revoked will seems clear enough. But what is the difference between a revival and a republication, and why does it matter? Revival means reactivating a revoked will. Note that section 19(1) of Ontario's Succession Law Reform Act requires a revival to be in accordance with the provisions of Part I of the Act...
Motion to Secure Assets Denied
Posted on October 14, 2009Rule 45 of Ontario's Rules of Civil Procedure contains mechanisms by which a party can freeze assets that are in issue or relevant to the proceeding. However, this should be done prior to the close of pleadings because once the matter is set down for trial, Rule 48...
Undue Influence - Hull on Estates #183
Posted on October 13, 2009Listen to: Undue Influence - Hull on Estates #183 This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag follow up a discussion about undue influence that took place at Hull & Hull's Breakfast Series on Sept. 24th, 2009. If you have any comments, send us an email at hull...
Waiver of Settlement Privilege
Posted on October 13, 2009Settlement privilege excludes communications made in furtherance of settlement from the record. Settlement is a fundamental component of our trial system for trite reasons. Virtually every litigation proceeding has a parallel settlement component that the court does not and usually ought not to see, until after the main proceeding...
Verdict in Astor Estate Criminal Case
Posted on October 09, 2009The 85 year old son of New York socialite, Brooke Astor was convicted yesterday of grand larceny and scheming to fraud. For a background to the proceedings, click here and here. After a 5 month trial and 12 days of jury deliberations, Anthony D. Marshall was found guilty of 14 charges, including giving himself a pay-rise of $1 million for managing his mother's finances...
Robes? Check. Tabs? Check. Joystick? Huh?
Posted on October 08, 2009Off with the cufflinks. Roll up your sleeves. Grab your joystick and get ready for what may be the ultimate way for the estates and trusts practitioner to spend their lunch hour: Nintendo DS Safecracker. As an expert safecracker, you have been hired by the wealthy family of a recently deceased billionaire in order to search for the Last Will and Testament of their late relative, oil tycoon Duncan W...
Ted Williams' Cryonics Saga Continues
Posted on October 07, 2009Baseball Hall of Famer, Ted Williams is the news again as a former employee of the cryonics facility in which Williams' body is preserved is releasing a book detailing alleged mistreatment of Williams' remains. By way of background, Williams died in 2002...
Power of Attorney - Part 2 - Hull on Estates and Succession Planning #183
Posted on October 06, 2009This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag discuss the basic principles when there is a dispute over power of attorney in a Will. If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog...
Life Expectancy Trends Means More Centenarians
Posted on October 06, 2009BBC News recently commented on a study published in the Lancet journal that shows more than half the babies now born in the UK and other wealthy nations will live to be 100 years old. The data from the study indicates that these extra years would be spent with less serious disabilities for the elderly...
Supreme Court: UK Edition
Posted on October 05, 2009October 1, 2009 was a historical day in U.K.'s judicial history, as the Supreme Court of the United Kingdom was established. Prior to last week, the House of Lords held the judicial function as the court of last resort. A Committee of legally qualified lords who sat in the House of Lords, known as the Law Lords, heard final appeals of court decisions...
Power of Attorney - Part 1 - Hull on Estates and Succession Planning #182
Posted on October 02, 2009Listen to: Power of Attorney - Part 1 - Hull on Estates and Succession Planning #182 This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag introduce their next mini-series which will discuss engaging with litigation regarding power of attorney...
Dying With Dignity
Posted on October 02, 2009In a captivating article authored by Kent Sepkowitz, an infectious-disease specialist at a Cancer Center in New York City, he recounts the practical difficulties when someone dies at home - doing it yourself can be thorny and chaotic without the administrative help of Hospitals...
Death of a Legal Visionary
Posted on October 01, 2009Hugh Lawford, co-founder of Quicklaw - the world's first online legal database - recently passed away. As noted in Mr. Lawford's obituary, he created the project at Queen's University in 1967 when he realized that legal documents could be computerized and made available in a database...
Wills Can Use Religious Tests
Posted on September 30, 2009Thanks for reading, Natalia Angelini The Chicago Tribune provides an interesting commentary on a recent decision of the Illinois Supreme Court, which ruled that a Jewish couple could legally disinherit any grandchildren who married outside their faith, as long as the method of doing so did not encourage divorce...
Illinois Wills Can Use Religious Tests
Posted on September 30, 2009The Chicago Tribune provides an interesting commentary on a recent decision of the Illinois Supreme Court, which ruled that a Jewish couple could legally disinherit any grandchildren who married outside their faith, as long as the method of doing so did not encourage divorce...
Contempt Motions - Hull on Estates #181
Posted on September 29, 2009Listen to: Contempt Motions - Hull on Estates #181 This week on Hull on Estates, Sharon Davis and Craig Vander Zee discuss contempt motions, specifically in relation to the passing of accounts. If you have any comments, send us an email at hull.lawyers@gmail...
Estate, Trust and Capacity Law Breakfast Series
Posted on September 29, 2009Hull & Hull LLP hosted its quarterly breakfast series on September 24, 2009. Megan Connolly started off the day with a very informative talk on charitable gifts, with a focus on when a charitable beneficiary can not be identified or cannot be found...
Cleanup in Aisle Two
Posted on September 28, 2009Having recently posted a blog on bad neighbours, you can well imagine my shock when I rounded the corner this week and saw what appeared to be an OPP paddywagon parked in front of a house on a fairly white bread, middle class street in Nothing-Ever-Happens-Here-ville, Ontario...
Capacity Litigation: A Clarification on Costs
Posted on September 25, 2009A September 8, 2009 endorsement of Justice D.M. Brown helps to clarify the costs of capacity litigation. Fiacco v. Lombardi, 2009 CanLII 46170 (ON S.C.) involves four siblings who disputed the management of their mother's property. She executed a continuing power of attorney for property appointing all four of her children as her attorneys to act jointly...
Alzheimer's Advance: 115 Million by 2050
Posted on September 24, 2009We have reported on Alzheimer's frequently in our blogs. A World Alzheimer's Report released this week is another reminder of the widespread implications of the disease. In Canada, about one in every 11 people over the age of 65 is living with Alzheimer's or a related dementia...
Future Changes to U.S. Estate Tax?
Posted on September 23, 2009Yesterday I wrote about Edward Kennedy – I began to wonder about the tax implications on his estate. Assuming he held $75 million in assets, his estate would have been taxed at a rate of 45% and the bill owing would be $33,750,000. But this is unlikely because much of his wealth was held by trusts which, in Ontario, are separate taxable entities...
Nurturing Legacies: Edward M. Kennedy
Posted on September 22, 2009The death of Edward M. Kennedy on August 25, 2009 marked the end of era. The Lion of the Senate received much praise for his 47-year contribution to American politics. In his memoir – True Compass – 'Teddy' provides a posthumous review of his life and of his famous family...
Will Clauses - Hull on Estates #180
Posted on September 22, 2009Listen to: Will Clauses - Hull on Estates #180 This week Bianca La Neve and Sarah Fitzpatrick discuss lesser known Will clauses to consider when preparing a Will. If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog...
On the Big Screen: Challenging Dr. Barnes' Wishes
Posted on September 21, 2009The Toronto International Film Festival brought stars to town and brought an estate issue into focus. The Art of the Steal received accolades as a 'thrilling whodunit' about the world-renowned Barnes art collection, valued in the 'billions and billions...
Obviously Not Taking Advantage of the US "Cash for Clunkers" Program
Posted on September 18, 2009Lonnie Holloway of Saluda, South Carolina was recently buried sitting upright in the front seat of his 1973 Pontiac Catalina. According to the New York Times report (there is a video link, too), the 90 year old, described by a cousin as a 'stylin' and profilin'' man, had always said that he had wanted to be buried that way...
Chai Tikvah Foundation
Posted on September 17, 2009On Tuesday, I spoke to a wonderful group at the Chai Tikvah Foundation on the topic of estate planning and providing for a disabled beneficiary. 'Chai Tikvah' means 'life' and 'hope'. The Chai Tikvah Foundation provides housing, support and education to psychiatrically challenged adults in Jewish residential settings to enable them to lead more productive lives, and to help them integrate into the community...
Disabled Beneficiaries - Hull on Estates and Succession Planning - #181
Posted on September 17, 2009Listen to: Disabled Beneficiaries - Hull on Estates and Succession Planning #181 This week on Hull on Estates and Succession Planning, Paul Trudelle and Jordin Atin discuss the considerations that must be taken into account with disabled beneficiaries...
Assuming the Obligation to Dispose of Remains
Posted on September 16, 2009In October 2008, I spoke at the Hull and Hull Breakfast Seminar on the topic of obligations with respect to disposing of the deceased's remains, as well as other issues that arise immediately upon death. (See my paper, here.) In Lajhner v. Banoub, [2009] O...
Lord Beaverbrook's Legacy
Posted on September 15, 2009A lengthy battle over ownership of 85 valuable works of art has ended recently, with a Canadian art gallery being allowed to keep the majority of the works. As reported in the Toronto Star and the National Post, an appeal from a 2007 arbitrator's decision (former Supreme Court of Canada Justice Peter Cory) was dismissed...
Executor Removed - No Replacement Appointed
Posted on September 14, 2009In a novel decision of the Ontario Superior Court of Justice, the court removed Estate Trustees who no longer wished to act in that role. No one else consented to act. What is novel is that no replacement Estate Trustee was appointed. In the 2009 case of Evans v...
Tales from the Crypt
Posted on September 11, 2009I conclude my blog week by writing about the late Michael Jackson who was finally laid to rest on September 3, 2009. Ten long weeks after his death, Michael Jackson's coffin was placed in a mausoleum in the Forest Lawn Memorial Park, which is located outside of Los Angeles...
The Top 10 Issues To Consider When Planning Your Estate
Posted on September 10, 2009Planning your estate feels a lot like preparing for your taxes. It takes time and it's something the average person hates to turn their mind to. Nevertheless, a solid estate plan is, without a doubt, the best defence against the potential threats to hard earned wealth posed by disgruntled family members or tax authorities...
Preparation is Key for our Disabled Elders
Posted on September 09, 2009It should come as no surprise that we live in an aging society. As our society continues to grow old, family members should be concerned about their loved ones who live with disabilities. I recently read an article (found here) that describes the obstacles that our law enforcement and emergency professionals are confronted with when responding to an emergency involving a disabled or elderly person...
Asset Management - Hull on Estates #179
Posted on September 09, 2009Listen to: Asset Management - Hull on Estates #179 This week on Hull on Estates, David Smith and Christopher Graham discuss the general principles of asset management for various types of fiduciaries. If you have any comments, send us an email at hull...
Rule 74.15 - Orders for Assistance
Posted on September 08, 2009After a long and relaxing weekend, most of us now return to work geared to face the challenges of our week. I start my blog by discussing the recent issue of the Probater. The Probater is a quarterly newsletter that is prepared by the lawyers at Hull & Hull LLP and is provided to the community as an information service...
The Emotional Value of Assets - Hull on Estates and Succession Planning #180
Posted on September 08, 2009Listen to: The Emotional Value of Assets - Hull on Estates and Succession Planning #180 This week on Hull on Estates and Succession Planning, Ian Hull and Jordan Atin discuss the best ways to evaluate a Will based on the emotional value of assets rather than the fixed value...
The Business of Death: Funeral Industry Meeting the Needs of Different Communities
Posted on September 04, 2009Ontario now has its first eco-friendly burial ground. Read Sarah Hyndman Patrick's previous blog on green burials for some more insight on this growing trend. Cobourg Union Cemetery caters to the eco-conscious. They insure that nothing goes into the ground that is not harmless and biodegradable...
Animal Rights Groups Object to Trustees' Distribution of Leona Helmsley's Charitable Trust
Posted on September 03, 2009The Leona Hemsley's estate saga continues. Last month, three animal protection groups filed a petition requesting that the court appeal a previous decision that allowed the trustees of Helmsley's estate sole discretion to determine how charitable trust funds would be distributed...
Common Law Spouse of Popular Author questions Sweden's inheritance laws
Posted on September 02, 2009I recently finished reading The Girl with the Dragon Tattoo by Swedish author, Stieg Larsson. Larsson is one the world's best selling authors, having sold 20 million books worldwide. He is currently on both the hardcover and paperback fiction bestsellers lists for the Globe and Mail and the New York Times...
The Family Law Act - Hull on Estates #178
Posted on September 02, 2009Listen to: The Family Law Act - Hull on Estates #178 This week on Hull on Estates Paul Trudelle and Sarah Fitzpatrick discuss the Family Law Act and the elections of equalizations under the Act. If you have any comments, send us an email at hull...
The Price for Spending Eternity with Marilyn Monroe
Posted on September 01, 2009Earlier this month, Elsie Poncher posted on eBay her late husband's crypt for sale. The unique feature about the crypt is its location directly above the crypt of Hollywood icon, Marilyn Monroe in Westwood Village Memorial Park cemetery. Mrs...
Lost Wills - Part 2 - Hull on Estates and Succession Planning #179
Posted on September 01, 2009Listen to: Lost Wills - Part 2 - Hull on Estates and Succession Planning #179 This week on Hull on Estates and Succession Planning, Ian Hull and Jordan Atin continue their discussion about the importance of Wills and the emotional nature of evaluating the assets of an estate...
Palliative Care - An Overview
Posted on August 31, 2009Palliative care is a specialized kind of health care for people living with life-threatening illness, usually in the advanced stages. The foremost goal of palliative care is to achieve the highest quality of life (for the patient and their family) in its end stages...
Funeral Industry Update: Doggie Edition
Posted on August 28, 2009As, no doubt, everyone is aware, Wednesday was National Dog Day in the United States. In Atlanta, they celebrated the day with a special groundbreaking ceremony to mark the beginning of the construction of the latest addition to the Deceased Pet Care family...
Investment Advisor Accused of Exploiting Elderly Client
Posted on August 27, 2009The recent decision in TD Waterhouse Canada Inc. (TD Waterhouse Investment Advice) v. Little caught my eye earlier this week. The case did not involve an estate dispute. Rather, it was an action brought by TD Waterhouse seeking repayment of loans it had made to an employee it later terminated...
Oh Ministry of Defence! - You Gotta Lotta 'splainin' to Do!
Posted on August 26, 2009The British Ministry of Defence is in some hot water after apparently losing some of the last will and testaments of soldiers that were killed while deployed in Afghanistan. Despite a 'frantic investigation' by the ministry, the wills of at least four marines are still missing...
Newsman Cronkite's Will Revealed
Posted on August 25, 2009Walter Cronkite's last will and testament has been revealed – and he left his girlfriend out in the cold. Cronkite, the legendary newsman perhaps best known for anchoring the CBS Evening News for almost 20 years, dated Joanna Simon, sister to singer Carly Simon, for the four years prior to his death...
Discussing Your Estate Plans - Hull on Estates #177
Posted on August 25, 2009Listen to: Discussing Your Estate Plans - Hull on Estates #177 This week on Hull on Estates, Sharon Davis and Jordan Atin talk about the importance of discussing your estate plans with your family before you pass away . They relate this to a recent article that Jordan Atin wrote on Michael Jackson's Will...
Lost Wills - Hull on Estates and Succession Planning #178
Posted on August 25, 2009Listen to: Lost Wills - Hull on Estates and Succession Planning #178 This week on Hull on Estates and Succession Planning, Ian Hull and Jordan Atin discuss the difficulties of losing your Will and how to overcome them. If you have any comments, send us an email at hullandhull@gmail...
Traumatic Brain Injury
Posted on August 24, 2009Traumatic Brain Injury (TBI) is defined as sudden damage to the brain, occurring after birth, as a result of an external force (e.g. crash, assault, fall). The effects of TBI are determined by the location and severity of the injury, as well as the age and general health of the individual...
Vacation Preparation - Hull on Estate and Succession Planning #177
Posted on August 24, 2009Listen to: Vacation Preparation - Hull on Estate and Succession Planning #177 This week on Hull on Estate and Succession Planning, Ian Hull and Jordan Atin discuss the importance of having your Will in order before going on vacation. If you have any comments, send us an email at hullandhull@gmail...
Helpful Resource: Basic Tax and GST Guide for Lawyers 2008-2009
Posted on August 21, 2009David M. Sherman's Basic Tax and GST Guide for Lawyers 2008-2009 (Toronto: Carswell, 2008) is a helpful resource for lawyers not specializing in tax law. The section on Wills and Estates (chapter 7) is concise, easy to follow, and the annotations are precise...
Answers to Questions We Never Ask: Revocation by Destruction
Posted on August 20, 2009Q: How is a will actually revoked, other than by marriage or making a new will? A: See section 15 of Ontario's Succession Law Reform Act ("SLRA"), which enumerates revocation events (marriage depending on the will, making a new will, a proper written revocation, and destruction of the will)...
Section 72(1)(e) SLRA: express/written trust instrument is a required element
Posted on August 19, 2009Part V of Ontario's Succession Law Reform Act ("SLRA") establishes a mechanism whereby qualifying dependants can claim support from the estate of a deceased. Section 72 of the SLRA is a deeming provision that includes certain non-estate assets as part of the estate for the purposes of calculating the value of the estate, and allows such assets to be charged ("clawed back") by a support Order made under section 63 of the SLRA...
Admissible Evidence - Hull on Estates #176
Posted on August 19, 2009Listen to: Admissible Evidence - Hull on Estates #176 This week on Hull on Estates, Rick Bickhram and Megan Connolly discuss what types of evidence are admissible throughout the interpretation of a Will. If you have any comments, send us an email at hull...
$14 Billion Estate Including Offshore Trusts, No Will, 9 kids, Multiple Unmarried Spouses, One Wife, etc.
Posted on August 18, 2009Wang Yung-Ching died at the age of 91 in New Jersey without a will (so far). Of course, New Jersey has intestacy laws. But according to the New Jersey's Star-Ledger, Mr. Wang owned a multi-national conglomerate worth around US$7 billion (the basic American Dream story: immigrant founds Formosa Plastics)...
Multiple Attorneys for Personal Care: Too Many Cooks in the Kitchen
Posted on August 17, 2009While employed in management in the assisted living field, I was tasked with the facilitation and implementation of the personal care decisions of my residents. Where the resident was capable, they of course directed their own personal care, including scoping out their vision for advance directives, should the future need arise for these to be considered...
Death is only the Beginning...
Posted on August 14, 2009An article from mental_floss magazine has showcased ten things a body can do after death. My particular favourites are: Get Married! In China, ghost marriages —the practice of setting up deceased relatives with suitable spouses, dead or alive— is on the rise...
Leaving a Legacy
Posted on August 13, 2009A good friend of mine recently reminded me that death is not just about dividing up the spoils (a common theme in estate litigation), but also about remembering the lasting contributions made by a person during their lifetime. I was reminded of this in reading about the recent deaths of two well-known figures, Donald Marshall and Eunice Kennedy Shriver...
Cy Pres Awards and Class Action Settlements
Posted on August 12, 2009Cy pres is the equitable doctrine under which a court interprets a document containing a gift to charity by substituting another charity to reflect as closely as possible the donor's intention. Courts use cy pres when a donor's original charitable purpose cannot be exactly fulfilled...
Elderly Man Loses Right to Manage His Own Money
Posted on August 11, 2009In a recent news item out of Queensland, Australia, a 77-year-old man has failed in his attempt to regain control of his financial affairs. The elderly gentleman had apparently squandered part of his money on hundreds of calls to sex-chat lines...
Tax Issues for Estate Planning - Hull on Estate and Succession Planning #176
Posted on August 11, 2009Listen to: Tax Issues for Estate Planning - Hull on Estate and Succession Planning #176 This week on Hull on Estate and Succession Planning, Ian Hull goes through a summary of considerations for dealing with Canadian tax issues from an estate planning point of view...
Tax Issues - Hull on Estates #175
Posted on August 11, 2009Listen to: Tax Issues - Hull on Estates #175 This week on Hull on Estates, Ian Hull discusses tax issues, specifically those concerning Canadian clients who are leaving the country. If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
Polypharmacy and Seniors
Posted on August 10, 2009Polypharmacy refers to the taking of multiple drugs by a single patient. As more and more drugs are introduced on the market that address the diseases and chronic conditions associated with aging, it is no surprise that it is the elderly who are most affected by polypharmacy...
Choosing Guardians for Children
Posted on August 07, 2009Although one of the perils of running an estate blog over the past month has been (with apologies to CNN) the risk of over-reporting on the estate of Michael Jackson, the media frenzy has nonetheless served to shine a light on certain aspects of estate planning that otherwise go unnoticed...
Another Fresh Perspective on Succession Planning
Posted on August 06, 2009I recently had the opportunity to meet with a gentleman named Franco Lombardo from Vancounver B.C. who has pioneered the concept of "authentic wealth" in the context of succession planning. Franco has written two books: Life After Wealth and Money Motto both of which deal with and elaborate on his core concepts of devising strategies for individuals who want to create a meaningful personal legacy...
Upcoming 'Health Series' of Blogs
Posted on August 06, 2009Hull & Hull LLP will be posting our second 'health series' of blogs starting on Monday August 10th. The series will run every Monday thereafter in the month of August, for a total of four blogs. The following subjects will be featured: Polypharmacy and Seniors Multiple Attorneys for Personal Care Traumatic Brain Injury Palliative Care - an Overview We hope this series proves both useful and informative...
The Ever-Expanding Safety Net
Posted on August 05, 2009The gradual demographic shift to an aging population is causing governments to reevaluate how to ensure that appropriate funding is in place to provide for long-term care. A recent article on the BBC website references the work of a task force commissioned by the British government to consider the feasibility of three different models for the funding of post retirement long term care...
Unjust Enrichment - Hull on Estates #174
Posted on August 05, 2009Listen to: Unjust Enrichment - Hull on Estates #174 This week on Hull on Estates, Diane Vieira and Rick Bickhram discuss a recent decision from Judge Daley regarding unjust enrichment, using the case of Simonin vs. Simonin as a background to explain the issues surrounding unjust enrichment...
Transferring the Family Cottage - Part 7 - Hull on Estate and Succession Planning #175
Posted on August 05, 2009Listen to: Transferring the Family Cottage - Part 7 - Hull on Estates and Succession Planning #175 This week on Hull on Estate and Succession Planning, Ian and Suzana recap their cottage series and discuss the possibilities that may arise with the beneficiaries, such as disinterest in the property or incapacitation...
When "Time of Death" Is Subjective
Posted on August 04, 2009The moment of death is obviously the seminal triggering event in the context of estate and trust law. As but one example, a Will speaks from the moment of death. A recent article in the National Post raises an interesting question regarding when death actually occurs and how it is defined...
The Power of Checklists: In Life and in Practice
Posted on July 31, 2009Everyone knows that you should make a list before going to the grocery store. If you do not, you will inevitably forget some essential basic that was not interesting enough to remember. It will be the very thing you went to the store for in the first place...
Administration Bond Service
Posted on July 30, 2009As previously blogged on by Paul Trudelle, the evidence required for the court to properly consider whether an administration bond should be dispensed with was clearly set out by Brown J. in the Re Henderson case 2008 CanLII 69136. But what if the answer is no and you must post a bond? One option is to go to the Ontario Lawyers Probate Bond Service...
Life Insurance Locator Service
Posted on July 29, 2009Ever wonder if (or wish that) you might be the lucky beneficiary of a hefty life insurance policy left to you by some benevolent benefactor? Well now you can find out if your wishes have come true. A life insurance policy locator service created and maintained by MIB Solutions Inc...
Capacity Assessments - Hull on Estates #173
Posted on July 29, 2009Listen to: Capacity Assessments - Hull on Estates #173 This week on Hull on Estates, Diane Vieira and Jonathan Morse discuss capacity assessments, the requirements for assessors under the Substitute Decisions Act, and who assesses capacity under what circumstances...
Trial Binder, Endorsements/Orders Record & Compendium of Documents - How to Kill Three Birds with One Stone
Posted on July 28, 2009As mentioned in Craig Vander Zee's recent blog on Contested Passing of Accounts, preparedness is the hallmark of success in an estates practice. Responding at a moment's notice with facts, documents and other relevant evidence from your trial binder will show well not only for your client's case but for you as well...
Transferring the Family Cottage - Part 6 - Hull on Estate and Succession Planning #174
Posted on July 28, 2009Listen to: Transferring the Family Cottage - Part 6 - Hull on Estate and Succession Planning #174 This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion about the best practices for transferring the family cottage to the next generation while addressing the issue of defaulting on a trust or contract that was previously agreed upon by all beneficiaries...
FAQs on Wills, Death & Taxes
Posted on July 27, 2009The Ontario Ministry of the Attorney General Website posts answers to frequently asked questions about estates matters like how to find a copy of a deceased person's will and how to calculate the amount of estate administration tax. There is a public database on site at the Toronto Estates Office at 330 University Avenue that contains information on wills deposited with the court for safekeeping or provided through an application for a Certificate of Appointment of Estate Trustee with a Will...
Considering the Admissibility of Extrinsic Evidence on Will Construction Applications
Posted on July 24, 2009Decore Estate, a recent decision from the Court of Queen's Bench of Alberta, explored the issue of the admissibility of extrinsic evidence in a proceeding to determine the appropriate interpretation of a testator's will. The application involved a dispute over the proper construction of the deceased's last will and testament and codicil...
C.L.B. v. J.B. - What Will the Court Consider When Determing Whether to Seal a Court File?
Posted on July 23, 2009A recent decision of C.L.B. v. J.B.addressed when it is appropriate for a court file to be sealed. The case involved two minors who had lost a parent in the 9/11 terrorist attacks and had received victims' compensation. The court ordered that the funds be held in trust and set out a timeline for when the trustees would be required to pass accounts...
A Movement to Bring Funerals Home
Posted on July 22, 2009The New York Times recently featured an article on the growing trend of at home funerals in the United States. A home funeral can involve anything from holding the visitation for a deceased love one at home, to burying the individual in, say, his backyard (with the appropriate permit, of course)...
B.C. Court Rules that Estate Planning Complications are Not a Sufficient Reason to "Unadopt" a Child
Posted on July 21, 2009The Supreme Court of British Columbia recently dismissed an application where the applicant sought to adopt a child he had previously adopted with his common law wife. The adoptive father was actually the biological grandfather of the minor child in question...
The Willis Estate Case - Hull on Estates #172
Posted on July 21, 2009Listen to - The Willis Estate Case - Hull on Estates #172 The Willis Estate Case - Hull on Estates Episode #172 This week on Hull on Estates, Bianca La Neve and Rick Bickhram discuss the recent decision of Justice Brown regarding the Willis Estate case and the issues that can arise during contempt proceedings and appropriate sentencing in the field of estate and trust litigation...
Transferring the Family Cottage - Part 5 - Hull on Estate and Succession Planning #173
Posted on July 21, 2009Listen to - Transferring the Family Cottage - Part 5 - Hull on Estate and Succession Planning This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion of the most efficient methods for transferring the family cottage...
Pachaluck Estate v. DiFebo - a Passing of Accounts Doesn't Come Cheap ... to Anyone
Posted on July 20, 2009The recent decision of Pachaluck Estate v. DiFebo provides a useful example of the costs exposure that parties can face on an application to pass accounts. In this case, a beneficiary had objected to the compensation the estate trustee had taken...
Paul Raymond: Spiv*
Posted on July 17, 2009There is nothing like sex to get someone's attention. The matter of the estate of Paul Raymond was recently brought to my attention – mainly due to the deceased's business undertakings. Britain's Paul Raymond died on March 2, 2008 leaving an estimated estate of 650m pounds...
Contempt of Court Sentencing
Posted on July 16, 2009The recent decision of Brown J. in Re Willis Estate, 2009 CanLII 30681 (Ont. S.C.J.) addresses the issue of an appropriate sentence to impose on an attorney for property who has been found in contempt of a court order requiring him to account for his dealings with his mother's property...
You Be the Judge - Life Insurance Under a Separation Agreement - Part II
Posted on July 15, 2009Yesterday, I set out the fact situation in Turner v. DiDonato (2009), 95 O.R. (3d) 147 (Ont. C.A.). The trial judge decided that Dilia was entitled to the difference between the insurance proceeds that she received and the $100,000 insurance policy that was supposed to be in place...
You Be the Judge - Life Insurance Under a Separation Agreement - Part I
Posted on July 14, 2009Today I will set out a fact situation and let you determine the outcome. Tomorrow I will let you know how the trial judge and Court of Appeal decided the matter. (As observed by a judge in Newmarket recently, being appointed a judge is like going to heaven – all lawyers want to go there, but just not yet...
Transferring the Family Cottage - Part 4 - Hull on Estate and Succession Planning #172
Posted on July 14, 2009Listen to Transferring the Family Cottage -Part 4 This week on Hull on Estate and Succession Planning Ian and Suzana continue their discussion of the transfer of the family cottage. They explore three ways of transferring the cottage on death; 1) Putting the gift of the cottage in your will 2) Testamentary Trust and 3) Outright gifting...
Mutual Wills - Hull on Estates #171
Posted on July 14, 2009Listen to Mutual Wills This week on Hull on Estate and Succession Planning Jonathan Morse and Chris Graham discuss aspects of mutual wills and the doctrine of mutual wills. They look into some interesting cases related to this topic as well advantages and disadvantages of mutual wills...
Creepy or Cool?
Posted on July 13, 2009I'm not sure what to make of this. Coffin Couches is a US company that 'recycles' coffins into couches. The company collects 'used' coffins from funeral homes. Apparently, the coffins are not used for burial due to slight cosmetic inconsistencies, and cannot be resold...
Modern-day Grave Robbing?
Posted on July 10, 2009CNN recently reported disturbing events, whereby employees at a historic cemetery near Chicago allegedly dug up more than 300 graves as part of a conspiracy to resell burial plots to unsuspecting buyers. Reportedly, at least four people are in custody facing a slew of felony charges...
Taking Evidence Out of Court In Lieu of Calling the Witness at Trial
Posted on July 09, 2009Given the nature of estate litigation, a party to the dispute, and/or a witness that is to testify at trial, are at times elderly, in poor health, incapable of testifying or out of the jurisdiction, such that it is appropriate for their evidence to be given out of court in advance of the trial date...
Cost Awards - Not What They Used to Be
Posted on July 08, 2009As noted in one of my earlier blogs, gone are the days where estate litigants almost automatically were awarded their costs out of the estate. The trend in recent years has adopted elements of the loser- pays philosophy, which has long been applied to other types of litigation...
Parties Under Disability - Hull on Estates #170
Posted on July 08, 2009This week on Hull on Estate and Succession Planning Natalia Angelini and Bianca La Neve discuss parties under disability. The look into how they are represented in proceedings and who has the authority to do so. If you have any comments, send us an email at hullandhull@gmail...
Planning Ahead - Transferring the Family Cottage - Hull on Estate and Succession Planning #171
Posted on July 08, 2009Listen to Planning Ahead - Transferring the Family Cottage This week on Hull on Estate and Succession Planning Ian and Suzana look at the more complex solutions to the transfer of a cottage. The discuss the inter vivos transfer - putting the cottage in trust for your children while you are living...
Parties Under Disability - Who Can Advance Their Interests and How Does One Get The Authority To Do So?
Posted on July 07, 2009In estate litigation it is not uncommon for one or more disputing parties to be under disability. Unless the court or a statute provide otherwise, a party under disability must be represented by a litigation guardian (see Rule 7 of the Rules of Civil Procedure, which regulates proceedings by or against parties under disability)...
Testamentary Custody and Guardianship
Posted on July 06, 2009The sudden death of Michael Jackson has sent a shock-wave of sadness across the globe. I expect it will be some time before you can tune in to various media without seeing coverage on it. I find myself drawn in to the discussion, which one of my colleagues also blogged on last week...
Adult Children Making Gains
Posted on July 03, 2009My colleague Natalia Angelini blogged on February 18 of this year about the increasing possibility that independent, adult children may be entitled to dependant support. A 2009 Ontario Bar Association paper by Susan Woodley concluded that moral obligations of deceased parents in Ontario may require them to provide proper and adequate support to their children, spouse and dependants...
Another Reason to Respect Your Elders
Posted on July 02, 2009They bound me with masking tape until I looked like a mummy. It took them quite a while because they ran out of breath. When they loaded me into the car I thought I was a dead man. - James Arnburn, financial adviser and alleged kidnapping victim Having lost their savings to Florida's boom-and-bust property market, and apparently sporting one heckuva grudge, Roland and Willy, ages 74 and 60, respectively, reportedly clobbered their financial adviser, James Arnburn, with a walker, bound him with duct tape, then took him for a long drive in the trunk of their Audi...
News Stories That Impact Estate Litigation - Hull on Estate and Succession Planning #169
Posted on July 02, 2009Listen to News Stories That Impact Estate Litigation This week on Hull on Estates Jonathan Morse and David Smith discuss some big stories that have occurred in the news lately that have potential impact on those who practice estate litigation. They take a look at the death of Michael Jackson and the decision made by the courts in regards to the sentencing of Bernard Madoff...
The Family Property - Part 2 - Hull on Estate and Succession Planning #170
Posted on July 02, 2009Listen to The Family Property - Part 2 This week on Hull on Estate and Succession Planning Ian and Suzana continue their discussion on the family property. They look into two simple options when choosing to manage the transfer of wealth of a cottage - gifting it during your lifetime and selling the property...
Accessing National Memories
Posted on June 30, 2009Tomorrow is July 1st. It makes me think of Hatley, a small village in Quebec's Eastern Townships and its annual Canada Day Celebration. (My wife grew up nearby.) Across Canada, flags fly high and memories abound. If you will allow this segue, memories are often a significant part of estates that are easily overlooked...
The Death of a Legend: Michael Jackson leaves loose ends
Posted on June 29, 2009Many people, including myself, paused on learning of Michael Jackson's death. While I have not searched out his music for several years, his death marks the end of an era. Michael Jackson's music is part of my memory of growing up. I attended his concert in October 1984 at the Canadian National Exhibition in Toronto...
The Contested Passing of Accounts - Part 3 of 3
Posted on June 26, 2009Today's blog is the last in my series this week addressing certain aspects of preparation for trial in a contested passing of accounts. The items discussed this week were certainly not meant to be, nor were they, exhaustive. Preparation necessary for a hearing/trial with narrow issues, few documents, few evidentiary concerns and an uncomplicated Estate will obviously be different than a case with numerous issues, voluminous documents, evidentiary issues and a complicated administration...
The Contested Passing of Accounts (Continued)
Posted on June 25, 2009Today's blog is a continuation of my blogs this week addressing some aspects of preparation for a trial in a contested passing. I briefly touch upon transcripts, the Request to Admit and Witnesses today. It is important in preparing for trial to review the transcripts of the examinations conducted to assist counsel with locating evidence in the transcripts during trial, including admissions and/or inconsistent statements made by a witness at trial, to address the completeness of questions on the examinations, and whether additional discovery is needed before trial...
The Contested Passing of Accounts - Part 1 of 3
Posted on June 24, 2009My blogs over the next three days will relate to certain aspects of preparation for the hearing of a contested passing of accounts. Today's blog will touch upon the parties, the scheduling of the hearing, and the preparation of documents/productions for trial...
OBA Trusts and Estates Section Executive
Posted on June 23, 2009In yesterday's blog, I mentioned that the election of the Ontario Bar Association (OBA), Trusts and Estates Section Executive for the year 2009-2010 was confirmed at the Section's year end dinner on May 28, 2009. Suzana Popovic-Montag is the incoming Chair of the Executive and I happen to be the incoming Vice-Chair...
Taking Evidence Before Trial - Hull on Estates #168
Posted on June 23, 2009Listen to Taking Evidence Before Trial This week on Hull on Estates Bianca La Neve and Natalia Angelini discuss taking evidence before trial. They talk about the procedure for witnesses who may not be available at trial, which involves preserving their evidence beforehand so it is available prior to the trial...
OBA Trusts and Estates Section Year End Dinner
Posted on June 22, 2009The Ontario Bar Association (OBA), Trusts and Estates Section, year end dinner was held on May 28, 2008 at the Gardiner Museum in Toronto. Kimberly Whaley, the Chair of the Section for the past year, brought the past year to a close and the election of the OBA, Trusts and Estates Section Executive for the 2009/2010 year, was confirmed...
This Blog Contains a Secret to Longer Life
Posted on June 19, 2009Actually, reading this blog really will help you live longer. One secret to living longer is to have a "higher purpose", according to researchers at the Rush Alzheimer's Disease Center (which is part of the Rush University Medical Center in Chicago)...
Scrutinizing Evidence in a Will Challenge
Posted on June 18, 2009The recent case of Re Henry (2009) CanLII 12329 (ON S.C.) is an excellent illustration of how a court scrutinizes evidence in a will challenge. In Re Henry, the deceased died on May 28, 2005. Two weeks earlier, on May 12, 2005, he had made a Will designating his second wife as his sole beneficiary...
Pet Trust Statute Watch: Inevitable for Ontario?
Posted on June 17, 2009While the global financial system totters, unemployment soars, government deficits shatter records set during the Cold War era, towns and communities fight for their lives, the global trade system appears threatened, our lifestyle looks to be set formajor changes, it is reassuring to know that trust law marches on...
Knowledge Management - Hull on Estates #167
Posted on June 17, 2009Listen to Knowledge Management This week on Hull on Estates Paul Trudelle and Sharon Davis discuss Knowledge Management; what it is and how it can assist lawyers and clients. If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog...
Calculating compensation for Estate Trustee During Litigation
Posted on June 16, 2009Compensation is a factor in every estates file. The Divisional Court recently confirmed in Church v. Gerlach (2009) Court File No.: DC-07-0038-00 (Div.Ct.) that compensation for an estate trustee during litigation ("ETDL") is determined by the same principles as compensation for executors generally...
Life Is Short But Diamonds Are Forever
Posted on June 15, 2009Beauty from sadness: DNA2Diamonds, LLC is a company that creates personal diamonds using the DNA of a loved one. That can be a spouse, pet, dear friend or even an entire family. The company takes a hair sample and uses it to grow the diamond from the DNA signature carbon in the hair...
A New Twist to Death Planning
Posted on June 12, 2009Death planning now includes options like buying your coffin at your favourite retailer, purchasing jewellery keepsakes that hold a loved one's ashes, and even treating mourners at your funeral to ice cream. For my final blog of the week, I thought that it would be appropriate to discuss Death Planning...
The New Queen of Soho
Posted on June 11, 2009Being immersed in the world of law, we're constantly confronted with upsetting and often depressing stories. It feels good to occasionally resurface to hear about a positive story. In the London Evening Standard, David Cohen writes about the new queen of Soho, a 23 year old, named Fawn James...
Social Media and Being Specific Wrap-up - Hull on Estate and Succession Planning #168
Posted on June 11, 2009This week on Hull on Estate and Succession planning Ian Hull and Suzana Popovic-Montag begin their discussion by relating Star Trek to social media in terms of technology, costs and viewer/reader feedback. They continue on with a wind-up of their Being Specific series and discuss the last stage of how things unfold...
Beware of the Annuity Sharks
Posted on June 10, 2009An article published in The Columbus Dispatch, an Ohio publication, shows us how vulnerable seniors can be to fraud through the purchase of financial products that are technically legal but not in their best interest. An 83 year-old women had her life savings placed in an annuity but was subsequently solicited to cash in her existing policy and buy a new one...
Succession Planning for Lawyers
Posted on June 09, 2009The Ontario Lawyers Gazette recently published a helpful article titled 'Succession Planning Protects You and Your Clients', which reminds licensees of the importance of planning for the future. According to a 2006 survey, 80% of sole practitioners do not have a plan detailing who would service their clients in the event of their death or incapacity...
The Estate Trustee During Litigation - Hull on Estates #166
Posted on June 09, 2009Listen to The Estate Trustee During Litigation This week on Hull on Estates Megan Connolly and Craig Vander Zee discuss the topic of the estate trustee during litigation (ETDL). Their discussion is based off a paper Paul Trudelle prepared and spoke about at the Hull and Hull breakfast series on June 4, 2009...
POA Fraud
Posted on June 08, 2009As an aging society, we are likely to see an increase in issues surrounding abuse of our elderly. Just simply take a look at our recent estate and trust literature and you will notice that there has been an increase in articles about elder law...
Enforceability of Domestic Contracts
Posted on June 05, 2009Pre-nuptial Agreements, Co-habitation Agreements, Marriage Contracts and Separation Agreements can make for added complexity in any estate dispute. Considering the disproportionate rate of estate litigation in families were there have been second marriages (or spousal relationships), it is inevitable that such contracts will continue to impact our practice...
The Decision of Justice Brown - Hull on Estates #165
Posted on June 04, 2009This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss a recent decision of Justice Brown. The case is known as Re Pearsall. The case, which developed out of one exception to the rules, is about jurisdiction. In particular, it has clarified where you can commence an application in the context of estate proceedings...
DNA matters
Posted on June 03, 2009The BBC recently reported on a case in which an actress appealed from a decision of the High Court, seeking CDN$1.6 million from the estate of a 92-year old deceased woman who had left her a mere CDN$5,000 in her estate. The claimant alleged that the deceased had been in a lengthy lesbian relationship with the claimant's mother and treated the claimant as her own daughter...
Not Such a Beautiful Day in the Neighbourhood
Posted on June 03, 2009Our first house together was a rental duplex in High Park. We knew something was awry when we collected the mail from the common mailbox one afternoon and saw that first letter. It was from the Attorney General's office and was addressed to the neighbour who lived upstairs...
Being Specific About Costs - Hull on Estate and Succession Planning #167
Posted on June 03, 2009Listen to Being Specific About Costs This week on Hull on Estate and Succession Planning, Ian and Suzana get into specifics regarding costs. They discuss specific illustrations where motions can arise; both strategic motions and those that can be predicted and look into why costs may be so high...
Is the Door Forever Closed on Substituted Testamentary Disposition?
Posted on June 02, 2009On April 7, 2009, I blogged on the decision of Justice Strathy in Richardson (Estate Trustee of) v. Mew. In that decision, His Honour considered the situation where a deceased's first spouse was unexpectedly the named beneficiary of a life insurance policy owned by the deceased, the second spouse seeking to remedy what she argued to be an unjust situation...
Diagnosis of Alzheimer's Disease: A Leap Forward
Posted on May 31, 2009At present, there is no single diagnostic test for Alzheimer's disease. Instead, the diagnosis is reached when the medical practitioner (e.g. psychiatrist, general practitioner, geriatrician, or neurologist) has eliminated all other possible causes of the symptoms being experienced; an overview of these symptoms is provided in a previous Hull & Hull LLP blog of February 17, 2009...
Death, Taxes and Taxes on Death
Posted on May 28, 2009Ontario's new harmonized sales tax is coming into effect on July 1, 2010. One of its effects will be to impose PST on funeral services: services that have previously been exempted from PST. According to the harmonized sales tax, funeral services will now be taxed at the rate of 13%, up from 5%...
James Brown: The Final Act?
Posted on May 28, 2009James Brown's estate issues have appeared on our blog on a number of occasions: see here, here, here and here. It appears that the matter may now be at an end. On Tuesday, a South Carolina judge approved a settlement that gives nearly half of his estate to a charitable trust, a quarter to his wife and young son, and a quarter to his six adult children, according to an Associated Press report on the Macleans...
Terminating or Varying a Trust - Hull on Estates Episode #164
Posted on May 27, 2009Listen to Terminating or Varying a Trust This week on Hull on Estates, Jonathan Morse and Natalia Angelini discuss trusts; specifically they discuss terminating or varying a trust. They look at an article by Debra Stevens and give their thoughts. If you have any comments, send us an email at hull...
What's the Password?
Posted on May 27, 2009Probably '123456'. No? Try 'password', or some variation of it. Our heads are becoming jammed with passwords. Almost every website service we visit requires a password. A few diverse posts that I have come across have looked at password usage...
Uncertainties in Litigation - Hull on Estate and Succession Planning #166
Posted on May 27, 2009Listen to Uncertainties in Litigation This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the uncertainties in litigation. They look at the great uncertainty of interlocutory (or injunctions, or motions) throughout the process...
An Attorney's Duty to Account
Posted on May 25, 2009An attorney acting under a power of attorney may be required to account to the beneficiaries of the grantor's estate after the death of the grantor. This is the holding in the decision of McAllister Estate v. Hudgin. Megan Connolly blogged on this case here, on the issue of accounting, and here, on the issue of removal of an estate trustee...
Venue for Passing of Accounts Applications
Posted on May 25, 2009In the February 2009 edition of The Probator, I reported on the decision of Brown J. in Re McMichael Estate. There, Brown J. clarified the requirement that an application for a Certificate of Appointment be filed in the court office for the county or district in which the testator was living at the time of death...
The Executor as "Spokesman of the Soul"; Revisiting the Will of Alfred Nobel
Posted on May 22, 2009"I regard large inherited wealth as a misfortune, which merely serves to dull men's faculties. A man who possesses great wealth should, therefore, allow only a small portion to descend to his relatives. Even if he has children, I consider it a mistake to hand over to them considerable sums of money beyond what is necessary for their education...
Rule 39 and Solicitors as Witnesses
Posted on May 21, 2009Yesterday, my blog touched on the use of Rule 39.03 to examine non-party witnesses before the hearing of a pending motion or application. As noted, Rule 39.03 can be used to summons solicitors to give relevant evidence about a deceased former client in estate litigation proceedings...
Interplay between Estate Litigation and General Civil Litigation: The Use of Rule 39
Posted on May 20, 2009Estate litigation differs in many ways from general civil litigation, as noted in previous blogs on our website. Differences notwithstanding, estate litigators should still make it a habit to consider all of the Rules of Civil Procedure when planning out their litigation strategy...
The Question of Costs - Part 2 - Hull on Estate and Succession Planning #165
Posted on May 20, 2009Listen to The Question of Costs - Part 2 This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the question of costs. Specifically, they discuss the estimated costs when engaging a lawyer. If you have any comments, send us an email at hullandhull@gmail...
Useful Clauses in a Will - Hull on Estates Episode #163
Posted on May 20, 2009Listen to Useful Clauses in a Will This week on Hull on Estates, Paul Trudelle and Sarah Hyndman Fitzpatrick discuss various clauses in a will that may be useful in certain circumstances, such as carrying on a business, exclusion of illegitimates, or RESP's...
Access to Justice for the Elderly
Posted on May 19, 2009The growth in Canada's aging population has led to increased awareness of the special needs of seniors and the impact of the law on them. Our blogs have often dealt with issues that particularly affect the elderly, such as power of attorney abuse...
D-I-Y Funerals
Posted on May 15, 2009I recently came across an article which suggests that Do-It-Yourself (D-I-Y) funerals are an emerging trend in the United States. The article charts the growth of the home funeral movement in the last two decades. A D-I-Y home funeral can mean many things...
Twittering Lawyers
Posted on May 13, 2009By now, almost everyone has heard about Twitter. Twitter is the micro-blogging social network that allows you to publish and read short messages of less than 140 characters ('tweets'). Twitter has over 10 million users and with all the recent media attention it seems like everyone is on twitter; celebrities, news agencies, municipalities, and corporations...
Powers of Attorney and Real Estate Fraud
Posted on May 13, 2009To assist real estate lawyers in identifying forged powers of attorney and fraudulent real estate transactions, the Law Society of Upper Canada has provided real estate lawyers with a set of new guidelines and procedures for powers of attorney and real estate transactions...
Succession Planning for Lawyers
Posted on May 12, 2009A recent article in the Ontario Lawyers Gazette discusses succession planning for lawyers with respect to their practice. Lawyers often fail to plan for their retirement or death and often do not set up a formal succession plan for their practice to the determent of their families, clients, and colleagues...
The Distinction Between Bringing Motions and Commencing Proceedings - Hull on Estates #162
Posted on May 12, 2009Listen to The Distinction Between Bringing Motions and Commencing Proceedings This week on Hull on Estates Rick Bickhram and Chris Graham discuss some important distinctions between bringing motions and commencing proceedings in the estates context as opposed to general civil litigation...
The Question of Costs - Hull on Estate and Succession Planning #164
Posted on May 12, 2009Listen to The Question of Costs This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the question of costs. They talk about where people get paid out of in typical estate contested matter and begin to discuss what the costs are and what it really costs a client to engage a lawyer...
U.K. Man Loses Bid for Open Field Funeral Pyre
Posted on May 11, 2009A recent case from Britain focuses the spotlight on the traditional Hindu cremation practice. A 70 year old Hindu spiritual leader, Davender Ghai, sought the legal right to an open air funeral pyre. In 2006, Newcastle City Council has refused Mr...
Fanconi Canada - Funding Research to Find a Cure
Posted on May 08, 2009Over the weekend, lawyers from Hull & Hull attended a banquet and silent auction in support of Fanconi Canada, an organization committed to raising money for Fanconi Anemia. For those of you unfamiliar with the disease, Fanconi Anemia is a rare inherited blood disorder that can lead to bone marrow failure (it causes your bone marrow to stop producing the blood cells necessary for your body to function normally)...
In Burial News, Cemetery Goes "Green"
Posted on May 07, 2009For all those who are eco-obsessed, the New York Times reports that a cemetery in Lawrence, Kansas is offering an environmentally-friendly way to be buried (when your time finally comes; and see previous blogs that also touch on this issue using our search bar))...
Planning for Your Pet's Future Without You...
Posted on May 06, 2009In Maryland, legislation was recently enacted that allows pet owners to establish trusts for their pets, making it the 40th state to allow pet trusts. Previously, people could not leave gifts to pets because, at law, pets were chattels and could not inherit property...
Judgment Creditors - What Assets Can They Claim?
Posted on May 05, 2009Ker Estate v. Stevenson, a recent decision from the Ontario Court of Appeal, considered whether an annuity left to a beneficiary under a will could be encroached upon by a judgment creditor. In this case, the deceased directed that half the residue of her estate be used to purchase a non-commutable life annuity for her daughter...
Illustrating the Use of Technology - Hull on Estate and Succession Planning #163
Posted on May 05, 2009Listen to Illustrating the Use of Technology This week on Hull on Estate and Succession Planning Ian and Suzana illustrate the use of technology. They discuss the tools they use, knowledge management within their firm and how technology has made things much more accessible for current lawyers and law students...
Q + A with Rodney Hull - Hull on Estates Episode 161
Posted on May 05, 2009Listen 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...
For a Trustee, What Compensation is the Right Compensation?
Posted on May 04, 2009The recent decision of Pachaluck Estate v. DiFebo is a useful illustration of when the court is willing to reduce compensation awarded to the trustee for the administration of a simple estate. The main assets of the estate were the deceased's condominium and several bank accounts...
The Unique Characteristics of the Estate Retainer - Hull on Estates #160
Posted on May 03, 2009Listen to The Unique Characteristics of the Estate Retainer This week on Hull on Estates, Ian Hull and Suzana Popvic-Montag discuss the question of retainers. This topic comes from a seminar at the Law Society of Upper Canada where they had several practitioners in different areas come and talk about their retainers...
The birth of the biological single parent?
Posted on May 01, 2009I couldn't help but do a double-take when I came across an interesting article in the Globe and Mail by Anne McIlroy with the above-captioned title. Ms. McIllroy comments on the latest advances in stem-cell research, which indicate that it may be possible for someone to become a biological single parent - the source of both the egg and the sperm! How it seems to work is that adult skin cells can be turned into stem cells, and once they have been reprogrammed, these cells can be turned into many of the specialized cells that make up the human body...
The Right to Examine Incapable Persons and Minors?
Posted on April 30, 2009You would expect that a minor or a party to a proceeding who is declared mentally incapable to manage his/her property and/or personal care (under sections 6 and 45 of the Substitute Decisions Act) would not be able to or required to participate in the litigation...
Varying or Terminating Trusts
Posted on April 29, 2009Trusts can be varied or terminated prematurely in two ways: (1) through the operation of the rule in Saunders v. Vautier; and (2) under the powers of the court given by way of the Variation of Trusts Act. There is also potentially a third method - by a trustee's exercise of his absolute discretionary power given by the trust document...
Removing an Attorney for Property
Posted on April 28, 2009Removing an attorney for property is notoriously difficult. A person should only seek to remove an attorney for property when clear and compelling evidence presents itself. Where you feel the circumstances necessitate the commencement of a removal application, I recommend that you consider the following practical and strategic evidence-gathering steps, which may add teeth to your claim: ...
Issues that Arise with an Incapable Spouse - Hull on Estate and Succession Planning #162
Posted on April 28, 2009Listen to Issues the Arise with an Incapable Spouse This week on Hull on Estate and Succession Planning, Ian and Suzana pick up on the last couple points on the Canadian Conference on Elder Law put on by the Canadian Bar Association conference in Kingston, Ontario on June 9, 2009...
The Curious Case of the Rogue Remains
Posted on April 27, 2009A trip through the Ripley's Believe It Or Not Museum, a ride on the Maid of the Mist, catching a flick at the IMAX Theatre, posing for goofy pictures at Louis Tussaud's Waxworks. Oooh – don't forget the big breakfast at HoJo's after the late night at the Casino...
Cottage Plans: An upside to the Economy?
Posted on April 24, 2009It's Friday in late April. The May long weekend and all that cottage fuss is just around the corner. (I like the cottage, but understandably a lot of people choose the backyard.) In Ontario, we do not have inheritance tax like they do elsewhere, including the United Kingdom...
Risk Management: Lenders Beware
Posted on April 23, 2009On Tuesday I blogged about mortgage fraud and suggested that financial institutions may be at greater risk because of the B.C. Court of Appeal decision: Re Oehlerking Estate, 2009 BCCA 138. Why would they be at increased risk? In the B.C. case, the Judge ordered that the fraudster's title be set aside and that a new title be issued in the name of the plaintiff executrix...
A Will Challenge under the Indian Act
Posted on April 22, 2009In keeping with yesterday's blog on a British Columbia real estate matter, today I focus on another BC case - Albas v. Gabriel 2009 BCSC 198 - that involves the Indian Act, a federal statute. For a quick recap of the interplay between provincial and federal jurisdiction regarding estate matters and First Nations people living on reserves, I refer to David Smith's 2007 blog: The Administration of Estates under the Indian Act...
Henson Trusts - Hull on Estates #159
Posted on April 22, 2009Listen to Henson Trusts This week on Hull on Estates, Rick Bickhram and Sarah Fitzpatrick discuss Henson trusts (also called absolute discretionary trusts). They consider the use of such trusts to benefit disabled persons, and how best to protect the assets (typically an inheritance) as well as the right to collect government benefits and assistance...
Social Media and the Canadian Conference on Elder Law - Hull on Estate and Succession Planning #161
Posted on April 22, 2009Listen to Social Media and the Canadian Conference on Elder Law This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the idea of knowing what is going on around us in social media. They mention the Canadian Conference on Elder Law put on by the Canadian Bar Association conference in Kingston, Ontario on June 9, 2009...
Developments in Mortgage Fraud
Posted on April 21, 2009Often in the context of estate matters issues arise around real estate because it is often one of the largest assets comprising an estate. A recent decision in British Columbia is a case in point. Last week the BC Court of Appeal overturned a lower Court decision that found a defrauded financial institution was to be reimbursed by the unsuspecting widow whose home had been fraudulently mortgaged...
The Svalbard Global Seed Vault: The Ultimate Insurance Policy
Posted on April 20, 2009The Svalbard Global Seed Vault (SGSV), also known as the Doomsday Vault, is a secure seedbank located on a Norwegian island far within the Arctic Circle. The purpose of the SGSV is ‘to provide insurance against both incremental and catastrophic loss of crop diversity held in traditional seed banks around the world...
Crouching Billionaire Nina Wang, Hidden Feng Shui Master
Posted on April 17, 2009As we all know, Asia's richest woman Nina Wang Kung Yu-sum, died on April 3, 2007 with an estate guesstimated at HK$100 billion (a paltry US$12.9b or a piddling $15,527,045,650.09 CAD up here in still-snowing Canada), though the developer was worth maybe as low as US$4...
Motions in Estates Litigation: Longer Than You Think
Posted on April 16, 2009Estates litigation is full of wonderful little procedural differences from general civil litigation. The most basic differences are found in Rules 74 and 75 of the Rules of Civil Procedure. Take for example motions. One would think a motion is fairly straightforward, but...
The Millionaire, His Mistress, His Will & the ex-Governor
Posted on April 15, 2009A current Georgia case vividly illustrates the legal, emotional and moral complexity often involved in estates litigation. According to the reports, Harvey Strother died at age 78, having succumbed to progressively severe alcoholism brought on by the tragic death of his daughter at age 23...
Can a Net Family Property Equalization election set aside an estate freeze?
Posted on April 14, 2009Howard J. Feldman made a presentation on the circumstances where a net family property ("NFP") equalization can set aside an estate feeze. He also discussed structuring the estate freeze transaction to qualify as an exclusion from the transferee child's NFP...
The Freezing of the Assets - Hull on Estate and Succession Planning #160
Posted on April 14, 2009Listen to The Freezing of the Assets This week on Hull on Estate and Succession Planning Ian and Suzana discuss what the freezing of the assets step means and what the typical approach is for dealing with situations in which this step needs to be taken...
The Role of the Office of the Public Guardian Trustee - Hull on Estates #158
Posted on April 14, 2009Listen to The Role of the Office of the Public Guardian Trustee This week on Hull on Estates, Diane Vieira and Bianca La Neve discuss the role of the Office of the Public Guardian Trustee (PGT) in passings of accounts. They talk about the role of this government body, whose job it is to protect the interests of incapable persons, charities and absentees...
Ouch! It hurts...
Posted on April 13, 2009...but every recession has lucky people too. To save you hours of watching cable news and reading, here's a snapshot of good news and bad news on the legal profession in Canada and around the Common Law world: IN THE CROSS-HAIRS: with companies trying to pare their legal budgets between 6% and 35%, the #1 target for general counsels is...
Life Insurance as Property: Timing is everything
Posted on April 09, 2009For my final blog of this week, I thought I would give further consideration to the unique legal issues arising out of life insurance beneficiary designations. Because of the increasing complexity of insurance structures, it is not always easy to determine what "property" is held by a policyholder at the time of his death...
Insurance Trusts and Estate Administration Tax
Posted on April 08, 2009As a segue from yesterday's blog (which considered the issue of beneficiary designations of life insurance policies), today's blog considers issues arising from the characterization of life insurance proceeds as trust assets in the context of an overall estate plan...
Correcting Beneficiary Designations
Posted on April 07, 2009Declarations of beneficiaries of Life Insurance policies are sometimes thought to be 'unassailable.' However, where a deceased's first spouse is unexpectedly the named beneficiary of a life insurance policy owned by the deceased, the second spouse may have recourse to various legal remedies in an attempt to remedy what is argued to be an unjust situation...
Administration Bonds - Hull on Estates #157
Posted on April 07, 2009Listen to Administration Bonds This week on Hull on Estates, Megan Connolly and Paul Trudelle discuss administration bonds; what they are, when they are required, why they are required and dispensing with the administration bond in certain cases. In Particular they refer to the Henderson decision, a recent decision out of the Ontario Superior Court of Justice that deals with the issue of dispensing with an administration bond and what is required...
What Do We Expect From Our Clients? - Hull on Estate and Succession Planning #159
Posted on April 07, 2009Listen to What Do We Expect From Our Clients? This week on Hull and Estate and Succession Planning, Ian and Suzana discuss what we expect and what we can expect from clients. This topic was prompted by the recent changes by the Law Society to the bylaws in terms of what to ask clients...
The Third Man Factor
Posted on April 06, 2009Who is the third who walks always beside you? When I count, there are only you and I together But when I look ahead up the white road There is always another one walking beside you - T.S. Eliot, The Waste Land, 1922 I just finished reading a fascinating book authored by John Geiger called The Third Man Factor: The Secret to Survival in Extreme Environments...
Strategies to Reduce Probate Tax
Posted on April 03, 2009One of the essential objectives of estate planning is to reduce the amount of probate tax payable on your death. Ontario has a higher rate of probate tax than many other jurisdictions in Canada - it amounts to approximately 1.5% of the value of the assets in the estate (excluding real estate outside of Ontario and other exempt assets that pass to a named beneficiary or by right of survivorship)...
Jurors Turn to Web and Cause a Mistrial
Posted on April 02, 2009We have become information junkies - with a vast world of knowledge accessible in seconds by a tap of your finger on your computer, BlackBerry or iPhone. Most would agree that this is a good thing - a great thing - most of the time. But how about in the courtroom - during a trial? What is fascinating about this scenario is the convergence of two very distinct ideals - judicial procedure and tradition on the one hand, with the emerging benefits of readily available (and accessible) technology on the other...
Simplified Section 116 Clearance Certificate Procedures
Posted on April 01, 2009New Canadian tax rules, as they pertain to the sale of property by non-residents, came into effect at the beginning of 2009. The new procedures aim to further simplify the current clearance certificate process (which was already "simplified" back in 2007 to avoid unnecessary delays - see David Smith's Bar-Ex commentary in 2007 on this issue here and on our blog)...
The Positive Side of the Second Marriage - Hull on Esate and Succession Planning #158
Posted on April 01, 2009Listen The Positive Side of the Second Marriage This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the positive side of the second marriage from a planning standpoint with a focus on capacity planning. They discuss both property and personal care...
Estate Needs and Will Needs for Someone With a Dependent - Episode #156
Posted on April 01, 2009Listen to Estate Needs and Will Needs for Someone With a Dependent This week on Hull on Estates, Jonathan Morse and Sarah Fitzpatrick present and mock client situation in which they discuss the estate needs and will needs for someone with a dependednt...
Estate Needs and Will Needs for Someone With a Dependant - Episode #156
Posted on April 01, 2009Listen to Estate Needs and Will Needs for Someone With a Dependant This week on Hull on Estates, Jonathan Morse and Sarah Fitzpatrick present and mock client situation in which they discuss the estate needs and will needs for someone with a dependant...
Connect, Share & Inspire - MESH
Posted on March 31, 2009It's time to "mesh" again! Canada's leading web conference is being held in Toronto on April 7th and 8th of 2009. As many of our readers may already be aware, mesh has proven to be Canada's most exciting, informative and interactive web conference, attracting a host of keynote speakers...
Can I take that back?
Posted on March 30, 2009While confessing your sins on your deathbed may seem like a noble gesture, you would be wise to make sure you're actually going to die first. In a recent story reported in the UK's Independent website, a stroke victim's 'deathbed' confession to a murder proved premature...
Houdini's Final Escape?
Posted on March 27, 2009Following up on Jennifer Hartman's excellent blog on Harry Houdini's life and death, I came across information relating to the proposed exhumation of Harry Houdini. In March 2007, his grandnephew announced that he was seeking to have Houdini's body exhumed in order to determine the true cause of death...
To Whom is an Award of Costs Payable?
Posted on March 26, 2009This question is considered in the recent decision of Re Balanyk Estate, 2008 CanLII 63161 (Ont. S.C.). There, the Applicant was successful in resisting a motion to dismiss her claim for dependant support. Costs were awarded to the Applicant, payable out of the estate...
Court Proceedings Involving the Substitute Decisions Act and the Health Care Consent Act - Episode #155
Posted on March 25, 2009Listen to Court Proceedings Involving the Substitute Decisions Act and the Health Care Consent Act This week on Hull on Estates Diane Vieira and Bianca La Neve discuss some issues they've been encountering concerning court proceeding involving the Substitute Decisions Act and the Health Care Consent Act...
Obituary TV
Posted on March 25, 2009On February 26, 2009, the Canadian Radio-television and Telecommunications Commission ('CRTC') approved an application for a French-language specialty programming service that would be dedicated to the broadcast of obituary notices, notices of hospitalization and messages of thanks and prayers...
Taking His Secret to the Grave
Posted on March 24, 2009I think that in a year I may retire. I cannot take my money with me when I die and I wish to enjoy it, with my family, while I live. - Harry Houdini, Magician and Escapologist When I was around 6 or 7 years old, I was unequivocally obsessed with Harry Houdini...
Managing Disputes That Arise From Second Marriages - Hull on Estate and Succession Planning #157
Posted on March 24, 2009Listen to Managing Disputes That Arise From Second Marriages This week on Hull on Estate and Succession Planning, Ian and Suzana discuss managing family disputes that arise out of second or third marriage relationships. If you have any comments, send us an email at hullandhull@gmail...
Advance Directives: Do Not Resuscitate Orders
Posted on March 23, 2009One form of Advance Directive is the Do Not Resuscitate Order, commonly referred to as a DNR Order, or simply a DNR. It is a written order, signed by a medical professional, indicating one's desire that lifesaving measures not be initiated if one were to stop breathing or if one's heart has stopped...
Will Manitoba Give Inheritance Rights to Posthumously Conceived Children?
Posted on March 20, 2009The Manitoba Law Reform Commission has recently recommended that legislation be put into to place to give children who are artificially conceived after a parent's death the same rights to the parent's estate as children who were already living. The impetus behind the recommendation is the growing use of artificial conception techniques and the recently new possibility of conceiving a child after a partner's death...
Death and Taxes and RRSPs (Oh My!)
Posted on March 19, 2009The tax treatment of RRSPs on an annuitant's death is something that often confuses (and perplexes) beneficiaries of an estate. I've seen more than one situation where the residual beneficiaries of an estate are distressed to find out that the estate is picking up the tax bill for an RRSP being transferred to a named beneficiary…the argument being that they, as residual beneficiaries, should not have to pay taxes associated with funds be transferred to someone else...
Feeling Young? You May Be Older than You Think
Posted on March 18, 2009I keep hearing from my mother and her friends that 60 is the new 40. However, as it turns out, 27 might be the new 65 and those of you who have been thinking that you are getting smarter as you get older could well be mistaken. A study performed by researchers at the University of Virginia indicates that mental agility peaks around the age of 22 and starts to decline around the age of 27...
The Legal and Substantive Roll of the Executor - Episode #154
Posted on March 18, 2009Listen to The Legal and Substantive Roll of the Executor This week on Hull on Estates Ian Hull and Suzana Popovic-Montag discuss the legal and substantive roll of the executor at the time of death. They focus on the question of wqho has right and control over the body and refer to the 2001 decision of Sopinka vs...
The Drafting of Wills -Part 2 - The Specifics of Charitable Giving - Hull on Estate and Succession Planning #155
Posted on March 18, 2009Listen to The Drafting of Wills -Part 2 - The Specifics of Charitable Giving This week on Hull on Estates and Succession Planning, Ian Hull and Jordan Atin continue their discussion on the drafting of wills and take a closer look at the specifics of charitable giving...
The Drafting of Wills -Part 2 - The Specifics of Charitable Giving - Hull on Estate and Succession Planning #156
Posted on March 18, 2009Listen to The Drafting of Wills -Part 2 - The Specifics of Charitable Giving This week on Hull on Estates and Succession Planning, Ian Hull and Jordan Atin continue their discussion on the drafting of wills and take a closer look at the specifics of charitable giving...
The Legal and Substantive Role of the Executor - Episode #154
Posted on March 18, 2009Listen to The Legal and Substantive Role of the Executor This week on Hull on Estates Ian Hull and Suzana Popovic-Montag discuss the legal and substantive role of the executor at the time of death. They focus on the question of who has right and control over the body and refer to the 2001 decision of Sopinka vs...
Considerations in Determining Dependant Support
Posted on March 17, 2009The recent decision in Wilson v. DeBonis (Estate) involved the dependant support claim brought by the deceased's common law spouse and is a useful example of factors the court will consider when determining whether to order support. The deceased left a will in which he made a bequest to his son, and gave the applicant a life interest in the condo (at her death or when the condo was sold, the deceased's share of the condo was to pass to his grandchildren) and the residue of his estate...
Meet the Newest Frontier in Debt Collecting: The Dead
Posted on March 16, 2009When someone dies, they generally don't get to take their debts to the grave. Outstanding debts, such as bills and loans, remain just that…outstanding. And just because the debtor is now gone, does not mean the creditors are going to be forgiving...
Protecting a Trustee from Liability (Part V)
Posted on March 13, 2009My blog today is the last in my series this week on protecting a trustee from potential liability. A trustee may be protected from potential liability based on the conduct of the beneficiaries themselves or by having sought the assistance of the Court...
Protecting a Trustee from Liability (Part IV)
Posted on March 12, 2009Today's blog will continue my series this week on protecting trustees from potential liability. A trustee may incur personal liability arising from his or her administration of the trust. The provision or existence of a release and/or indemnification in favor of the trustee may protect, limit or exonerate the trustee from liability...
Protecting a Trustee from Liability (Part III)
Posted on March 11, 2009Today's blog is a continuation of my series this week on protecting a trustee from potential liability. Perhaps the best way for an outgoing trustee (and/or new trustee) to limit any liability that may be visited upon him/her/them as a result of the administration of the trust (or to the date of his or her retirement, removal and replacement) is for the trustee and his or her co-trustees, if any, to pass their accounts...
Powers of Attorney for Personal Care - Episode #153
Posted on March 11, 2009Listen to Powers of Attorney for Personal Care This week on Hull on Estates Diane Vieira and Natalia Angelini discuss powers of attorney for personal care. They refer to a paper by Mark Handelman on the subject. They point out that even though powers of attorney often garners less attention and is the subject of less disputes that it should still be carefully thought out...
Protecting a Trustee from Liability (Part II)
Posted on March 10, 2009Today's blog is part II in my series this week regarding the protection that may be available to a trustee against potential liability. Apart from the provisions of the trust document itself, a trustee's potential liability may be protected, limited or exonerated in a number of ways by statute...
The Drafting of Wills - Hull on Estate and Succession Planning #155
Posted on March 10, 2009Listen to The Drafting of Wills This week on Hull on Estates and Succession Planning, Ian Hull and Jordan Atin discuss drafting wills and some of the more personal aspects of it such as family matters and charitable giving. If you have any comments, send us an email at hullandhull@gmail...
Protecting a Trustee from Liability (Part I)
Posted on March 09, 2009A trustee, whether incoming or outgoing, needs to be aware of and consider his or her potential liability as trustee and over the administration of the trust. The trustee's conduct may be protected, limited or exonerated by the terms of the trust, statute, an Order relieving the trustee of liability, the existence or provision of releases or indemnities, a passing of accounts, the conduct of the beneficiaries, whether indirect or direct, and/or the assistance of the Court...
The Estate Freeze - Part 2 - Hull on Estate and Succession Planning #154
Posted on March 03, 2009Listen to The Estate Free - Part 2 This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on Estate Freezes and discuss the rights that shareholders have. If you have any comments, send us an email at hullandhull@gmail...
Due Regard to the Presumption of Due Execution
Posted on February 26, 2009The recent England and Wales Court of Appeal decision in Olins v. Walters [2008] EWCA Civ 782 gained some degree of notoriety among British legal observers. This Mutual Wills case was notable for its clear pronouncement that a constructive trust is impressed on the estate of the first testator to die during the lifetime of the second testator...
The Case for a Guardian
Posted on February 25, 2009With the remarkably cold January (and now February) we have experienced, it is sadly inevitable that there may be seniors who fall victim to the elements. However, a recent web posting regarding a 93 year-old WWII vet who died of hypothermia in his own home after the power was cut off is simply tragic...
Will Drafting: Art or Science?
Posted on February 24, 2009The March 2009 issue of Vanity Fair includes an interesting (albeit cheeky) article entitled "Final-Exit Strategies." Citing such works as Tuesdays with Morrie and The Last Lecture, the article notes the recent prevalence of works of fiction and non-fiction that are written from the perspective of someone contemplating their own imminent demise...
Protection For a Trustee Against Personal Liability - Episode #151
Posted on February 24, 2009Listen to Protection For a Trustee Against Personal Liability. This week on Hull on Estates, Craig Vander Zee and Bianca La Neve discuss protection for a trustee against personal liability. There are a variety of ways that protection is afforded to a trustee against liability, such as exculpatory clauses in trust documents, various provisions of the Trustee Act, passing of accounts, and releases by beneficiaries and/or third parties...
The Estate Freeze - Hull on Estate and Succession Planning #153
Posted on February 24, 2009Listen to The Estate Freeze This week on Hull and Estate and Succession Planning, Ian and Suzana discuss the estate freeze, what it is and why people would do typically do that in their estates. If you have any comments, send us an email at hullandhull@gmail...
Limitations of the Mini-Mental Status Examination
Posted on February 23, 2009The Mini-Mental Status Examination (MMSE) is a quantitative measure of cognitive status in adults. Since its creation in 1975, the MMSE has become the most widely used standardized cognitive screening test in both clinical practice and research. As a screening tool, the MMSE can have limitations, some of which are outlined here: · Interestingly, the MMSE was never actually designed for diagnosis of dementia; rather it was to be used as ‘a practical method for grading the cognitive state’ (Folstein et al...
Powers of Attorney for Personal Care ("POA for PC")
Posted on February 20, 2009In a paper recently given by Mark Handelman, he comprehensively reviewed POA for PC, which document, he notes, is more often prepared as an afterthought to the Will and POA for Property package - too frequently granted without serious discussion between lawyer and client and between client and proposed attorneys...
Conflicts of Laws and Dependants' Relief
Posted on February 19, 2009When advancing a dependant support claim, it is important to determine where the deceased person was domiciled[1] at death. Under the former dependants’ relief legislation (Dependants’ Relief Act, R.S.O. 1970, c. 126) the court could only make orders for dependant support in cases where the deceased died domiciled in Ontario...
Can an Independent Adult Child be Entitled to Dependant Support?
Posted on February 18, 2009The Succession Law Reform Act permits dependant support claims to be brought by a spouse, sibling, child and parent of a deceased. In order to qualify as a “dependant”, however, a spouse, parent, child or sibling must be someone to whom the deceased: (a) was providing support immediately before death; or (b) was under a legal obligation to provide support immediately before death...
The Decision of Frye vs. Frye - Hull on Estate and Succession Planning #152
Posted on February 18, 2009Listen to The Decision of Frye vs. Frye. This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the decision of Frye vs. Frye. In this case the court of appeal struggled with two competing documents. This created problems because there was a will issue that did not match up to the shareholders agreement that was created...
Delirium and Dementia - Untangling the Facts
Posted on February 17, 2009Delirium and dementia – are they different? Indeed, delirium and dementia are very different and have different diagnostic criteria, although just to muddle the discussion, these syndromes can occur concurrently. Delirium The word ‘delirium’ is derived from the Latin term delirare meaning ‘off the track’...
Insolvency issues when dealing with estates - Episode #150
Posted on February 17, 2009Listen to Insolvency issue when dealing with estates. This week on Hull on Estates Ian Hull and Suzana Popovic-Montag discuss insolvency issues and banking issues when dealing with estates now that we are in a more uncertain economy. Feel free to send us an email at hull...
Just Do It
Posted on February 13, 2009Tomorrow is Valentine’s Day, which means I am about to become the lucky recipient (insert sarcasm here), once again, of ‘subway flowers’. Call me a cynic, but I don’t consider subway flowers to be the hallmark (oooh – good pun) of advanced planning...
Claim of Devastavit against an Estate Trustee
Posted on February 12, 2009A claim of devastavit may be made against an estate trustee where mismanagement of estate assets is suspected. Black’s Law Dictionary (seventh edition) provides the following definition for devastavit: A personal representative’s failure to administer a decedent’s estate promptly and properly, especially by spending extravagantly or misapplying assets...
How Capacity Can Impact on Efforts to Create a Decision Making Tree - Hull on Estate and Succession Planning #151
Posted on February 12, 2009Mareva Injunctions in Will Challenge Proceedings
Posted on February 11, 2009A Mareva injunction is a court order that freezes the assets of individuals or companies. It can be obtained without notice to the target individuals and/or companies and can then be extended on notice. Mareva injunctions are usually employed in civil actions, typically situations involving fraud, where a plaintiff seeks to prevent a defendant from dissipating assets or removing them from the jurisdiction, pending final determination of the plaintiff’s action...
Tucker and Tucker Estate Will Challenge - Episode #149
Posted on February 10, 2009Listen to Tucker and Tucker Estate Will Challenge This week on Hull on Estates Megan Connolly and Paul Trudelle discuss a decision that was released on January 21, 2009 on the Tucker and Tucker estate, involving a will challenge. The sole issue was whether or not this particular will was valid...
Will-ful and Wantin': 2009 OBA Institute - Trusts and Estates Section
Posted on February 10, 2009This year’s trusts and estates section of the Institute was held on Tuesday, February 3, 2009. The programme featured a broad and interesting selection of topics by experienced practitioners. Topics included: Estate planning for ‘complex’ families Environmental liability issues for trustees, executors, attorneys and guardians Family law surprises Conflict of laws in cases of multi-jurisdictional families and their assets Developments in costs in estates and capacity litigation Trustee mistakes Rights of adult beneficiaries to receive support Capacity assessments Power of attorney pitfalls The programme was informative and insightful and a great opportunity to meet and speak with leading estate practitioners...
Strokes - An Overview
Posted on February 09, 2009There is a common misconception that strokes are almost formulaic in nature; sort of a one-size-fits-all approach to causes and outcomes. This is actually far from the truth. Here’s a quick anatomy refresher: Strokes are either ‘ischemic’ in origin (i...
Trillium Gift of Life Network Act: Donation of the Body or Body Parts
Posted on February 06, 2009Normally, it is the estate trustee who has the authority to deal with the disposition of the deceased’s remains. A deceased’s stated wishes with respect to disposition, including donation, are seen as merely precatory. However, Ontario’s Trillium Gift of Life Network Actvaries this usual authority, in a number of respects...
Jim Collins: Turning Crisis into Opportunity
Posted on February 05, 2009Someone forwarded me a terrific article from the February 2, 2009 issue of Fortune magazine. In it, Jim Collins, the author of “Built to Last” and “Good to Great”, notes the current economic volatility and uncertainty and states that such instability is in fact “normal”, as contrasted to the relative stability from 1952 to 2000, which he feels was an aberration...
Shareholders Agreements in the Context of an Estate Plan - Part 2 - Hull on Estate and Succession Planning #150
Posted on February 05, 2009Listen to Shareholders Agreements in the Context of an Estate Plan - Part 2 This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on shareholders agreements in the context of an estate plan. They discuss the fact that when creating a shareholders agreement we should deal with the day to day governance not the global governance which deals with directors and officers...
Estate Planning in Uncertain Economic Times - Episode #148
Posted on February 05, 2009Listen to Estate Planning in Uncertain Economic Times This week on Hull on Estates David Smith and Sarah Hyndman Fitzpatrick talk about estate planning in uncertain economic times. They discuss how the current economic situation has impacted estate planning and litigation and new tools (such as the "Tax Free Savings Account") to consider in creating you estate plan...
Eulogies
Posted on February 04, 2009A eulogy is a speech or writing in praise of a person or thing. The word derives from the Greek (gotta love those Greeks) word “eulogia”, meaning “good” and “words”. Although a eulogy can be used for a living person, it normally refers to a funeral oration, given in tribute to a person who has recently died...
Getting Funds Paid Into Court
Posted on February 03, 2009The recent Ontario Superior Court of Justice decision of Re Steen Estate addresses the issue of getting funds paid into court pending a determination of ownership. In that case, the deceased left a will that divided her estate equally amongst her three sons...
Mental Health and Capacity
Posted on February 02, 2009‘Mental disorders’ (also referred to as ‘psychiatric disorders’) encompass everything from personality disorders (including paranoid disorders, obsessive compulsive disorder and schizophrenia), anxiety disorders, psychosis (including hallucinations and delusions) and mood disorders (including depressive disorders and bipolar disorders)...
Budget 2009: Tax Changes Affect Estates
Posted on January 30, 2009The 2009 federal Budget contains a few items relevant to Estates, particularly with respect to Registered Retirement Savings Plans (“RRSPs”). For a thorough review please see the 343-page document. A Bloc Quebecois amendment to the Budget yesterday evening was defeated; Opposition Party amendments have yet to occur...
Fit for the job?
Posted on January 29, 2009What does an executor do? The first responsibility is to tend to funeral arrangements and then to gather up all the information relevant to the Estate. This information includes the ownership and value of assets, as well as the nature of all Estate liabilities...
Upcoming 'Health Series' of Blogs
Posted on January 29, 2009Hull & Hull LLP will be posting a 'health series' on our blog platform starting on Monday February 2nd. The series will run every Monday in the month of February, for a total of four blogs. As a nod to those subscribers who are estates and trusts practitioners, as well as to those subscribers who are clients of the same, the following subjects will be featured: Strokes; an overview Delirium vs...
The Death of a Barrister
Posted on January 28, 2009The British lawyer and author, John Mortimer, died on January 16, 2009. During his 85 years he produced more than 50 novels, biographies and memoirs. Of course he was best known for the creation of Rumpole of the Bailey. Mr. Mortimer had an active professional life, and by many accounts, an active private life as well...
Shareholders agreements in the context of an estate plan - Hull on Estate and Succession Planning #149
Posted on January 28, 2009Listen to Shareholders agreements in the context of an estate plan This week on Hull on Estate and Succession Planning, Ian and Suzana discuss what a shareholders agreement is and how that can be an important tool in the context of an estate plan...
An Annuity by Will
Posted on January 27, 2009Annuities are often employed when an individual plans his or her estate. We have covered different aspects of annuities on past blogs on Hull on Estates. A testator, for example, may choose to have one child’s portion of the future estate placed into an annuity that will create a flow of money over time...
Compensation paid to guardians of property - Episode #147
Posted on January 27, 2009Listen to Compensation paid to guardians of property This week on Hull and Estates Jonathan Morse and Christopher Graham discuss the topic of guardianship and particularly the compensation that would be paid to the guardians of property. They look at legislation, case law and practice notes for guardians and practitioners to keep in mind...
Whose house is it?
Posted on January 26, 2009This month the Liu children may be closer to keeping their home. The Globe and Mail published an article last month that described the unfolding drama. www.theglobeandmail.com/servlet/story/LAC.20081213.LIU13/TPStory/ In short, in 2005, eighty-three year old Margaret Liu died...
Managing a Move
Posted on January 26, 2009My mother used to volunteer with Goodwill, where one of the projects was a contents sale. A team from Goodwill would organize a home’s contents for sale – I have a frying pan purchased from one of those sales. Several organizations exist to assist with different aspects of the moving process...
In an Intestacy, Who Gets to be Estate Trustee?
Posted on January 23, 2009The recent decision in Mohammed v. Heera involved a dispute over who had the right to be appointed as the estate trustee of the Deceased’s estate. The Deceased died intestate and was survived by adult children, a minor grandchild, and an individual who the court determined to be the Deceased’s conjugal partner...
Spousal Support in Common Law Relationships, Quebec Style
Posted on January 22, 2009I came across a recent article in the Globe and Mail detailing a fight in Quebec between a common law couple over spousal support. The case involves a woman who is seeking alimony from her (former) common law partner. The article does not mention how long the couple was together (and Quebec privacy laws prevent their names from being mentioned); however, the relationship was sufficiently longstanding that they had three children together...
Fundamental business concepts that impact estate planning - Hull on Estate and Succession Planning #148
Posted on January 22, 2009Listen to Fundamental business concepts that impact estate planning This week on Hull on Estate and Succession Planning, Ian and Suzana discuss some of the fundamental business concepts that impact estate planning. They also talk about the need to disclose and why that is important, using the illustration of the use of shareholders agreements...
Belvedere v. Brittain Estate: Court of Appeal Denies Constructive Trust Claim
Posted on January 21, 2009In November 2007, David Smith and I podcasted on the Ontario Superior Court of Justice’s decision in Belvedere v. Brittain, a case involving a constructive trust claim against an estate by a Deceased’s common law spouse. At the time of the podcast, the decision was under appeal and I notice that earlier this month the Ontario Court of Appeal released its decision...
Short-circuiting the frivolous will challenge - Episode #146
Posted on January 20, 2009Listen to Short-circuiting the frivolous will challenge This week on Hull on Estates Natalia Angelini and Craig Vander Zee discuss the frivoulous will challenge from the perspective of how you might short-circuit it. Feel free to send us an email at hull...
Dispute Over Mountie's Remains Comes to an End
Posted on January 20, 2009The fight over the burial of a slain RCMP officer has finally come to an end. In May, and again in June, I blogged about the dispute over the remains of Leo Johnston, an RCMP officer who was slain along with three other officers in 2005. Following his death, Mr...
Damned lies?
Posted on January 19, 2009There are three kinds of lies: lies, damned lies, and statistics. – Benjamin Disraeli, British Politician, (1804-1881) Have you ever been completely overwhelmed while reading the morning paper? 1 in 6 American men will be diagnosed with prostate cancer during his lifetime (American Cancer Society, October 2008)...
The Name is Bond ... Administration Bond
Posted on January 16, 2009In many estates, the estate trustee seeks to dispense with the normal requirement of posting an administration bond, if one is in fact necessary. (A bond is usually required where a person dies intestate, where the will does not name an estate trustee, where the will names a foreign estate trustee, or where the application is by a succeeding estate trustee where the will does not name a successor...
Handwritten Alterations to a Formal Will
Posted on January 15, 2009Amending or altering a formal, attested will can be a difficult task. Such amendments may not be accepted by the Court, despite what may be the clear intentions of the testator. The recent Ontario decision of CIBC Trust Corp. v. Horn is illustrative of the principles involved...
LAST CALL: BREAKFAST SERIES SEMINAR - THURSDAY JANUARY 15, 2009
Posted on January 14, 2009This is our final reminder to register for our Breakfast Series presentation scheduled for Thursday January 15, 2009 from 8:30 am to 9:30 am. The presentation is followed by an “Estates Roundtable” discussion from 9:30 am to 10:15 am...
A Pound of Flesh?
Posted on January 13, 2009Shocking news out of Garden City, New York last week. It is one of those incredible stories you hear that will either have you rolling on the floor clutching your gut to stave off the laughing-induced cramps, or shaking your head in disbelief at the state of the world today...
The decision of Frye vs. Frye - Episode #145
Posted on January 13, 2009Listen to The decision of Frye vs. Frye This week on Hull on Estates Ian Hull and Suzana Popovic-Montag look at the decision of Frye vs. Frye, a case that was released in September 2008. It is an important case from a litigation standpoint as well as a state planning standpoint...
The Choice of a Personal Representative - Hull on Estate and Succession Planning #147
Posted on January 13, 2009Listen to The Choice of a Personal Representative This week on Hull on Estate and Succession Planning, Ian and Suzana look in more detail at choosing a personal representative and how to minimize tension when doing this. If you have any comments, send us an email at hullandhull@gmail...
The Choice of Personal Representative - Hull on Estate and Succession Planning #147
Posted on January 13, 2009Listen to The Choice of Personal Representative This week on Hull on Estate and Succession Planning, Ian and Suzana look in more detail at choosing a personal representative and how to minimize tension when doing this. If you have any comments, send us an email at hullandhull@gmail...
DEATH, TAXES, AND WINNING THE LOTTERY
Posted on January 11, 2009Two certainties and a long-shot. The Toronto Star reported on January 4, 2009 that on the day Donald Peters died, he unknowingly provided financial security for his wife of 59 years, and for their family. Peters bought two Connecticut Lottery tickets on November 1, 2008...
An Estate cannot pursue Charter Claims
Posted on January 09, 2009In a recent decision Giacomelli v. Canada (Attorney General), the Ontario Court of Appeal confirmed that an estate cannot continue a claim based on the Charter. The Deceased was a Canadian citizen of Italian origin who brought a statement of claim against the Government in 2005 for damages relating to his detention at a concentration camp...
Burris' Mausoleum Makes a Statement
Posted on January 08, 2009Those who follow American politics have probably heard of Roland Burris. He is controversial Governor Rod Blagojevich’s choice to replace the Senate seat vacated by President –Elect Barack Obama. While the constitutional debate continues on whether or not Burris can be seated in the Senate, another issue that has grabbed the headlines is Burris’ final resting place...
Tax Free Savings Accounts and Beneficiary Designations
Posted on January 07, 2009Starting last week, any resident of Canada over the age of 18 with a valid social insurance number can open up a tax-free savings account (TFSA) and make a contribution of up to $5,000 a year. Income earned inside a TFSA is not taxable and money can be withdrawn tax-free at any time...
Reasons Why an Estate Plan Can Go Awry - Hull on Estate and Succession Planning #146
Posted on January 07, 2009Listen to Reasons Why an Estate Plan Can Go Awry This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the reasons why an estate plan can go awry and how to address these issues. The reasons include the concept of an acrimonious extended family member, intransigent family members, making sure you have properly drafted documents and the choice of your estate trustee or personal representative...
Discussion of the case of Warren and Gilbert from Ontario Reports Dec 26th issue - Episode #144
Posted on January 07, 2009Listen to Discussion of the case of Warren and Gilbert from Ontario Reports Dec 26th issue This week on Hull and Estates, David Smith and Rick Bickhram, discuss the case of Warren and Gilbert from the Dec 26th issue of Ontario Reports. This case is interesting because it touches on procedural substantive issue relevant to both estates practitioners and family law practitioners...
The Duties of Expert Witnesses
Posted on January 06, 2009Wendy Reynolds from Slaw recently posted on a proposed regulatory change to the Rules of Civil Procedure with respect to the duties of expert witnesses. Coming into force in two years, the December 27, 2008 Ontario Gazette lists several amendments to the Rules of Civil Procedure including: RULE 4...
Upcoming Changes in the New Year
Posted on January 05, 2009Happy New Year! It promises to be an interesting year in estates law with exciting changes headed our way. Under the guidance of the Honourable Mr. Justice Brown, the Estates List Practice Direction is being updated and should be implemented before the end of the year...
Looking Forward to 2009
Posted on December 30, 2008I hope everyone is having great holiday season. With the close of 2008, we turn and look to the promise of 2009. In looking ahead to 2009 many may wonder if they have properly protected and provided for those they intend to protect should something unexpected happen to them...
Offers to Settle in a Will Challenge
Posted on December 30, 2008Offers to settle and more specifically, Rule 49.10 of the Rules of Civil Procedure, are intended to force the parties in a legal proceeding to consider the settlement of a matter prior to trial failing which, costs consequences will result if an offer is more favourable than the result obtained at the trial...
Procedural decisions that came out of the Ontario Superior Court of Justice - Hull on Estates #143
Posted on December 30, 2008Listen to Procedural decisions that came out of the Ontario Superior Court of Justice This week on Hull and Estates, Paul Trudelle and Diane Viera, discuss procedural decisions that came out of the Ontario Superior Court of Justice and in particular a few decisions from the honourable Mr...
Short Circuiting the Frivolous Will Challenge
Posted on December 29, 2008Facing a frivolous Will challenge can be very frustrating, time consuming and costly. In a typical Will challenge proceeding, the process can involve an application/motion for directions, documentary discovery from the parties and non parties, examination of the parties and non parties, interlocutory motions, mediation (informal or formal), expert reports, a pre-trial conference and a trial...
Hughes v. Kennedy Automation Limited: due diligence and discoverability under the Limitations Act, 2002
Posted on December 24, 2008The Ontario Court of Appeals recently affirmed the decision of Mr. Justice Glithero to refuse a motion to add a solicitor and his law firm as a defendant party to a proceeding for breach of contract, because the claim was discoverable more than two years prior to the motion...
More on Demographics: Under-Reporting of Alzheimer's Deaths?
Posted on December 23, 2008pThe words quot;aging populationquot; have graduated from being an overworked cliche to a trite observation.nbsp; The implications are intuitively obvious in many contexts.nbsp; We've blogged here on this topic before and what it means for lawyers.nbsp; Our understanding of the implications continues to evolve, and it helps to keep an eye on other countries with similar levels of economic development, social services and legal cultures (and bigger populations hence more money to study the issue)...
The formal requirements to make a valid Will in Ontario - Hull on Estates #142
Posted on December 22, 2008pListen to a href="http://media.libsyn.com/media/kirsten/HOE_142_FINAL.mp3"The formal requirements to make a valid Will in Ontario/a/p pbr / !--[if gte mso 9]xml u3:LatentStyles DefLockedState="false" DefUnhideWhenUsed="true" DefSemiHidden="true" DefQFormat="false" DefPriority="99" LatentStyleCount="267" u3:LsdException Locked="false" Priority="0" SemiHidden="false" UnhideWhenUsed="false" QFormat="true" Name="Normal" / u3:LsdException Locked="false" Priority="9" SemiHidden="false" UnhideWhenUsed="false" QFormat="true" Name="heading 1" / u3:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 2" / u3:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 3" / u3:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 4" / u3:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 5" / u3:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 6" / u3:LsdException Locked="false" 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Locked="false" Priority="31" SemiHidden="false" UnhideWhenUsed="false" QFormat="true" Name="Subtle Reference" / u3:LsdException Locked="false" Priority="32" SemiHidden="false" UnhideWhenUsed="false" QFormat="true" Name="Intense Reference" / u3:LsdException Locked="false" Priority="33" SemiHidden="false" UnhideWhenUsed="false" QFormat="true" Name="Book Title" / u3:LsdException Locked="false" Priority="37" Name="Bibliography" / u3:LsdException Locked="false" Priority="39" QFormat="true" Name="TOC Heading" / /u3:LatentStyles /xml![endif]--This week on Hull and Estates, Christopher Graham and Bianca La Never review the formal requirements to make a valid Will in Ontario and the consequences of failing to adhere to the formal requirement...
Administering Assets that are Personal Property Items - Hull on Estate and Succession Planning #144
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Section 35: Saving Provision for Gotcha! Litigation
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Jury Blocks Sale of Oscars
Posted on December 19, 2008div style="background-color: rgb(255, 255, 255); padding-top: 5px; padding-right: 5px; padding-bottom: 5px; padding-left: 5px; margin-top: 0px; margin-right: 0px; margin-bottom: 0px; margin-left: 0px; font-size: 12px; "A Los Angeles jury has a href="http://www...
Transition of Disabled Minors into Adulthood - Hull on Estates #141
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Amendments to the Limitations Act, 2002 affect Demand Obligations
Posted on December 18, 2008pspan style=" font-size: 12px; " p style="margin-top: 0in; margin-right: 0in; margin-bottom: 12pt; margin-left: 0in; "I received an email from research counsel at LawPro yesterday advising that there have been amendments to thenbsp;ia href="http://www...
The Use and Impact of Trust Companies - Hull on Estate and Succession Planning #143
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Exploring the Reach of the Anti-Lapse Doctrine: Does a "Special Relationship" Count?
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Do-It-Yourself Wills: Is the Cheap Way the Best Way?
Posted on December 16, 2008Yesterday, I blogged about how the downturn in the economy has caused a decline in charitable donations this year. It is also having an impact on estate planning. Rather than spending money on a lawyer, an increasing amount of people are turning to the internet to draw up their last will and testament...
As the Economy Sours, Charities Feel the Pinch
Posted on December 15, 2008The holiday season is generally the time when people give most generously to charity. However, with the souring economy, many charities are seeing their donations dry-up. Individual giving has been on the decline, as many people appear either unable to donate as in the past or unwilling to until the economy seems stable again...
Frye v. Frye Estate
Posted on December 12, 2008Earlier this week I blogged on how estates disputes can take on layers of complexity when principles of Family Law and Contract Law are brought into the process. The recent decision of the Ontario Court of Appeal in Frye v. Frye Estate demonstrates an instance of complexity arising out of the relationship between a shareholder's agreement and a Will...
I'm dying. No seriously. I looked it up on the internet.
Posted on December 11, 2008You've heard the expression, "A little knowledge can be a dangerous thing". A few weeks ago, my husband (he begged me not to name him) was washing the dishes when he suddenly cried out in pain. He had, by the strangest of circumstances, somehow managed to drive an uncooked spaghetti noodle under his thumbnail...
Overlays of Family, Estates and Contract Law
Posted on December 10, 2008The impact of Stone v. Stone will clearly have a lasting impact on the practice of family law. This case stands for the general proposition that a spouse can not deplete their assets with the effect of diminishing their spouse's entitlement under the Family Law Act...
The Beers List - definitely not your holiday shopping reminder
Posted on December 09, 2008The administration of drug therapy in the elderly is a complex undertaking. As a person ages, they undergo physiological changes; changes in body composition, gastrointestinal, liver and/or renal function that can alter both the therapeutic and toxic effects of drugs...
Managing Estate Issues - Hull on Estates #140
Posted on December 09, 2008Listen to Managing Estate Issues This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag talk about how to manage an estate dispute as opposed to preventing it. They use an example of a joint account shared between 'Mom' and 'daughter' to examine the best way to approach posthumous problems and misunderstandings...
Guardianship in Canada - Hull on Estate and Succession Planning
Posted on December 09, 2008Listen 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...
The Perils of Powers of Appointment?
Posted on December 08, 2008Powers of Appointment may appear in a Will when a testator wishes to entrust the donee with authority to direct who will be the recipients of the testator's property. A not uncommon scenario is one in which the donee of the power is given a life interest in the testator's estate and a Power of Appointment to determine which of the donee's issue shall be the recipients of the residue of the testator's estate on the death of the donee...
Step 5: Execution Requirements
Posted on December 05, 2008You've finalized your draft Will. Everything appears to be in order - you just need to "sign it up". You ask your lawyer if he or she can just send you the Will so that you can have it witnessed at home. This seems to be straightforward enough - what can possibly go wrong? Centuries of litigation attest to the fact that things can - and do - go wrong when a will is not validly executed...
Step 4: Powers of Attorney
Posted on December 04, 2008So, you now have your Will underway and your lawyer suggests that you also prepare documents for while you're still "above the ground", i.e. powers of attorney. The law relating to the delegation of decision making power in Ontario is governed by the Substitute Decisions Act, 1992, S...
Step 3: "On Second Thought..." - Codicils
Posted on December 03, 2008A quick aside before I consider the effect of making changes to your Will (referred to as a Codicil) or altering your Will, which is Step 3 of my estate planning discussion. Cable magnate Ted Rogers has passed away at the age of 75 (watch a video link here)...
The Benefits of the Family Meeting - Hull on Estate and Succession Planning #141
Posted on December 03, 2008Listen 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...
Step 2: Your Will
Posted on December 02, 2008If you tuned in yesterday to our blog, you noticed that this entire week is devoted to a discussion of a "5-Step Estate Plan". Today I will be considering your last Will and Testament - commonly described as the foundation of any estate plan...
Rose v. Rose - Hull on Estates #139
Posted on December 02, 2008Listen 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...
The 5 Step Estate Plan
Posted on December 01, 2008For something a little different on the blogging front, this week I will be providing a 5 part guide to developing your estate plan. Today's blog will canvas preliminary issues to consider when creating (or revisiting) your estate plan...
KRISTALLNACHT - 70 years later
Posted on November 28, 2008Retired professor Fred Westfield was 12 years old when he last saw his uncle, Walter Westfeld, a renowned art collector. Two days later came Kristallnacht, or the Night of Broken Glass, on November 9, 1938. Kristallnacht was a coordinated attack on Jewish people and their property during which nearly 30,000 Jews were arrested and deported to concentration camps...
Further Musings on s.35.1 of the S.D.A.
Posted on November 27, 2008On Tuesday of this week, I blogged on s.35.1 of the Substitute Decisions Act. This section of the Act provides that a guardian of property for an incapable person has an obligation to preserve property that is subject to a specific legacy in the incapable person's Will unless that property must be used to fund the needs of the incapable person...
The Slippery Edge of the Slope
Posted on November 26, 2008As a former manager at an assisted living facility, I was often (too often) witness to the devastating aftermath of falls in the elderly. As an administrator, the direct effects of a fall are obvious and measurable. According to the Centers for Disease Control and Prevention, over 1...
The Concept of Ethical Wills - Hull on Estates #138
Posted on November 25, 2008Listen to The Concept of Ethical Wills This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss innovative techniques that add value to doing a will and powers of attorney. Specifically they discuss the concept of ethical wills and how they are different from a traditional will...
One Nexus of Capacity Litigation and Estate Litigation
Posted on November 25, 2008Section 35 of the Substitute Decisions Act ("Act") states that "a guardian of property shall not dispose of property that the guardian knows is subject to a specific testamentary gift in the incapable person's will." And under s 33...
Direct and Indirect Approaches to Estate Planning - Part 1
Posted on November 25, 2008Listen to Direct and Indirect Approaches to Estate Planning - Part 1 This week on Hull on Estate and Succession Planning, Ian and Suzana start a discussion on their global philosophy toward the estate planning process. There are direct and indirect approaches to capacity and estate planning and in this episode, Ian and Suzana explore these approaches as they pertain to the choice of attorney...
After JFK: The Transfer of Power
Posted on November 24, 2008Exactly two hours and eight minutes after then-President John F. Kennedy was shot two cars ahead of him in a motorcade in Dealey Plaza, and exactly ninety-eight minutes after Kennedy was declared dead, Lyndon B. Johnson was sworn in as President aboard Air Force One...
11TH ANNUAL ESTATES AND TRUSTS SUMMIT
Posted on November 21, 2008The 11th Annual Estates and Trusts Summit was held in Toronto on November 19 and 20, 2008. This excellent program featured a number of experienced practitioners speaking on a broad array of estates and trusts topics. Topics (and speakers) included: Family Law Update (Karon Bales) Shareholder Issues – The Family Business in Succession Planning (Frank Archibald) Dealing with Insolvent and Bankrupt Estates (Barry Corbin and Robert Klotz) The Non-Resident Factor in Estate Planning (Mary Anne Bueschkens and M...
CHALLENGING A WILL: AN ILLUSTRATION Part IV
Posted on November 20, 2008Today is the final instalment of my discussion of Hix v. Ewachniuk Estate, 2008 CarswellBC 1300 (Hinkson J.). After dismissing the will challenge on the basis of due execution, testamentary capacity and knowledge and approval, the court turned to the issue of undue influence...
CHALLENGING A WILL: AN ILLUSTRATION Part III
Posted on November 19, 2008Yesterday, I discussed Hix v. Ewachniuk Estate, 2008 CarswellBC 1300 (Hinkson J.), and the finding of the judge that suspicious circumstances existed, placing the onus back on the propounder to prove testamentary capacity and knowledge and approval. As to testamentary capacity, the court referred to the oft – quoted decision of Banks v...
Will Challenge wrap-up and Power of Attorney Litigation- Hull on Estate and Succession Planning #139
Posted on November 18, 2008This week on Hull on Estate and Succession Planning, Ian and Suzana give a final comment on Will Challenge litigation and speak about their topic at the Canadian Conference on Elder Law in Vancouver; Power of Attorney Litigation. If you have any comments, send us an email at hullandhull@gmail...
Offers to Settle in the Context of a Will Challenge - Hull on Estates #137
Posted on November 18, 2008Listen to Offers to Settle in the Context of a Will Challenge This week on Hull on Estates, Craig Vander Zee and Bianca La Neve talk about offers to settle in the context of a will challenge. They explain the difference between a will challenge and civil litigation and discuss several examples of will challenge cases...
CHALLENGING A WILL: AN ILLUSTRATION Part II
Posted on November 18, 2008Yesterday, I introduced the will challenge decision of Hix v. Ewachniuk Estate, 2008 CarswellBC 1300 (Hinkson J.). After disposing of the issue of due execution, the court turned to the doctrine of “suspicious circumstances”. The court referred to these Supreme Court of Canada decision of Vout v...
CHALLENGING A WILL: AN ILLUSTRATION Part I
Posted on November 16, 2008A recent case out of the British Colombia Supreme Court provides an excellent illustration and discussion of various grounds upon which a will can be challenged. In Hix v. Ewachniuk Estate, 2008 CarswellBC 1300 (Hinkson J.), the deceased was survived by a son and two daughters...
Waiving the deposit requirement under the Estate Administration Tax Act, 1998
Posted on November 14, 2008Section 3 of the Estate Administration Tax Act, 1998, requires an applicant for a Certificate of Appointment of Estate Trustee to make a deposit in an amount equal to the tax that will become payable under the Act. There is an exemption in subsection 4(2) of the Act, which grants a judge discretion to allow the "estate certificate" (as defined by the Act) where the judge is satisfied: (a) that the estate certificate is urgently required; (b) that financial hardship would result from not issuing the estate certificate before the deposit is made; and (c) that sufficient security for the payment of the tax under this Act has been furnished to the court...
A Day in the Life of an Income Trust Deconverter
Posted on November 13, 2008Regardless of the wisdom of the federal government's fateful decision to tax income trusts, its impact on the trust sector has been profound. Retail investors, corporate managers, lawyers and accountants, government tax departments: all are affected by this policy decision...
Trust Law and Zebra Mussels
Posted on November 12, 2008In the wee hours of Saturday night, on my umpteenth flight back from Asia this year, I couldn't help but ponder two things. First, the recent collapse of the U.S./global financial system and greater economy compares poorly to what I have witnessed in Asia for years now...
The Family Law Act and division of property problems- Hull on Estates #136
Posted on November 11, 2008Listen to The Family Law Act and division of property problems This week on Hull on Estates, Diane Vieira and Rick Bickhram talk about the Family Law Act and division of property problems. They discuss determining net family property, quantifying the assets of the deceased and making an equalization claim...
Will Challenge Litigation - Part 13 - Hull on Estate and Succession Planning #138
Posted on November 11, 2008Listen to Will Challenge Litigation - Part 13 [Audio Version Currently Not Available] This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the five factors the court looks at when challenging a will...
Multiple Wills Can Mean Multiple Certificates of Appointment
Posted on November 11, 2008Primary and secondary wills are common enough situations for estates practitioners: one will for probate and the other for assets that can pass outside probate, to minimize estates administration taxes. But what about situations with multiple wills requiring probate? According to the October 8, 2008 endorsement of Mr...
The House Owner, Her Contractor, The Stasher and His 21 Descendants
Posted on November 10, 2008Eighty years ago, at the height of the Great Depression, a wealthy Ohio businessman hid $182,000 in minted $50 bills in a wall in his house. There it hung peacefully by a wire in a green metal lockbox, disturbed only by inflation...
Pirates of the Plains
Posted on November 07, 2008George Webster appealed to the Ontario Court of Appeal from a summary judgment partially dismissing his claim for damages against the estate of Ken Thomson. Webster v. Thomson, 2008 ONCA 730. At issue was a painting by the American artist, Charles Russell, "Pirates of the Plains", which had been in the Webster family since 1931...
Will Challenge Litigation - Part 12 - Hull on Estate and Succession Planning #137
Posted on November 07, 2008Listen to Will Challenge Litigation - Part 12 This week on Hull on Estate and Succession Planning, Ian and Suzana clarify the distinction between claims of resulting trust and claims of constructive trust. <!-- /* Font Definitions */ @font-face {font-family:"Cambria Math"; panose-1:2 4 5 3 5 4 6 3 2 4; mso-font-charset:1; mso-generic-font-family:roman; mso-font-format:other; mso-font-pitch:variable; mso-font-signature:0 0 0 0 0 0;} @font-face {font-family:Calibri; panose-1:2 15 5 2 2 2 4 3 2 4; mso-font-charset:0; mso-generic-font-family:swiss; mso-font-pitch:variable; mso-font-signature:-1610611985 1073750139 0 0 159 0;} /* Style Definitions */ p...
Commencing an Application under the Substitute Decisions Act
Posted on November 06, 2008A recent decision by Brown, J. heralded good news for the Estates Bar. The applicant wished to issue a guardianship application under sections 22 and 55 of the SDA in the Toronto Region Estates Office. The guardianship application was in respect of her son who was injured in a car accident in 1997...
Proof of a Lost or Destroyed Will - Not so Fast
Posted on November 05, 2008On Monday, I blogged on proving a lost or destroyed will in court: If an original will which was last traced into the possession of the testator cannot be located following the death of the testator, a rebuttable presumption arises that the testator destroyed the will with the intention of revoking it...
Duties of an Estate Trustee - Hull on Estates #135
Posted on November 04, 2008Listen to Duties of an Estate Trustee This week on Hull on Estates, David Smith and Natalia Angelini talk about the duties an estate trustee he or she is charged with from the moment of a testator's passing. Duties include locating the will, making funeral arrangements and being responsible to see the intentions of the testator preserved...
Charles Dubin - The passing of a Legal Legend
Posted on November 04, 2008It was with considerable sadness that the legal community marked the passing of Charles Dubin last week. In its obituary, The Toronto Star called him "a legal giant" and a "national icon" and it was not alone. Charles Dubin was widely acknowledged as possessing a keen legal mind...
Dealing with Estate Issues That Arise Immediately Upon Death - Hull on Estates #135
Posted on November 04, 2008Listen to Dealing with Estate Issues That Arise Immediately Upon Death This week on Hull on Estates, David Smith and Natalia Angelini talk about the duties an estate trustee he or she is charged with from the moment of a testator's passing...
Proof of a Lost or Destroyed Will
Posted on November 03, 2008Welcome to my week of blogs. The perennial problem of a lost or destroyed will is not new. Much law has been written and effort spent on the subject. I am also counsel in a lost will proceeding that is a real bugaboo. I therefore thought that it would be worthwhile to cover off the basics...
Sweet Success: Shares, Trusts & Families
Posted on October 31, 2008It’s Hallow’s Eve – there will be candy all round tonight. Well, all weekend if we’re lucky. And, fittingly, just in time for the sweet sound of “trick or treat” Mars, Inc. completed its purchase of the Wm. Wrigley Jr...
A New Life to Legacies?
Posted on October 30, 2008The business pages, especially in this uncertain economy, can be interesting. Recently I gravitate toward Paul Waldie's column in the Globe & Mail. Frequently, he identifies the gifts, causes and reasons provided by individuals whose donations range from under $100,000 to a million dollars or more...
Snowbirds and a Power of Attorney
Posted on October 29, 2008The cooler weather is cause for many people, retirees especially, to plan an annual sojourn south. In preparing for the winter, protecting real property -- often a significant asset -- may be top of mind. My colleague, Paul Trudelle, wrote about "Real Estate Transactions Involving Powers of Attorney" in July 2008...
Heirs: Lost and Found
Posted on October 28, 2008As a WWII pay officer in the Canadian military, my paternal grandfather met a British woman on the beach when he was stationed in the south of England. They married soon after the War and retired in England in the mid-1960s. My grandfather died in the early 1990s; when my step-grandmother, Tessa, died in 2008, in her Will she left her house to my father and aunt...
The Law as it Affects Older Adults - Hull on Estates #134
Posted on October 28, 2008Listen to The Law as it Affects Older Adults 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...
Will Challenge Litigation - Part 11 - Hull on Estate and Succession Planning #136
Posted on October 28, 2008Listen to Will Challenge Litigation - Part 11 This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the differences between quantum meruit and propriety estoppel. As with any add-on claims, the courts require solid corroboration...
Searching for long lost heirs
Posted on October 27, 2008In Scotland for my honeymoon, I encountered a few different “estates”. Hiking the West Highland Way – averaging about 12 miles a day – we passed Blackmount Lodge, in the Bridge of Orchy. The lodge, owned by the Fleming family (of James Bond fame) sits on the edge of an idyllic loch...
The Top Three Common Claims Against Lawyers
Posted on October 24, 2008I recently read an article regarding the most common claims against lawyers, which is authored by Dan Pinnington who is the director of practicePro, LawPro’s risk and practice management program (click here for the article). I found it particularly interesting that only a small portion of LawPro claims account for a lawyer’s inability to know or apply the substantive law...
The Dreaded Application for Certificate of Appointment of an Estate Trustee
Posted on October 23, 2008I have learned that only a small percentage of applications for certificate of appointment of an estate trustee, filed in Toronto, are approved without being sent back for correction. Some common problems associated with these types of applications are, incorrect or inconsistent references to the deceased's name, problems concerning the mailing of the application to beneficiaries who have an interest in the subject estate, incorrect calculations of estate administration tax and in cases involving holographic wills, a missing affidavit attesting to the handwriting of the deceased...
The Duty to Dispose of the Body
Posted on October 22, 2008Upon the death of a person, a duty arises to bury or otherwise dispose of the remains in a decent and dignified fashion. But who does this duty fall upon? It is well established in the jurisprudence for Ontario that plans for the service and burial arrangements are the responsibility of the estate trustee...
Unduly Influenced Not to Make a Will?
Posted on October 21, 2008I recently attended a breakfast seminar hosted by Hull & Hull LLP, where I listened to my colleague, Natalia Angelini, speak about a testator's capacity to give instructions for the preparation of a Will. During Natalia's discussion, she spoke about the varying levels of capacity for different transactions...
Will Challenge Litigation - Part 10 - Hull on Estate and Succession Planning #135
Posted on October 21, 2008Listen to Will Challenge Litigation - Part 10 This week on Hull on Estates, Ian and Suzana discuss extraneous claims that can arise during a will challenge. In particular, they talk about propriety estoppel and other situations where someone worked to their detriment in the context of an estate dispute...
The Interrelationship Between a Guardian of Property and a Trustee Under a Testamentary Trust - Hull on Estates Podcast # 133
Posted on October 21, 2008Listen to: The Interrelationship Between a Guardian of Property and a Trustee Under a Testamentary Trust This week on Hull on Estates, Rick Bickhram and David M. Smith discuss the complications that can arise when an incapable person is both the subject of a guardianship order and the beneficiary of a testamentary trust...
Has Heath Ledger's Estate Been Settled?
Posted on October 20, 2008You may remember that my colleague, Chris Graham, blogged on the death of the actor, Heath Ledger and the pending litigation involving his estate (Link to Chris Graham's Blog). It has been well reported that Ledger last made a Will in 2003, before the birth of his daughter Matilda (in 2005) and before his claim to fame...
Variation of Trust - The Application
Posted on October 17, 2008Today’s blog is the last in my series this week on the variation of a trust under the Variation of Trusts Act and touches upon the Application material to be brought in respect of the variation. The Application seeking approval of the variation is usually brought by one or more of the capacitated beneficiaries...
Variation of Trust - The Deed of Arrangement
Posted on October 16, 2008Today’s blog is a continuation of my blogs this week on the variation of a trust under the Variation of Trusts Act and will focus on the Deed of Arrangement. The approach to, and content of, the Deed of Arrangement will most certainly depend on the circumstances involved...
Variation of Trusts - The Litigation Guardian
Posted on October 15, 2008In yesterday’s blog on the procedure typically involved with a variation of a trust proceeding under the Variation of Trusts Act, I mentioned that today I would touch upon the need to appoint a litigation guardian for a minor, unascertained, unborn and/or for an incapable party in such a proceeding...
Variation of Trust - Procedure
Posted on October 14, 2008I hope everyone had a nice Thanksgiving weekend. In a recent blog of mine (“To vary a Trust or not to vary a Trust: Does a Statute have the Answer?”), I touched upon the Variation of Trusts Act (R.S.O. 1990, c. V.1) as the authority to vary a trust...
Testamentary Capacity Issues - Hull on Estates #132
Posted on October 14, 2008Listen to Testamentary Capacity Issues This week on Hull on Estates, Paul Trudelle and Natalia Angelini discuss testamentary capacity issues as they arise in estate matters. Wills require the highest level of capacity and testators need to demonstrate that they are of a sound and disposing mind...
Will Challenge Litigation - Part 9 - Hull on Estate and Succession Planning
Posted on October 14, 2008Listen to Will Challenge Litigation - Part 9 This week on Hull on Estates, Ian and Suzana discuss other claims that can be made concurrent to a classic will challenge. In particular, they talk about quantum meruit claims and how these can be interpreted differently depending on the situation...
TIME TO GIVE THANKS
Posted on October 10, 2008As it is the Friday before a long weekend, I thought a more light-hearted blog would be in order. What is the origin of Canadian Thanksgiving? Like so much in Canada, we borrowed the tradition from our American cousins in the mid 1800s. However, at the time, Protestant church leaders in Ontario wanted to set the right moralistic tone when it came giving thanks for the harvest...
SECTION 3 COUNSEL: A CATCH-22
Posted on October 09, 2008Pursuant to Section 3 of the Substitute Decision Act, the court may direct the PGT to arrange for legal representation for a person whose capacity is in issue in a proceeding under the SDA. The SDA further states that the person so represented shall be deemed to have capacity to retain and instruct counsel...
Ordering a Second Capacity Assessment
Posted on October 08, 2008Pursuant to section 79 of the Substitute Decisions Act, the court has discretion to order a capacity assessment of an individual if the person’s capacity is an issue in a proceeding under the SDA. The court must also be satisfied that there are reasonable grounds to believe that the person is incapable...
Will Challenge Litigation - Part 8 - Hull on Estate and Succession Planning
Posted on October 07, 2008Listen to Will Challenge Litigation - Part 8 This week on Hull on Estates, Ian and Suzana discuss corporate issues and implications during a will challenge. Issues of testamentary capacity and undue influence can become extremely complex questions to investigate in a corporate inquiry...
A Dynamite Legacy
Posted on October 07, 2008I recently blogged on the lasting legacy of Cecil Rhodes. Along the same lines, the life of Alfred Nobel is worth considering. Like most “great men”, Nobel was a bundle of contradictions. He was a successful Swedish business who is best remembered for inventing dynamite...
Piszczek v. Zurawska - Hull on Estates #131
Posted on October 07, 2008Listen to Piszczek v. Zurawska This week on Hull on Estates, Christopher Graham and Paul Trudelle discuss the recent decision in the case of Piszczek v. Zurawska that demonstrates the application of a resulting trust of joint accounts. Comments? Send us an email at hull...
Compensation & Personal Care Guardians
Posted on October 06, 2008Welcome to my week of blogs. The Substitute Decisions Act is silent when it comes to the issue of compensation for personal care guardians. Section 40 of the SDA addresses compensation for property guardians, but there is no corresponding provision for personal care guardians (though regard can be had to section 68(4) of the SDA)...
Elder Law: A Growing Practice Area
Posted on October 03, 2008The focus on Canada’s aging population, and the special needs of seniors, is becoming recognized in legal circles as a growing practice specialty: elder law. Elder law lawyers have a multi-disciplinary and multi-faceted practice that ranges from estates, to health law, to real estate...
Limitation Period Not a Sword
Posted on October 02, 2008A recent decision from British Columbia, Desbiens v. Bernacki, 2008 BCSC 696 is a good reminder that a limitation period is a shield, not a sword. In Desbiens, the deceased had four children from a first marriage. After his first wife left him, he placed three of his children in foster care; one child was adopted...
Right to Choose Your Final Resting Place
Posted on October 01, 2008A recent Toronto Life magazine article, “The New Death Etiquette” examines mourning in the 21st century. The new death etiquette includes multicultural hybrid funerals and intricate grieving rituals. Many funerals now are elaborate functions designed to reflect the individual personality of the deceased person...
Will Challenge Litigation - Part 7 - Hull on Estate and Succession Planning
Posted on September 30, 2008Listen to Will Challenge Litigation - Part 7 This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step. They discuss fraud as one of the most serious ways in which a will can be challenged...
Identifying a Common Law Spouse
Posted on September 30, 2008Common law spouses are not included in Part II of Ontario’s Succession Law Reform Act, which governs intestate succession (dying without a valid Will). In British Columbia, unlike Ontario, intestate laws now provide the same rights to common law spouses as to married spouses, if the couple lived together in a marriage-like relationship for a period of at least two years before the death of one of them...
A Review of Dependant Support Claims - Hull on Estates #130
Posted on September 30, 2008Listen to A Review of Dependant Support Claims This week on Hull on Estates, David Smith and Jonathan Morse review some of the recent podcasts and hone in on some of the evidentiary requirements of a common-law spousal relationship as it relates to dependant support claims under the Succession Law Reform Act...
Millionaire Widow Seeks Support
Posted on September 29, 2008A recent Ontario decision, MacDougall v. MacDougall Estate [2008] O.J. No. 2930 (S.J.C.), dealt with the issue of adequate provision for proper support under Part V of the Succession Law Reform Act (“SLRA”). The deceased died in 2004...
Challenging A Will Before Death
Posted on September 26, 2008It has commonly been assumed that a will challenge cannot proceed prior to the death of the testator. The will speaks only upon the death of the testator, and a testator enjoys testamentary freedom to revise or otherwise revoke the will at any time prior to death, or to deal freely with his or her assets...
Payment of Legal Fees
Posted on September 25, 2008Collection of legal fees can be an ongoing issue for lawyers. It is certainly an issue for a Chicago lawyer, who faces a 15 month suspension arising out of matters relating to the payment of his fees. According to a report in the Chicago Tribune, the lawyer provided legal services to a client and members of her family on various matters...
MORE ON MUTUAL WILLS
Posted on September 24, 2008At the October 2007 Hull and Hull Breakfast Seminar, I spoke on the concept of “Mutual Wills”. (See my paper, here.) In a recent decision out of Alberta, the Court again addressed the issue of mutual wills. In Powell v. Glover, [2008] A...
Fiduciary Accounting - Hull on Estates #129
Posted on September 23, 2008Listen to Fiduciary Accounting This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss fiduciary accounting. Who is a fiduciary and what is a fiduciary's duty to account? They cite several cases that illustrate fiduciary accounting rules: Re Taerk, [1975] O...
Will Challenge Litigation - Part 6 - Hull on Estate and Succession Planning
Posted on September 23, 2008Or, listen to Will Challenge Litigation - Part 6 by clicking here. This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step. They pick up where they left off last week by addressing undue influence...
COMING SOON TO AN ORDER GIVING DIRECTIONS NEAR YOU
Posted on September 23, 2008While I was in Court in Toronto on Friday, Mr. Justice Brown advised the court room in general that with respect to most Orders Giving Directions granted by him (and possibly other judges on the Estates List), the Order Giving Directions will include a Schedule that provides that the Applicant is to file with the Estates Office a tabbed, three ring, red 1” binder labelled “Endorsements/Orders Brief”, which is to be maintained as part of the record of the proceeding...
STAMP = SIGNATURE?
Posted on September 22, 2008Does the act of a paraplegic testator in stamping his will with a stamp bearing his name constitute the act of signing the will within the meaning of section 4(1)(a) of the Succession Law Reform Act (“SLRA”)? That was the question that was posed to the Honourable Justice D...
Prosper and Live Long
Posted on September 19, 2008Comparisons of life expectancy across different regions of Canada suggest that Southern, Urban dwellers in mid-size cities tend to live the longest. Northern groups, particularly those with large aboriginal segments, tend to face a much grimmer situation, according to this 2000 article,living approximately 4 years less on average...
Sharia and the Common Law
Posted on September 18, 2008The UK, home of the Common Law, seems willing to experiment with alternatives under certain conditions. Elements of Sharia law are apparently making inroads into some areas, most notably family law and estate law. In early 2008, the Archbishop of the Church of England suggested that the incorporation of elements of Islamic law into the English polity was unavoidable, causing quite a stir before being echoed by a top judge...
Death: Wrongful but not actionable (in Ontario)
Posted on September 17, 2008Wrongful death does not give rise to a claim under Ontario law. Section 38(1) of Ontario’s Trustee Act states in part that “if death results from such injuries no damages shall be allowed for the death or for the loss of the expectation of life”...
Will Challenge Litigation - Part 5 - Hull on Estate and Succession Planning
Posted on September 16, 2008Or, listen to the audio version of Will Challenge Litigation - Part 5 This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step. They continue to discuss the process of will challenges in closer detail...
Attorneyship Issues - Hull on Estates Podcast #128
Posted on September 16, 2008Listen to Attorneyship Issues Natalia Angelini and Chris Graham discuss attorneyship issues - specifically solicitor's liability with respect to powers of attorney and an attorney's duty to account. Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.
Stop the news, I want to get off!
Posted on September 16, 2008Boy, does August ever seem sleepy and restful in retrospect. After a summer in which the Beijing Olympics was probably the major story, the first two weeks of September have served to snap Canadians and Americans out of their reverie. Consider the following developments, all crammed into just over three weeks: - The US Democratic Convention, featuring the first African-American candidate on any US presidential ticket (and by my hasty reckoning the first black candidate with a strong chance to win executive office anywhere in the entire Western World), takes place from August 25 to August 28; - The US Republican Convention, featuring the first female candidate on a Republican ticket, and only the second in history, takes place from September 1 to 4; - Canadian Federal Election commences; - Hurricane Ike hits Texas; and - Financial turmoil hits the markets...
Sleepless Nights
Posted on September 15, 2008Here’s a story from Calgary that will make every lawyer tremble documenting the conviction of a mother of three, and assistant at a law firm, for misappropriating $1.4 million from the firm’s trust account. A great reminder of the need to restrict access to a trust account and exercise vigilance in who can access it...
The All-Powerful Constructive Trust
Posted on September 12, 2008In Langston v. Landen, a recent decision of the Ontario Court of Appeal, one of three co-executors of an estate having a value of some $24 million (in the words of the Court) "managed to shunt the other two executors to the sidelines...
Georgia on My Mind
Posted on September 11, 2008In 1949, Georgia O'Keeffe donated the Alfred Stieglitz Collection of Modern American and European Art to Fisk University ("Fisk") in Nashville, Tennessee. O'Keeffe, as executor of her late husband's estate, divided his collection of paintings, sculptures, prints and photographs and donated the nearly 1,000 pieces to six institutions, including Fisk...
The Limitations of a Notice of Contestation
Posted on September 10, 2008Sections 44 and 45 of the Estates Act provide a summary procedure for the determination of claims and demands against estates. Certainly in my experience, this procedure would appear to be relatively seldom used. However, the possibly draconian effect of a Notice of Contestation is an important consideration for any solicitor asserting a claim against a client...
Will Challenge Litigation - Part 4 - Hull on Estate and Succession Planning Video Podcast #129
Posted on September 10, 2008This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step. They continue to discuss the value of the discovery process and intense investigation. The goal is to get to the mediation process as soon as possible...
A "Lightbulb" Moment
Posted on September 09, 2008"Your worth consists in what you are and not in what you have." --- Thomas Edison Considered one of the most prolific inventors in history, Thomas Edison held over a thousand U.S. patents in his name (click here for a full list of all 1,093 patents)...
Will Challenge Litigation - Part 4 - Hull on Estate and Succession Planning
Posted on September 09, 2008Listen to Will Challenge Litigation Part 4 This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step. They continue to discuss the value of the discovery process and intense investigation...
Variation of Trusts - Hull on Estates Podcast #127
Posted on September 09, 2008Listen to Variation of Trusts Craig Vander Zee and Bianca La Neve discuss variation of trusts, with an emphasis on the Variation of Trusts Act and approval of variations of trusts on behalf of minor, unascertained, unborn or contingent beneficiaries. The well-known case of R...
25, 72, 44, 6 and 24 - not your weekend lottery numbers
Posted on September 08, 2008My wife has a not-so-secret crush on Dr. Sanjay Gupta. In late May, three and a half months prior to 72 yr old John McCain's shocking selection of his 44 yr old running mate, my wife caught a Dr. Gupta special on CNN called "The First Patient"...
More on McAllister - the Removal of a Trustee
Posted on September 05, 2008Yesterday I blogged on the decision in McAllister v. Hudgin and the issue of when and how a trustee has a duty to account. In its decision, the court also considered the removal of a trustee. In McAllister, the applicant had argued that the trustee was in a conflict of interest...
To What Extent Must an Attorney Keep Accounts?
Posted on September 04, 2008The recent decision in McAllister Estate v. Hudgin provides a helpful review of the nature of a trustee’s duty to account. In McAllister, the Deceased named her daughter as her estate trustee and divided the residue of her estate between her daughter and her son...
"Jewish Clause" Causes Family Fued
Posted on September 03, 2008A recent case in the United States explored the effect of a provision in a will that disinherited beneficiaries who married outside their religion. In re Estate of Max Feinberg involved a Jewish dentist who, in his will, had established a testamentary trust to divide his assets...
Helmley's Dog Trouble Forced to Get by on Less
Posted on September 02, 2008As I have blogged about before, when Leona Helmsley died, she left a $12 million trust for the benefit of her beloved Maltese, Trouble. After her death, Trouble’s guardians designated in Ms. Helmsley’s will declined to act, and the general manager from one of her hotels agreed to step up and fulfil the role...
Tracking Down Heirs - Hull on Estates #126
Posted on September 02, 2008Listen to Tracking Down Heirs This week on Hull on Estates, Diane Vieira and Rick Bickhram discuss the issue of when an estate trustee is responsible to search for potential heirs to an estate. Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.
Will Challenge Litigation - Part 3 - Hull on Estate and Succession Planning
Posted on September 02, 2008Listen to Will Challenge Litigation - Part 3 This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step. They discuss what happens during the Discovery process and explore what Mediation is and how it works...
To Vary a Trust or Not to Vary a Trust: Does a Statute have an Answer?
Posted on August 29, 2008Those wishing to vary a trust in Ontario, can look to the Variation of Trusts Act (R.S.O. 1990, c. V.1) (Act) for the authority to do so. Although the Act is surprisingly only one section in length, don’t let the length fool you. Essentially, the Act permits the Court to approve a variation of a trust under a will, settlement or other disposition on behalf of minor, unascertained, unborn or contingent beneficiaries if the variation, in the words of the Act, “appears to be for the benefit” of those persons...
Son Wants Nazi Father Declared Dead
Posted on August 28, 2008The son of the notorious Nazi criminal Aribert Heim wants his father declared dead so that he and his siblings can manage his father’s assets. Aribert Heim fled Germany in 1962 when a warrant was issued for his arrest. The Simon Wiesenthal Centre has been tracking him since that time but has never captured him...
Re McMichael Estate: Clarifying Jurisdiction Issues
Posted on August 27, 2008A new Ontario decision, Re McMichael Estate confirms the need for estate trustees to seek relief in the jurisdiction where the testator resided at the time of their death. The background to the case is as follows. The wife died in Toronto. She was predeceased by her husband who died in Orangeville...
Will Challenge Litigation - Part 2 - Hull on Estate
Posted on August 26, 2008Listen to Will Challenge Litigation - Part 2 This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step. They cover how a comprehensive preliminary investigation can help litigation and discuss how a motion of claim is filed to set the stage to move forward with a trial...
Estate Planning for the Newly Separated Spouse - Hull on Estates Podcast #125
Posted on August 26, 2008Listen to Estate Planning for the Newly Separated Spouse This week on Hull on Estates, Ian and Suzana bring us up to date on what has been happening at Hull and Hull over the summer. Jordan Atin appeared on Canada AM to talk about how to avoid The Family War...
The Lord Beaverbrook Saga Continues
Posted on August 26, 2008Previously, David Smith has blogged on the dispute between the Beaverbrook Art Gallery in Fredericton, New Brunswick and the Beaverbrook U.K. Foundation with respect to the ownership of the paintings and sculptures owned by the late Lord Beaverbrook. Click here to read about the background to this dispute and here to read about the costs awarded to the gallery...
Finding Legal Information Online
Posted on August 25, 2008An abundance of legal information is available online and a new customized search engine that searches for content from law firms has become available. We often begin a search for online information by searching Google or a similar general search engine...
The Olympics from a Legal Perspective
Posted on August 22, 2008The Beijing Olympic Games come to a close this weekend and the international sports community turns their attention to the 2010 Vancouver Games and the 2012 London Games. The Olympics inspire a multitude of feelings and generate a healthy amount of debate...
Just Because You Say So Doesn't Make It So
Posted on August 21, 2008The approach taken in claims by or against the heirs, next of kin, executors, administrators or assigns of a deceased can differ from other types of legal proceedings simply because the requirements of Section 13 of the Ontario Evidence Act. Section 13 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 to any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence...
Passing of Accounts and Conflicts of Interest
Posted on August 20, 2008On a contested passing of accounts, counsel may be requested to represent two or more clients, such as multiple beneficiaries of an estate or co-estate trustees. In such cases, it is critical to ensure that a conflict of interest does not exist. When counsel first meets with potential multiple clients their respective interests may well be perfectly aligned and identical and it may not appear that there is a potential conflict of interest...
Upcoming Continuing Legal Education Events
Posted on August 19, 2008There are several interesting continuing legal education (CLE) events coming up in September and October 2008 that I wanted to mention as summer draws to a close and we look to the fall. One is an Ontario Bar Association (OBA) full day program on September 23, 2008 commencing at 9:00 a...
Passing of Accounts and a Joint Retainer - Hull on Estates #124
Posted on August 19, 2008Listen to Passing of Accounts and a Joint Retainer This week on Hull on Estates, Craig Vander Zee and David Smith discuss conflicts of interest during Passing of Accounts trials and rules of professional conduct. Comments? Send us an email at hull...
Will Challenge Litigation - Part 1 - Hull on Estate and Succession Planning
Posted on August 19, 2008Listen to Will Challenge Litigation - Part 1 This week on Hull and Estates, Ian and Suzana kick off their new video format.This podcast is an audio version of the video podcast that is available on YouTube here: http://www.youtube.com/watch?v=udEcTpLFIkk This week's episode also marks the beginning of a new segment that tackles Will Challenge Litigation step-by-step...
Day Eleven of the Olympics and Counting
Posted on August 18, 2008Today, if I have my count right, is day eleven of the Olympics. For certain, the Olympics stimulate debate on a spectrum of important social, political, economic and, of course, athletic issues of our time. I do not intend to touch upon those debates...
RULE 38.10 - TRIAL OF AN ISSUE
Posted on August 15, 2008Many estate litigation proceedings start by way of an application. However, from a practical and legal standpoint, contentious applications should be converted to a trial of an issue(s). Where the parties agree that credibility is at the heart of an application, a trial is warranted...
"I HAVE A DREAM" (OR NOT) - ESTATE LITIGATION UNCHECKED
Posted on August 14, 2008The superrich likely have the market cornered when it comes to epic estate battles - Howard Hughes, J. Howard Marshall (i.e. Anna Nicole Smith), and E. Howard Hunt (of silver fame) - quickly come to mind. However, even the mildly famous or sainted can have their moment in the estate spotlight...
The Lion of Africa - An Evolving Legacy
Posted on August 13, 2008I suppose that there are three ways to approach estate planning: (1) do nothing; (2) plan for the efficient and effective administration of one’s estate; or (3) create a legacy. Creating a legacy is by far the most romantic, but, in fairness, often requires a considerable amount of wealth (though that too is changing with private and community foundations)...
The Golubchuk Case and the Health Care Consent Act - Hull on Estates #123
Posted on August 12, 2008Listen to the Health Care Consent Act.This week on Hull on Estates, Megan Connolly and Sean Graham review the Golubchuk case out of Manitoba and discuss the Health Care Consent Act of Ontario.Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.
Deductions from Compensation - Hull on Estates and Succession Planning Podcast #125
Posted on August 12, 2008Listen to Deductions from Compensation.This week on Hull on Estates and Succession Planning, Ian and Suzana finish up the discussion on the question of accounting by reviewing deductions from compensation and briefly sum up the procedure of the passing of accounts...
Guardianship Applications: Strong and Compelling Evidence
Posted on August 12, 2008I am often approached by clients who are anxious to replace a relative’s attorney for property or personal care on the basis that the attorney is a non-family member or simply not up to the job. Many family members feel it is their right to take over the guardianship of a relative, especially a loved one...
Interim Cost Awards
Posted on August 11, 2008Welcome to my week of blogs.An issue that can crop up in estate litigation is whether a party is entitled to interim payment of costs payable out of the estate. The reason for such an order is to fund litigation, such as a will challenge, out of the largesse of the estate...
The Power of the Public Guardian and Trustee
Posted on August 08, 2008Last night, I overheard a distressed woman confiding to a friend about a relative who was declared incapable of managing her property. The Public Guardian and Trustee (“PGT”) had stepped into her shoes to take control and to care for her property...
Who Has Standing to Bring a Will Challenge?
Posted on August 07, 2008As I am sipping on my coffee this morning, I am thinking to myself, who can commence a will challenge? A will challenge can be commenced pursuant to 75.06(1) of the Rules of Civil Procedure. Rule 75.06(1) is a procedural remedy that permits any person who appears to have a financial interest in an estate to apply for directions or move for directions in another proceeding...
OH NO, the Residual Gift Has Lapsed. Now What?
Posted on August 06, 2008Yesterday, I considered the issue of failed bequests and devises, however I was left scratching my head when I considered the issue of residual gifts that have failed. As I considered yesterday, Section 23 of the Succession Law Reform Act, does not apply to failed residual gifts...
Calculating Compensation - Hull on Estate and Succession Planning #124
Posted on August 05, 2008Listen to Calculating Compensation This week, Ian and Suzana discuss the number of emails they received last week about cross-reference analysis and compensation. Ian references 5 cases that are important to this subject: 1. Logan vs Laing - Ontario Court of Appeal2...
Settlement Issues - Hull on Estates #122
Posted on August 05, 2008Listen to Settlement Issues This week on Hull on Estates, Paul Trudelle and Christopher Graham talk about settlement issues - considerations that you have to take into account and the potential implications of not settling. Comments? Send us an email at hull...
Does a Lapsed Gift Fail?
Posted on August 05, 2008There is the view by some that issues surrounding the interpretations of Wills can be mind-numbing. From time to time I tend to enjoy dusting off my book of consolidated estate statutes and reviewing some of the basic tenets of estate law, which makes our area of practice so dynamic...
Blogging, Virtual Law Offices and ... Fly Fishing?
Posted on August 01, 2008Hard as I tried, I was unable to find any noteworthy connection between these things! But as I cast my fishing rod yesterday out in my favorite Bay in Prince Edward Island (I've been working from my summer cottage the past couple of weeks), I marveled at how accessible technology has made working away from what we've all come to define as the traditional "office"...
New "Facebook" Trusts and Estate Attorneys Group Formed
Posted on July 31, 2008Estate lawyers now have another reason to consider opening a Facebook account, that is if they haven't already done so. A new Facebook group for estate practitioners has been created south of the border by estate attorney Jill L. Miller of Jill Miller & Associates P...
Preparing for your Estate Planning Meeting
Posted on July 30, 2008"I say to you: Make Perfect Your Will. I say: Take no thought of the harvest. But only of the proper sowing". T.S. Eliot, Choruses from the Rock.These words, written a century ago, still resonate today. Careful estate planning can ensure the most effective transfer of wealth to the next generation...
The Absentee Act - Hull on Estates #121
Posted on July 30, 2008Listen to The Absentee ActThis week on Hull on Estates, Christopher Graham and David Smith talk about The Absentee Act and some of the different scenarios that it applies to.Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.
The Emotional Toll of Estate Planning
Posted on July 29, 2008The very thought of planning for one's death can be an emotional and anxious time for clients hoping to create an estate plan. Questions such as "who do I trust enough to be my executor?" and "who will care for my children after I'm gone?" are difficult ones to ask, and often even more difficult to answer...
The Question of Compensation and Complaints - Hull on Estate and Succession Planning Podcast #123
Posted on July 29, 2008Listen to The Question of Compensation and Complaints.This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the question of compensation and complaints regarding compensation.Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.
A Good Year to Die?
Posted on July 28, 2008An interesting controversy has been brewing in the United States on the issue of estate tax in the year 2010. Estate tax in the United States is a tax imposed on the transfer of the "taxable estate" of a deceased person, including those cases where property is transferred via a will or the laws of intestacy...
Dominican Friars Spotted in Manitoba
Posted on July 25, 2008My last blog this week examines the application of our favourite Rule 57.07 - Liability of Solicitor for Costs - in the context of affidavits. We (and our clients) have all suffered through The Angry Affidavit. In Manitoba, which has comparable legislative provisions authorizing and governing cost awards, drafting such an affidavit can be expensive for the drafting lawyer...
Rule 74.14(2): Short-Cut to Probate
Posted on July 24, 2008There seems to be a rule for every situation in estates litigation. Consider the oft-ignored Rule 74.14(2), the short-cut to probate rule.Probate applications are refused where the application material raises legal issues. Normally, the next step is to bring a motion for directions to have a judge rule on the legal issues raised by the application...
The Horror: Sean Connery's Son Required to Get a Job
Posted on July 23, 2008Imagine that one day, you were told you had to get a job. You were told to go make a living, and that hard work was good. Not only that, you would have to work FOR THE REST OF YOUR LIFE. According to virtually every news source in the British Isles, that's exactly what Sir Sean Connery is being accused of doing to his only son, Jason...
Privacy vs. PIPEDA: Solicitor-Client Privilege Wins
Posted on July 22, 2008When an irresistable force meets an immovable object, we appeal to the Supreme Court of Canada. In Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, the force is the Personal Information Protection of Electronic Documents Act ("PIPEDA") and the object is solicitor-client privilege...
Developments in Will Changes - Hull on Estates #120
Posted on July 22, 2008Listen to Developments in Will Changes. This week on Hull on Estates, Ian and Suzana discuss developments in will changes. They reference cases from Key Developments in Estates and Trusts Law in Ontario ed. 2008.Comments? Send us an email at hull.lawyers@gmail...
Cases for Increasing and Decreasing Compensation - Hull on Estates and Succession Planning podcast #122
Posted on July 22, 2008Listen to Cases for Increasing and Decreasing Compensation. This week on Hull on Estates and Succession Planning, Ian and Suzana discuss cases for increasing and decreasing compensation. Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.
A Bronx Story: $20 million lost by public administrators
Posted on July 21, 2008Speaking of risky U.S. investments...Public administrators of estate monies appear to have lost around $20,000,000. The place? The Bronx, NY. When a New York resident dies intestate (without a will), his or her assets are managed by these public administrators until there is a court-approved settlement...
BCE Shares: Charities Seize the Opportunity
Posted on July 18, 2008If you have recently gone on to your favourite charity’s website or received correspondence from a charity you donate to, you will likely notice an advertisement asking if you own BCE shares. The privatization of BCE shares means that some shareholders are now looking for a way to minimize their tax liabilities from the sale of shares...
Joint Accounts: When a Sibling is the Surviving Account Holder
Posted on July 17, 2008In a recent Ontario decision, Tiedemann v Tiedemann, the court considered whether the deceased had intended to gift to his sister the balance of funds in a joint account held by the both of them. The sister argued that her brother intended to gift to her the balance of the funds as he did not have a good relationship with his son...
Accounting Concepts and Definitions - Hull on Estate and Succession Planning #121
Posted on July 16, 2008Listen to Accounting Concepts and Definitions This week on Hull on Estate and Succession Planning, Ian and Suzana talk about accounting concepts and definitions after receiving requests from listeners to outline a more general framework for estate administration...
Blackberries: Hazardous to your Health?
Posted on July 16, 2008Blackberries and iPhones have been in the news a lot lately. These communication devices seem to have become irreplaceable for many Canadians and their frequent use is having an impact on the work place. This past Monday, the Globe & Mail carried a story about the potential health impacts of the chronic use of these devices...
Strategies to Prevent Estate Litigation - Hull on Estates #119
Posted on July 15, 2008Listen to Strategies to Prevent Estate Litigation This week on Hull on Estates, Natalia Angelini and Rick Bickhram discuss tools and strategies to prevent estate litigation. Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.
A Look at Law Related Podcasts
Posted on July 15, 2008As you probably know, Hull and Hull LLP produces two weekly podcasts that discuss issues related to the estates area and estate and succession planning. Podcasting has certainly grown in the last year and there is a lot of content out there. To learn more about our firm’s use of this social medium, read Suzana Popovic-Montag’s and Ian Hull’s blog on podcasting...
Widow sues her own children for a greater share of her husband's estate
Posted on July 14, 2008A widow in the United Kingdom is suing her two children, her one-year-old son and three-year old-daughter, over her late husband’s estate. Taryn Dielle launched an action in London’s High Court claiming that the country’s intestacy laws do not provide her with enough money to care for her children...
GOLF AND ESTATES
Posted on July 11, 2008Looking out of our office window on such a beautiful summer day, my mind drifted from blogging to golfing. I then struggled to make a connection between the world of trusts and estates, and thoughts of golfing.The one thing that immediately came to mind was the comment of Rodney Dangerfield’s character Al Czervic from the movie “Caddyshack” that “Golf courses and cemeteries are the biggest waste of prime real estate in America...
ARBITRATION OF LEGAL ACCOUNTS
Posted on July 10, 2008Recently, the Ontario Superior Court of Justice struck down an arbitration clause in a retainer agreement.In Jean Estate v. Wires Jolley LLP 2008 CanLII 14538, an estate trustee and sole beneficiary of an estate entered into a retainer agreement with counsel that provided for a “success fee” of 10% of the value of the estate...
RESOMATION
Posted on July 09, 2008A few of our past blogs discussed eco-friendly or other alternatives to a natural burial. (See Eco-Funerals - Green to the Grave and Natural Burial.) In researching an issue regarding cremation and the scattering of ashes, I came across yet another alternative: resomation...
EVEN MORE DISAPPOINTED BENEFICIARIES
Posted on July 08, 2008The common law in Ontario now appears to clearly provide for claims by “disappointed beneficiaries” against drafting solicitors where a bequest to a beneficiary fails as a result of the negligence of the solicitor. (See Harrison v. Fallis, 2006 CanLII 19457 (ON S...
Investment Account Issues and Considerations
Posted on July 08, 2008Listen to Investment Account Issues and ConsiderationsThis week on Hull on Estate and Succession Planning, Ian and Suzana talk about how good trustees deal with accounting issues in volatile markets and other investment considerations. Comments? Send us an email at hullandhull@gmail...
Real Estate Transactions Involving Powers of Attorney
Posted on July 07, 2008In order to attempt to combat what is felt to be a growing problem of real estate fraud, the Ontario government has put new registration requirements in place when a real estate document is being registered.The requirements call for the making of certain “law statements” by an individual registering a real estate document (transfer or mortgage) under the authority of a power of attorney...
Declarations of Death Act - Hull on Estates Podcast #118
Posted on July 07, 2008Listen to Declarations of Death Act This week on Hull on Estates, Sean Graham and Rick Bickhram talk about the Declarations of Death Act. They discuss what happens when a person goes missing from a jurisdiction and some possible remedies. Comments? Send us an email at hull...
Will the Great Wealth Transfer Be Not So Great?
Posted on July 04, 2008Estate practitioners are fond of discussing the “unprecedented transfer of wealth” that is set to occur over the next few decades. The idea is that as the asset-rich baby boomers age and pass away, the number of estates being distributed (and the size of the estates) will be at a level never before seen...
Is a Billionaire's Estate Going to the Dogs?
Posted on July 03, 2008Leona Helmsley, the deceased billionaire hotelier who, in her will, left her dog Trouble a $12 million trust, is back in the news. Also in her will, Ms. Helmsley directed that the bulk of her estate (estimated to be worth somewhere between $5 billion - $8 billion) be put into a charitable trust...
Man at Centre of Life Support Dispute Dies
Posted on July 02, 2008Samuel Golubchuk, the critically-ill 84 year old Orthodox Jew, who was at the centre of a fight over whether to remove him from life support, died last week. Justin de Vries first blogged on the case in January and I wrote a follow up blog in February of this year...
Delegation in Investment Accounts - Hull on Estate and Succession Planning Podcast #119
Posted on July 01, 2008Listen to Delegation in Investment AccountsThis week on Hull on Estate and Succession Planning, Ian and Suzana discuss delegation issues that arise when dealing with Investment Accounts and address a listeners question about the family cottage. Comments? Send us an email at hullandhull@gmail...
Dependent Relief and the Succession Law Reform Act - Hull on Estates #117
Posted on July 01, 2008Listen to dependent relief. This week on Hull on Estates, Natalia Angelini and Craig Vander-Zee discuss dependent relief and reference a variety of cases that utilized the Succession Law Reform Act. Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.
Man at the Centre of Life Support Dispute Dies
Posted on July 01, 2008Samuel Golubchuk, the critically-ill 84 year old Orthodox Jew, who was at the centre of a fight over whether to remove him from life support, died last week. Justin de Vries first blogged on the case in January and I wrote a follow up blog in February of this year...
Métis Group Weighs in on Burial Dispute
Posted on June 30, 2008In May, I wrote a blog about a battle between the wife of a dead RCMP officer and his mother over the burial place of his remains. The wife learned about a policy allowing an officer to be buried in the RCMP national cemetery and applied to the Director of Vital Statistics for permission to move the deceased’s body from its current place of burial (near his hometown) to the RCMP national cemetery in Saskatchewan...
Planners for Pets
Posted on June 27, 2008I recall a good deal of discussion when Leona Helmsley left millions to be held in trust in her Will last year, some of it on the Hull & Hull blogs and podcasts.Well, the website for Estate Planning for Pets provides some interesting reading in this vein, although the kind of trust established by Ms...
Mental Illness - Crisis?
Posted on June 26, 2008There is no question that mental illness for the afflicted and families can be devastating. The Globe and Mail helps to address the national scale of these illnesses in its recent excellent series entitled “Breakdown: Canada’s Mental Health Crisis”...
Same Person, Different Interests
Posted on June 25, 2008A person with more than one set of distinct interests or roles in the same estate may have a conflict of interest. This can create all sorts of problems and issues in an estate administration and is a driving concept in much estate litigation.Say Joe Smith is the executor of an estate but also received gifts from his mother the testator during her lifetime...
Compensation for Work Done by Estate Trustees and Solicitors - Hull on Estates #116
Posted on June 24, 2008Listen to Compensation for work done by estate trustees and solicitors.This week on Hull on Estates, Paul Trudelle and Diane Vieira discuss compensation for work done by estate trustees and estate solicitors. Comments? Send us an email at hull.lawyers@gmail...
The Investment Accounts - Hull on Estates and Succession Planning Podcast #118
Posted on June 24, 2008Listen to The Investment Accounts.This week on Hull on Estates and Succession Planning, Ian and Suzana conduct a quick lesson on capital encroachment and discuss the role of investment accounts in the passing of accounts. Comments? Send us an email at hullandhull@gmail...
Tech Toys
Posted on June 24, 2008Being somewhat of a late convert to the idea of taking advantage of the myriad of small-scale technological devices invading the business and legal milieus, I get to enjoy innovations long after other people have become blasé.The ability to work from home through gotomypc is, I think, my favourite...
Summer Days
Posted on June 23, 2008Ah, summer is upon us, and not a moment too soon. After what seemed like the longest Spring I can remember, we finally had our first genuine summer weekend.School’s one week from being OVER, and kids are so eager they can taste the two full months of freedom headed their way...
Polygamy and Estate Planning
Posted on June 20, 2008Estate planning and litigation professionals are still mulling over how the legalization of same-sex marriage will affect their practices. Even more complex developments may be in the offing. An allegedly polygamist community in British Columbia and increased concerns about the possibility of polygamy elsewhere in all but name in other regions of the country raise any number of issues, not only of policy, but also estate planning...
Double Legacies - A Trap to Avoid
Posted on June 20, 2008Spouses commonly execute virtually identical Wills, called “mutual wills”, on the assumption that each will give the same gifts on death out of the same “family” pool of property. Oftentimes the residue of the estate of the first spouse to die is left to the surviving spouse, as long as he or she lives at least 30 days after the death...
Mediation Revisited
Posted on June 18, 2008Mediation continues to be all the rage in Estate litigation in Toronto matters, and is increasingly common outside Toronto as well. (For background on Mediation in general, see here.)Mediation no doubt sounds very conciliatory and cooperative, and in an ideal world it might be...
The Capital Account - Hull on Estate and Succession Planning #117
Posted on June 17, 2008Listen to The Capital Account This week on Hull on Estate and Succession Planning, Ian and Suzanna talk about taking capital out of an account and what to consider along the way. Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.
Becoming an Executor after Death - Hull on Estates #115
Posted on June 17, 2008Listen to becoming an executor after death. This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag, discuss becoming an executor after death and three issues that must be addressed immediately. Comments? Send us an email at hull.lawyers@gmail...
Burns Estate v. Mellon
Posted on June 17, 2008Yesterday I talked about Section 13 of the Evidence Act (Ontario), which mandates that before someone can bring a claim by or on behalf of an Estate, he or she must have some corroborative evidence. The standard of evidence required was dealt with by the Ontario Court of Appeal in Burns Estate v...
Claims By or Against Estates
Posted on June 16, 2008Lawsuits by and against estates often lead to arguments that there is no evidence to support the allegations. It seems to me this is part and parcel of the inherent difficulty in such lawsuits caused by the fact that one of if not the most important witnesses – the deceased - is unavailable...
Beyond Cummings: Simpson v. Leardi
Posted on June 13, 2008Today’s blog is the third in my series this week on cases in the post Cummings v. Cummings era. Today’s case is Simpson v. Leardi, [2005] O.J. No. 4282 (Ont. S.C.J.). In Simpson, the deceased had left a substantial estate. The plaintiff had brought an Application pursuant to the Succession Law Reform Act seeking support in the amount of $3,750 per month...
Same-Sex Marriages and their Impact on Estate Law and Administration - Hull on Estates #114
Posted on June 12, 2008Listen to Same-Sex Marriages and their Impact on Estate Law and Administration. This week on Hull and Estates, Rick Bickhram and David Smith discuss how changes in the definition of marriage have impacted Estate Law and Estate Administration. Comments? Send us an email at hull...
Beyond Cummings: Reid v. Reid
Posted on June 12, 2008In yesterday’s blog I noted that in today’s blog I would mention another dependant support case decided in the post Cummings v. Cummings era. In Reid v. Reid, [2005] O.J. No. 2359 (Ont. S.C.J.), [2008] O.J. No. 826 (Ont. Div. Ct.), the deceased was survived by her son, her daughter and her daughter’s two children (the deceased’s grandchildren)...
Beyond Cummings
Posted on June 11, 2008The Succession Law Reform Act (“SLRA”) governs the rights of beneficiaries to receive support and other benefits on death.In Cummings v. Cummings, [2003] 5 E.T.R (3d) 81 (Ont. S.C.J.); affirmed [2004] 69 O.R. (3d) 398 (Ont. C.A.), Ontario’s Court of Appeal held that when examining all of the circumstances of an Application for Dependant’s Relief under the SLRA, the Court is entitled to take into account not only the needs of the dependants but the moral obligation of the deceased to those dependants...
Dealing with Estate Planning - Hull on Estates and Succession Planning Podcast #116
Posted on June 10, 2008Listen to Dealing with Estate Planning This week on Hull on Estate and Succession Planning, Ian and Suzanna discuss dealing with estate planning and encouraging everyone to draw up a will. Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.
OBA Trusts and Estates Section Executive
Posted on June 10, 2008In yesterday’s blog, I mentioned that the election of the Ontario Bar Association (OBA), Trusts and Estates Section Executive for the year 2008-2009 was confirmed at the Sections’ year end dinner on May 27, 2008. Kimberly Whaley is the incoming Chair of the Executive with Suzana Popovic-Montag as Vice-Chair...
OBA Trusts and Estates Section Year End Dinner
Posted on June 09, 2008The Ontario Bar Association (OBA), Trusts and Estates Section, year end dinner was held on May 27, 2007 at the Gardiner Museum in Toronto. Jordan Atin, the Chair of the Section for the past year, brought the past year to a close and the election of the OBA, Trusts and Estates Section Executive for the 2007/2008 year, was confirmed...
10th Annual Conference of Society of Trust and Estate Practitioners
Posted on June 06, 2008The annual conference of Society of Trust and Estate Practitioners is upon us. Yesterday’s full day of interesting talks was capped off with a tenth anniversary gala dinner at The Royal York. It was great to see a full house of estate, trust, accounting and tax practitioners decked out in their finest to enjoy an evening wither their peers, and honouring the lifetime achievements of Professor Emeritus Donovan Waters...
Hull & Hull LLP Estate, Trust and Capacity Law Breakfast Series
Posted on June 05, 2008Yesterday, Hull & Hull LLP hosted one of its informative Breakfast Series. David Smith started off the seminar with a talk on the challenge of exercising an estate’s controlling interest in private corporations. His discussion included the following observations:- the obligation of an estate trustee to exercise his or her controlling interest is that of a “reasonably prudent businessman”- the trustee must determine the value of the company in as timely a manner as possible- depending on the wording of the Will, the trustee must provide for the company’s continuation, sale or liquidation - in order for the trustee to make such a decision he/she should review the Will, financial statements and corporate records, and should inquire with individuals who have knowledge of the company’s affairs including beneficiaries, family, directors, shareholders, employees, solicitors, accountants and bankers- it is advisable for a trustee to have an active role in management by, among other things, sitting on the board of directors (despite there being no legal obligation to do so)Sean Graham followed with a discussion on evidence in estate litigation, and Ian Hull spoke about interesting case law developments...
Waiver of the Solicitor and Client Privilege
Posted on June 04, 2008In Schwartz Estate v. Kwinter the divorce of the mother and father in 1996 divided the family, with one daughter, Elaine, siding with the father and the other daughter, Shelley, siding with the mother. The father then made new Wills giving everything to Elaine, and the mother likewise made new Wills giving everything to Shelley...
Capital Disbursement - Hull on Esate and Succession Planning #115
Posted on June 03, 2008Listen to Capital DisbursementThis week on Hull on Estate and Succession Planning, Ian and Suzana follow up with their discussion on passing accounts. They focus on obstacles that often get in the way of smooth transactions particularly capital disbursement and encroaching on captial...
Accounting Under the Powers of Attorney - Hull on Estates #113
Posted on June 03, 2008Listen to Accounting Under the Powers of Attorney This week on Hull on Estates, Diane and Ian discuss accounting under the powers or attorney, the duty to account after the guarantor has passed away and the De Zorzi Estate v. Read case (2008, O.J. No...
Summary Trial
Posted on June 03, 2008In a recent edition of the OBA Estates and Trusts Section newsletter, Deadbeat, Justin de Vries wrote an article commenting on the summary trial and how it can be a way to curb the costs of estate litigation (in claims of $50,000 or less). This article is worth a read, and I thought in today's blog I would add my voice to his chorus...
Support Contracts and Second Marriages
Posted on June 02, 2008Soulsbury v. Soulsbury is an interesting appeal from a decision of the Central London County Court about a contract dispute involving a divorced couple. The couple had been married for 20 years, and after the breakdown of their marriage the ex-husband was ordered to make periodic payments to the ex-wife...
Battle Over Mountie's Remains Likely to Continue
Posted on May 30, 2008The Alberta Court of Appeal recently released its decision in Johnston v. Alberta (Director of Vital Statistics), a case I had been following about the burial of a deceased RCMP officer who had been killed in the line of duty. The mountie, who was killed along with three other officers in 2005, was buried in his home town in Alberta...
Law Society Establishes New Client Identification and Verification Requirements
Posted on May 29, 2008Recently, convocation at the Law Society of Upper Canada approved an amendment to By-Law 7.1 [Operational Obligations and Responsibilities] that has the effect of establishing stricter guidelines with respect to client identification and verification...
To Whom Does an Attorney Have a Duty to Account?
Posted on May 28, 2008An interesting decision was recently released relating to an attorney’s obligation to account to people other than the estate trustee of a (deceased) grantor’s estate. In Guerin v. Read, the deceased died in December 2004. The residual beneficiaries of her estate sought an order requiring the estate trustee to provide disclosure of the deceased’s financial documents from January 2004 to the deceased’s death or, in the alternative, that the estate trustee pass accounts for the period in which she acted as the deceased’s attorney for property; that is, September 2004 to the deceased’s death...
Reminder About our June 4 Breakfast Seminar!
Posted on May 27, 2008Just a reminder that our next breakfast series seminar is being held on June 4, 2008. It is being held at the Ontario Bar Association at 20 Toronto Street. There will be presentations on the following topics: "Recent Case Law Developments that Impact an Estate Solicitor's Practice" - by Ian M...
Keeping Good Records - Hull on Estate and Succession Planning Podcast #114
Posted on May 27, 2008Listen to Keeping Good Records This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the importance of keeping good records in order to account for your conduct financially. Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.
Lost Wills - Hull on Estates Podcast #112
Posted on May 27, 2008Listen to Lost Wills This week on Hull on Estates, Paul Trudelle and Megan Connolly talk about the issues surrounding lost wills. Comments? Send us an email at hull.lawyers@gmail.com or leave us a message on our comment line at 206-350-6636. You can also leave a comment on our blog at estatelaw...
Competing Claims to a Family Cottage
Posted on May 26, 2008The 2008 decision in Sheldrake v. Sheldrake provides yet another example of the ways that relatives can fight over a family cottage. In this case, the plaintiff, who was the defendant’s son, brought a claim seeking declarations that he had a beneficial interest in two family cottages to which the defendant held title and that the two cottages were held in trust for the plaintiff’s benefit...
Lost. Found. Loaned?
Posted on May 23, 2008"To visit Machupijchu, you must prepare the soul, sharpen the sense. Forget for some minutes, the small and transcendental problems of our lives, of modern man..." Napoleon Polo, Cuzco Peru. In 1911, Yale history professor Hiram Bingham III stumbled upon Machu Picchu, 'the lost city of the Incas' (click here for an incredible virtual tour)...
A Good Rule of Thumb
Posted on May 22, 2008What he doth, he doth by rule of thumb, and not by art. Sir William Hope. Page 157 of The Compleat Fencing-Master, 1692And therein lies the earliest known citation of the phrase 'rule of thumb', defined by Wikipedia as a 'principle with broad application that is not intended to be strictly accurate for every situation'...
Specialization and Client Service
Posted on May 21, 2008Law firms, such as ours, tend to emphasize the benefits to clients of their respective area of specialization. The common pitch to prospective clients is that there is less of a learning curve on each file and, as a general proposition, most problems have usually (with some variation) been seen before...
Missing and Presumed Dead?...or Just Absent?
Posted on May 20, 2008The issue of when a missing person will be deemed to be deceased was most recently (and prominently) in the news during the search for Steve Fossett. Notwithstanding the relatively short duration of time since his disappearance on September 3, 2007, circumstantial evidence suggested that, on a balance of probabilities, his death was a safe assumption and Fossett was declared legally dead on February 15 , 2008...
Evidence issues in estates when a main party is deceased - Hull on Estates #111
Posted on May 20, 2008Listen to evidence issues in estates when a main party is deceased. This week on Hull on Estates, Rick and Sean discuss evidence issues in estate matters when a main party is deceased. They reference "Burns Estate and Mellon"; a 2000 Court of Appeal Case cited in 34 Estates and Trusts Reports, 2nd Edition, p...
The Formal Passing of Accounts - Hull on Estate and Succession Planning Podcast #113
Posted on May 20, 2008Listen to The Formal Passing of Accounts. This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the specifics of what happens when you have to go to court to formally pass accounts. Comments? Send us and email at hullandhull@gmail...
Eco-Funerals - Green to the Grave
Posted on May 16, 2008We all know of ways to lead a greener life, but how about ways to go green after you leave the Earth? Eco-friendly funerals have been steadily gaining momentum among those who wish to live, and die, in the most environmentally conscious way...
May We Suggest...
Posted on May 15, 2008Hull & Hull's web page now features a new category for "Recommended Reading" under our "Links" page. Check in often for updates that connect our readers to timely and informative reading materials in the estates area...
RESP Designations in Your Will
Posted on May 14, 2008In recent months, I've seen more Wills than usual with provisions for RESP's. Are there advantages to naming a successor to your RESP in your Will, and what are the risks associated with failing to do so? For a background on the many advantages associated with RESP's and investing in your child's future, see here...
Retention of Women in Private Practice
Posted on May 13, 2008The working group of the Law Society of Upper Canada's Convocation recently reported on the issue of retaining women in private practice. The objective of the Report was not to identify the problem but rather to propose constructive and innovative solutions for the legal community...
Accounting - Hull on Estate and Succession Planning #112
Posted on May 13, 2008Listen to Accounting This week on Hull on Estate and Succession Planning, Ian and Suzana discuss how to prepare for review by the beneficiaries of the estate by keeping all accounts in order. To open this week's show, they remind listeners that they did this week's episode of Hull on Estates (#110)...
Talking About Wealth and Personal Finance - Hull on Estates #110
Posted on May 13, 2008Listen to Talking About Wealth and Personal Finance. This week on Hull on Estates Suzanna and Ian review the pullout in March 18th's New York Times and talk about the importance of dialog before and after death. Comments? Send us an email at hull.lawyers@gmail...
Let's "mesh"!
Posted on May 12, 2008Canada's premier web conference is scheduled for May 21st and 22nd in Toronto, although tickets are almost sold out so act quickly if you're planning to attend. Now in its 3rd hugely successful year, mesh aims to connect people with enthusiasm for the web - people who "want to know more about how the web is changing the way we live, work, and interact with the world"...
Go Away And Don't Come Back!
Posted on May 09, 2008"Some day, a wise person in a position of authority will realize that a court of law is not the best forum for deciding custody and access disputes, where principles of common sense masquerade as principles of law." - Mr. Justice Joseph Quinn as quoted in the Globe and Mail...
The Genesis of Trusts (?)
Posted on May 08, 2008The contemporary attitude is that we live in a young country. True in some respects. Yet we own the oldest contiguous institutions. Trusts are one aspect of this venerable inheritance: the trust is as old as the Common Law...
When Living Wills Attack
Posted on May 07, 2008Who can forget the sad case of Terry Schiavo, the poor lady who suffered catastrophic brain damage in 1990 and was kept alive in a vegetative state on a feeding tube for 15 years? Readers will remember the anguish involved when her husband was forced to litigate against her parents in order to get the tube removed so Terry could die in peace...
Remember the Evidence Act!
Posted on May 06, 2008How does one prove a negative? This is a challenge facing many estates: after a person dies, individuals spring forth requesting compensation for services rendered on a quantum meruit basis or alleging that promises were made by the deceased...
Appointing a Guardian - Hull on Estate and Succession Planning Podcast #111
Posted on May 06, 2008Listen to Appointing a Guardian This week on Hull on Estate and Succession Planning, Ian and Suzana talk about appointing a guardian for your children. They also discuss Ian's appearance on BNN's Strictly Legal with Michael Cochrane. If this link does not work in your browser, please copy and paste the following into the address bar: http://broadband...
Passing of Accounts - Hull on Estates Podcast #109
Posted on May 06, 2008Listen to Passing of Accounts This week on Hull on Estates, Diane Vieira and Craig Vander Zee talk about how to avoid conflict during the passing of accounts. Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636 or visit our blog at http://estatelaw...
Bill "Evolves" Between Congressional Vote and President's Signature
Posted on May 04, 2008What happens the Bill a legislature votes for is different than the Bill the Head of State signs?A fascinating story is playing out down south: the U.S. Congress voted for a highway funding bill, which the President later signed into law. But someone altered an "earmark" provision after Congress voted, so the bill the President signed was slightly different than the bill Congress voted on...
The Law and Polygamy in Canada
Posted on May 02, 2008The intense media coverage of the raid on the polygamist ranch in Texas has also generated scrutiny of Canada’s polygamous communities. Polygamy is against the law in Canada but there has not been a prosecution of a case in over sixty years...
Millionaire's Estate worth Nil
Posted on May 01, 2008Dame Anita Roddick, the founder of the Body Shop, gave away her entire wealth, approximately 102 million dollars, to various charities while alive. She only left enough money in her estate to pay the inheritance tax on those charitable gifts. Once the inheritance tax is paid, the value of her estate will be nil...
A Look at the Moral and Legal Obligations to Dependants
Posted on April 30, 2008An Alberta case, Re Boychuk, looks at the legal and moral obligations to provide support to a dependant of the estate.The testator executed his Will in 2003 when he was 89 years old leaving his entire estate, just over $62,000.00, to two of his five children and leaving nothing to his wife of 71 years who resided in a nursing home...
Millionaire's Estate worth Nil
Posted on April 30, 2008Dame Anita Roddick, the founder of the Body Shop, gave away her entire wealth, approximately 102 million dollars, to various charities while alive. She only left enough money in her estate to pay the inheritance tax on those charitable gifts. Once the inheritance tax is paid, the value of her estate will be nil...
Dependency and Undue Influence - Hull on Estates #108
Posted on April 29, 2008Listen to Dependency and Undue Influence This week on Hull on Estates, Diane Vieira and Paul Trudelle discuss dependency and undue influence in the case of Bale vs. Bale. This topic is also discussed by Paul Trudelle in his blog post: If the link does not work, cut and paste the following URL into your browser: http://estatelaw...
Issues in Estate Administration: Tax Filing - Hull on Estate and Succession Planning Podcast #110
Posted on April 29, 2008Listen to Issues in Estate Administration: Tax Filing. This week on Hull on Estate and Succession Planning, Ian and Suzana discuss tax issues surrounding the administration of an estate. Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estates and Succession Planning blog.
Arthur Miller's Last Words
Posted on April 29, 2008A Vanity Fair article published late last year writes on the relationship between playwright, Arthur Miller and his son, Daniel Miller who was born with Down Syndrome. Daniel was born in 1966 and institutionalized one week after being born and apparently while other family members kept in touch with Daniel, Miller rarely visited him or spoke of him...
Practice Management Blogs: A Source for New Ideas
Posted on April 28, 2008I recently came across two entertaining and informative blogs about practice management for lawyers and law firms. David Bilinsky is a practice management advisor and staff lawyer with the Law Society of British Columbia. He writes and lectures on the subject of legal practice management and his blog, www...
Leaving an Ethical Will
Posted on April 25, 2008Following up on Allan Socken’s blog of March 31, 2008 entitled “What is Legacy Coaching”, I came across an article in the American College of Trust and Estate Counsel Journal entitled “Is Your (Ethical) Will in Order?” (2008) 33 ACTEC Journal 154 by Zoe Hicks...
Dinner with the Estates List Justices
Posted on April 24, 2008On April 23, 2008, I attended at the Ontario Bar Association’s Dinner with the Estates Lists Justices.The evening began with a review of the Case of the Month by Barry Corbin. Barry discussed the Court of Appeal decision of Madore-Ogilvie v...
Dependency and Undue Influence
Posted on April 23, 2008Mom dies, leaving a will that divides her estate among her three sons. The only trouble is that before she died, Mom gave the farm to one of her sons. Accordingly, the other two sons receive nothing upon Mom’s death. This fact situation was recently considered by Jenkins J...
Principles and Costs
Posted on April 22, 2008In determining whether to litigate, or how far to go with a claim, a paramount consideration must be the costs involved, and the prospect of their recovery or payment.Recently, I came across a case that highlights the issue. There, a wrongful dismissal matter, the court awarded the employee 2 ½ months’ notice, or $9,166...
Payment of Legacies - Hull on Estate and Succession Planning Podcast #109
Posted on April 22, 2008Listen to Payment of Legacies This week on Hull on Estate and Succession Planning, Ian and Suzana discuss payment of legacies and other gifts that may be set out in a will. Comments? Send us an email at hullandhull@gmail.com or leave us a message on our comment line at 206-457-1985.
Alter Ego Trusts - Hull on Estates #107
Posted on April 22, 2008Listen to Alter Ego Trusts. This week on Hull on Estates, Natalia and Chris discuss what Alter Ego Trusts are and the pros and cons of using Alter Ego Trusts. Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog...
Taxation of Executor Compensation
Posted on April 21, 2008It’s just about tax time, so I thought I would briefly discuss the taxation of executor compensation.The basic premise is that executor compensation is taxable in the hands of the recipient. It is either income from an office or employment (if the executor is not in the business of being an executor) or income from a business (if the executor is in the business of being an executor, or if such a function is in the executor’s usual course of business)...
All Oceans (Used to) Lead to London - Some still do
Posted on April 18, 2008Once in a blue moon I find myself considering and marveling at the genius and breadth of the Common Law. I am amazed by the Common Law’s ability to function effectively in what otherwise appear to be remarkably different parts of the world, particularly in the area of Estates and Trusts...
Power of Attorney Abuse on the Rise
Posted on April 17, 2008By all indications, the abuse of Powers of Attorney to misappropriate assets is on the rise. When a grantor gives powers to an attorney to manage the grantor’s property, it allows the attorney to assist the grantor in managing property, and in fact to take over management of property altogether if the grantor does not monitor the situation...
Contingency Fees Revisited
Posted on April 16, 2008In Re Cogan, the Ontario Superior Court of Justice addressed the issue of contingency legal fees. The lawsuit involved the claim of a minor suffering from cerebral palsy, with the plaintiffs alleging that the obstetrician and nurses attending at the child’s birth were negligent...
The Business of Being an Estate Trustee - Hull on Estate and Succession Planning Podcast #108
Posted on April 15, 2008Listen to The Business of Being an Estate Trustee. This week on Hull on Estate and Succession Planning, Ian and Suzana discuss the business side of being an Estate Trustee and talk about what to do with assets. Comments? Send us an email at hullandhull@gmail...
Expert Witnesses and Expert Reports (The Cross Examination) - Hull on Estates #106
Posted on April 15, 2008Listen to Expert Witnesses and Expert Reports (The Cross Examination). This week on Hull on Estates, Diane and Craig discuss what to consider when dealing with experts and expert reports in cross examination. Comments? Send us an email at hull.lawyers@gmail...
Who can you trust?
Posted on April 15, 2008A massive $110 million lawsuit has been brought by the Attorney General’s office in California against a “living trust mill that tricked senior citizens into using their retirement savings to buy annuities that often made less financial sense for the elderly victims but earned the con artists substantial commissions and other income...
Going Offshore: It's not just the weather
Posted on April 14, 2008An interesting excerpt from Diane Francis’s new book Who Owns Canada Now? was published in Saturday’s National Post and touches in some detail on offshore trusts as a mechanism to avoid Canadian taxes.Aside from briefly lamenting my non-mention in a book chronicling Canada’s wealthiest, I was struck by the contradiction in the apparent approaches of different wealthy Canadians to the opportunity to avoid taxes...
Worth Repeating - Best Practices on the Estates List
Posted on April 11, 2008Mr. Justice Brown presented a paper at the recent OBA CLE Seminar Emerging Trends in Estates and Trusts: What Does the Future Hold? Mr. Justice Brown’s paper was adeptly titled One Judge’s “Wish List”: Best Practices on the Estates List...
The Fortitude of a Release
Posted on April 10, 2008Anne Werker recently brought an interesting case to my attention. In Rooney Estate v. Stewart Estate[1], the solicitor who performed the executor’s duties attempted to rely on a release signed by a beneficiary in his response to an application that he pass accounts in his capacity as de facto trustee...
Trustees and the Duty to Consult
Posted on April 09, 2008Surprisingly, there is very little case law on point when it comes to trustees and their duty to consult with one another.Where there is harmony and open communication between the trustees, consultation comes naturally and is often routine. Decisions are essentially reached by consensus...
MEDIATION: THE CHANGING NATURE OF THE PLENARY SESSION
Posted on April 08, 2008Whether voluntary or mandatory, mediation is now a common occurrence in estate and trust litigation. Much has been written and blogged on the subject. I therefore thought it worthwhile to comment on the changing nature of the plenary session from a practioner’s point of view...
Sham and Secret Trusts - Hull on Estates #105
Posted on April 08, 2008Listen to Sham and Secret Trusts. This week on Hull on estates, Ian and Suzana discuss Sham and Secret Trusts. Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a message on the Hull on Estates blog.
Administration of the Assets of the Estate - Hull on Estates and Succession Planning #107
Posted on April 08, 2008Listen to Administration of the Assets of the Estate This week on Hull on Estates and Succession Planning, Ian and Suzana discuss things to consider when administrating the assets of an estate and point out burdens of being and executor. Comments? Send us an email at hullandhull@gmail...
Tax Season
Posted on April 07, 2008Welcome to my week of blogs.Tax season is once again upon us with all of its attendant trepidation. No doubt, a general panic has set in as people gather together the necessary documentation to fill out and file their tax returns. Anybody who has been an estate trustee will know that he/she is responsible to prepare and file a terminal tax return and to ensure that any outstanding taxes are paid on time...
Mary Carter Can Assist You: No Retainer Required
Posted on April 04, 2008A Mary Carter Agreement originated from the Florida decision entitled Booth v. The Mary Carter Paint Company. In effect, this case stands for the proposition that in return for payment to the plaintiff of a specific sum of funds, the settling defendant caps her potential liability...
Does Mediation Hinder the Progression of Law?
Posted on April 03, 2008While mediation has been highly lauded as a "win-win" situation for all parties, this form of alternative dispute resolution is not without its critics. Owen M. Fiss has stated that mediation prevents the progression of law, thereby inhibiting the courts from fulfilling their role in society...
Upcoming CLE Event: The Impact of Iasenza v. Iasenza Estate on FLA Spousal Elections
Posted on April 02, 2008The Six-Minute Estates Lawyer 2008 hosted by The Law Society of Upper Canada is rapidly approaching. This CLE event is bound to contain very useful and practical insights for estate litigators, as well as for practitioners who deal with estate matters as part of their practice...
Insights on Aging and the Elderly Seminar - Hull on Estate and Succession Planning Podcast #106
Posted on April 01, 2008Listen to Insights on Aging and the Elderly Seminar This week on Hull on Estate and Succession Planning, Ian talks about a seminar he attended and participated in last week called 'Insights on Aging and the Elderly'. The seminar was hosted by B'nai Brith and featured Dr...
Issues Causing Delay in the Granting of Probate - Hull on Estates #104
Posted on April 01, 2008listen to Delay in the Granting of Probate. This week on Hull on Estates, David and Sarah discuss issues that cause delay in the granting of probate. Comments?Send us an email at hull.lawyers@gmail.com, call us on the comment line on 206-350-6636, or leave us a comment on the Hull on Estates blog.
Rozon v. TransAmerica Life Insurance: Another Benefit to Owning Life Insurance
Posted on April 01, 2008Administering an estate poses many challenges for an estate trustee. An interesting question was considered in Rozon v. TransAmerica Life Insurance, which dealt with the issue of whether an insurance company may require that a Certificate of Appointment of Estate Trustee or probate be obtained prior to the funds being advanced to the estate by an insurance company...
What is Legacy Coaching?
Posted on March 31, 2008It is trite to say that estate disputes carry a tremendous financial and emotional toll on the disputing parties. A clear and up-to-date estate plan and Will are generally the best ingredients to avoid litigation. Of course, when the testator's intentions are disputed, it is often necessary to retain legal counsel...
May I Encroach on Your Capital?
Posted on March 28, 2008Ontario Progressive Conservative Leader John Tory recently opined that Ontario is in a recession. www.cbc.ca/Canada/Toronto/story/2008/03/27/tory-economy.html While Ontario's last economic downturn resulting in a recession was almost twenty years ago, many people still recollect this dismal period as a time when unemployment was high and investment opportunities appeared to be non-existent...
Know Thy Power of Attorney
Posted on March 27, 2008As we age, not only is it prudent to carefully prepare an estate plan, but consideration must also be given to the question of what happens if we become incapable of making financial or medical decisions. While the Substitute Decisions Act sets out the legal requirements for a valid power of attorney for personal care and property, it cannot address who a suitable attorney would be for a particular individual...
Dependant's Relief and Jointly Owned Insurance Policies
Posted on March 26, 2008The Court of Appeal recently rendered its decision in Madore-Ogilvie and Ogilvie v. Ogilvie Estate, 2008 ONCA 39. One of the issues was whether the proceeds from a jointly owned life insurance policy could be included in the deceased’s estate for the purposes of satisfying a dependant’s relief claim...
Predatory Lending and Older Homeowners
Posted on March 25, 2008The Canadian Centre for Elder Law (CCEL), a division of the British Columbia Law Institute (BCLI), issued a media release on February 28, 2008 advising that it has just released its Study Paper on Predatory Lending Issues in Canada.In its media release the CCEL noted that while the subprime mortgage crisis in the United States has made the issue of predatory lending a hot topic worldwide, little attention has been paid to the legal aspects of predatory lending in the Canadian mortgage market...
Applying for Probate
Posted on March 25, 2008Listen to Applying for Probate This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the applying for probate. They discuss some of the ways that estate administrators can simplify the process. Comments? Send us an email at hullandhull@gmail...
Midori and Ogilvy - Hull on Estates #103
Posted on March 25, 2008Listen to Midori and Ogilvy. This week on Hull on Estates, Rick and Sean discuss the case of Midori and Ogilvy which was recently featured in the CCH periodical Will Power. Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.
Upcoming OBA Continuing Legal Education Events
Posted on March 24, 2008There are several interesting OBA continuing legal education (CLE) events in the Trusts & Estates Section in the next two weeks. One is a luncheon program on March 25, 2008 commencing at noon addressing the topic of Power of Attorney Fraud. This program promises to discuss this escalating problem, some recent developments in criminal fraud proceedings, and how careful and creative planning with respect to Power of Attorney documents can help avoid family conflicts as well as costly and senseless litigation...
Who is the "Mother" in Surrogate Parenting?
Posted on March 20, 2008I thought I would close off this week’s blogs with a recent decision that reviews the law on surrogate parents.In M.D. v. L.L. a married couple wished to have a child. Unfortunately, the wife, M.D., was unable to bear children. So, the couple turned to a family friend, L...
What Happens When You Don't Formally Accept Your Interest in an Estate?
Posted on March 19, 2008In a recent Superior Court of Quebec decision a family’s patriarch, Leon, died intestate in 1968. The main asset of his estate was his home (registered in Leon’s name) where he resided with his wife and son, Walter. At law Leon’s wife was entitled to 1/3 of the home, and Walter was entitled to 2/3 of the home...
Right to Pursue Damages Survives Expiry of Limitation Period
Posted on March 18, 2008A v. Hoare is a significant House of Lords decision that modifies the law on limitation periods in the United Kingdom. In this case a retired teacher, Mrs. A., had been brutally attacked twenty years ago. Her attacker, Mr...
Personal Liability - Hull on Estate and Succession Planning #104
Posted on March 18, 2008Listen to Personal Liability This week on Hull on Estate and Succession Planning, Ian Hull talks about the extensive personal liability of an estate trustee. Also, in the March 2008 issue of Canadian Lawyer, the Toronto Estate Law Blog was ranked as one of Canada's Top Ten Law-Related Blogs by Gerry Blackwell...
The Deemed Undertaking Rule - Hull on Estates #102
Posted on March 18, 2008Listen to the deemed undertaking rule. This week on Hull on Estates, Paul and Allan discuss the deemed undertaking rule and its application to estate matters. Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog at http://estatelaw...
The Electronic Land Registration System and the New Registration Requirements for Transfers and Powers of Attorney
Posted on March 17, 2008On December 20, 2006, the Ministry of Government Services Consumer Protection and Service Modernization Act, 2006 (Bill 152) received Royal Assent. The Act contained amendments to a number of statutes, including the Land Registration Reform Act, Land Titles Act and Registry Act, to address issues related to real estate fraud...
Essential Terms of Settlement Offers
Posted on March 14, 2008If an offer is negotiated and later accepted, how is a court to resolve a later dispute over the form of the release? The Court in Glaspell v. Glaspell Estate, (2008) 36 E.T.R. (3d) 315 held that a release that does not commit a signatory to taking any steps other than those contemplated by the settlement agreement will suffice, even if overly wordy...
Battle Brewing Over Heath Ledger Estate?
Posted on March 13, 2008Recently departed actor Heath Ledger (A Knight's Tale, Brokeback Mountain, The Dark Knight) left behind a young daughter. But based on news reports, Ledger appears to have neglected to include his daughter in his Will, perhaps unintentionally...
Are Legal Costs Really Going Up?
Posted on March 12, 2008"Access to Justice" tends to be a topical issue in the newspapers. The general feeling seems to be that legal costs are spiraling ever upwards to the detriment of the public. Take this article from CanWest News Services. Few would dispute that litigation costs can sometimes grow rapidly, particularly where the issues are complex or a litigant acts unreasonably...
File For All to See
Posted on March 11, 2008The OBA Civil Litigation Section recently held a Continuing Legal Education seminar on the deemed undertaking rule (Rule 31.1.01(3)) and the filing of transcripts. For those who have not had a chance to listen to our (excellent, eloquent!) podcast on this point, here is the abridged version:Practitioners of all stripes can take solace in the fact absent a sealing Order granted under s...
Getting Probate - Hull on Estate and Succession Planning #103
Posted on March 11, 2008Listen to Getting Probate This week on Hull on Estate and Succession Planning, Ian and Suzana discuss probate - what it is and when you need it. Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985 or leave us a comment on our blog at www...
Assisted Reproductive Technology and Succession Law - Hull on Estates Podcast #101
Posted on March 11, 2008Listen to Assisted Reproductive Technology and Succession LawIn 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...
The Perfect Storm?
Posted on March 10, 2008It's About the House's Current Market Value, Stupid.One of the first steps in any estates litigation matter is valuing the estate assets. Most assets are easy to value: RIFs, bank account, etc. But for many estates, the major asset is house...
Macabre gap in New Zealand law?
Posted on March 07, 2008"It's unacceptable to the average person that you can just turn up with a bunch of heavies and steal the coffin."Coen brothers? Nope. No, not Tim Burton either. In fact, this is a statement put forth by an MP in New Zealand after the third case of body snatching in less than a year...
To burn or not to burn?
Posted on March 06, 2008Yesterday, we read about Franz Kafka's unfulfilled wishes with respect to his manuscripts, both published and unpublished, at the time of his death in 1924. Flash forward eight decades or so. Dmitri Nabokov, the 73 yr old sole surviving heir of Vladimir Nabokov, continues his 30-yr struggle with his father's deathbed request that his last unpublished work, The Original of Laura, be destroyed...
Stop the Presses?
Posted on March 05, 2008The meaning of life is that it stops. --- Franz KafkaIf you are familiar with Kafka and his short literary works, you will know that he was a tortured literary genius who was unsure of his own talent to the point of torment. In 1924, dying of tuberculosis, Kafka wrote to his friend of 20 years and fellow novelist, Max Brod...
The Family Focus
Posted on March 04, 2008By my count, in the relatively short history of our website, our firm's lawyers have blogged on the transfer of wealth by the boomers to their children on six separate occasions. See, for example, this blog and this blog. And our blogs reflect a trend to report on the subject as the dominant sociological issue in the business media...
Assets and Liabilites - Hull on Estate and Succession Planning #102
Posted on March 04, 2008Listen to Assets and Liabilities This week on Hull on Estate and Succession planning, Ian and Suzana expand on last week's discussion about determining value. They also discuss taking an inventory of an estate's assets and liabilities. Comments? Send us an email at hullandhull@gmail...
Trustees' Rights to Indemnification
Posted on March 04, 2008Listen to Trustees' Rights to Indemnification. This week on Hull on Estates, Suzana and Ian celebrate the 100th episode of Hull on Estates with the first part of a two episode discussion on a trustee's right to indemnification. Comments? Send us and email at hull...
The Sur(real) estate
Posted on March 03, 2008The orderly administration of a parent's estate will often revolve around the family home. All too often, the children of the deceased parent will not see eye to eye on the best way to liquidate the home or whether the home should be liquidated at all...
The Case for Health Care Directives
Posted on February 29, 2008Several recent stories in the news highlight the importance of making sure your estate plan includes a directive for health care in the event you are incapable of making health-related decisions. Diane Sawyer, speaking on a segment for ABC news recently, covered the amazing story of a 65 year old woman who awakens from a coma after suffering a cerebral hemorrhage (watch the video here)...
Bullet-Proofing a Will
Posted on February 28, 2008What are some of the "red flags" to be wary of in the course of a retainer to prepare a Will? Corina Weigl considered this issue in an article she wrote for the 2007 LSUC Six Minutes Estates Lawyer (find it here) titled "How to Bullet-Proof Your Will"...
Probate and the History of Women's Inheritance Rights
Posted on February 27, 2008I came across a really interesting blog (find it here) the other day that considered an article published recently by Kristine S. Knaplund (Professor of Law, Pepperdine School of Law), entitled The Evolution of Women’s Rights in Inheritance, 19 Hastings Women’s Law Journal 3 (2008)...
Planning for Organ Donation
Posted on February 26, 2008A new study (find it here) suggests that even when a testator (and family members) support organ donation, there is no guarantee that these wishes will be carried out when someone dies. Researchers at the University of Southampton in the UK have concluded that relatives are often reluctant to carry out the deceased’s wishes regarding organ donation, due primarily to conflicting feelings over “protecting the body” of the deceased and “making a gift of life”...
A Continuation of Experts in the Context of Estates - Hull on Estates # 99
Posted on February 26, 2008Listen to A Continuation of Experts in the Context of Estates. This week on Hull on Estates, Craig and Diane continue last week's discussion regarding experts in the context of estates. The conversation touches primarily on choosing the expert and considerations for the report...
Determining Value - Hull on Estate and Succession Planning #101
Posted on February 26, 2008Listen to Determining Value This week on Hull and Estate and Succession Planning, Ian and Suzana talk about values and appraisals. They specifically look at some of the issues related to assigning value to assets such as jewellery, automobiles, antiques and artwork...
The Annotated Will, LSUC February 21, 2008
Posted on February 25, 2008I recently attended this CLE program of the LSUC chaired by Laura Kerr, Jennifer Pfuetzner and Corina Weigl. The panel used an annotated Will as a framework to consider drafting tips, and highlighted many significant recent developments.Notable provisions included “Air Miles Designations” (of value if a testator or testatrix has acquired a significant quantum of frequent flyer points), a “Debts, Funeral and Testamentary Expenses” clause which included provision for “reasonable travel expenses” for relatives and/or friends wishing to attend the funeral, and an updated “RESP” clause...
Life Support Dispute Heads to Trial
Posted on February 22, 2008In January, Justin de Vries wrote a blog about an 84 year old Orthodox Jew who was on life support. He had suffered brain damage from a fall and was unable to walk, talk, breathe, or eat on his own. Doctors said that he had no chance of recovery and wanted to remove him from life support...
Planning Early Can Get You a Discount - At Least if You Live in Montana (and Own a Farm)
Posted on February 21, 2008I came across an interesting article in The Prairie Star, a Montana-based newspaper, about an incentive being offered to farm and ranch couples, both young and old, who plan their estates early. Montana State University is offering a promotion whereby the first 40 couples who work through an estate planning process will receive $100...
Tax Treatment of RRSPs on an Annuitant's Death
Posted on February 20, 2008With the deadline for RRSP contributions right around the corner, I thought it would be worthwhile to review the tax treatment of RRSPs on an annuitant’s death. Generally speaking, when an annuitant dies, the fair market value of the RRSP is attributed to the annuitant’s income during his or her final year of life and must be included on the terminal return...
More Litigation Hits James Brown's Estate
Posted on February 19, 2008James Brown’s estate has been subject to litigation by his grandchildren, his children, people who say they were his children but whose paternity has not been established, three former wives, and a companion who claims she was his fourth wife. Allan Socken discussed this litigation in his blog on January 8, 2008...
Valuations and Appraisals - Hull on Estate and Succession Planning #100
Posted on February 19, 2008Listen to Valuations and Appraisals Ian celebrates the 100th episode of Hull on Estate and Succession Planning without Suzana. He discusses the question of valuations and appraisals and how these affect estate mediation.Comments? Drop us a line at 206-457-1985 or send us an email at hullandhull@gmail...
Accounting Procedure Available Under the Substitute Decisions Act - Hull on Estates #98
Posted on February 19, 2008Listen to Accounting Procedure Available Under the Substitution Decisions Act. This week on Hull on Estates, Rick and David discuss procedure under the Substitution Decisions Act and review executor and attorney obligations as well as specific procedures permitting someone to compel an accounting...
Royal Wills: Privacy versus Transparency
Posted on February 15, 2008Robert Brown claims to be the unacknowledged “love child” of Queen’s Elizabeth’s late sister, Princess Margaret. In his quest to prove his claim, he has sought access to the secret Royal Wills of Princess Margaret and the Queen Mother...
Everything You Ever Wanted to Know About the Supreme Court of Canada
Posted on February 14, 2008I recently came across Osgoode Hall Law School’s blog site about the Supreme Court of Canada, The Court. Under the supervision of faculty, law student editors write on the upcoming decisions that are scheduled to be heard or have been recently decided by the Supreme Court of Canada...
Estate Administration and Persons Born Outside of Marriage
Posted on February 13, 2008The Globe and Mail recently interviewed a man living in British Columbia who may be the son of John F. Kennedy. The article made me reflect on the different ways solicitors deal with persons born outside of marriage when drafting a Will. Since March 1978, persons born inside of marriage and outside of marriage are entitled to share equally in an intestacy estate...
Pre-probate Checklist - Hull on Estates #99
Posted on February 12, 2008Listen to Pre-probate ChecklistThis week on Hull on Estates, Ian and Suzana discuss last week's Ontario Bar Association Conference (featuring Clare Burns and Jordin Atin as speakers). They then wrap up their ongoing discussion about some useful steps to remember when administering an estate...
Elections and Social Networks
Posted on February 12, 2008Even as Canadians, we cannot help but get caught up in the media frenzy surrounding the U.S. Presidential State Primaries. In the last couple of months, the dominating story has been the campaign between Hillary Clinton and Barack Obama for the Democratic Party nomination...
The Ontario Civil Justice Reform Project - Hull on Estates #97
Posted on February 12, 2008listen to The Ontario Civil Justice Reform Project This week on Hull on Estates, Chris and Justin discuss the Ontario Civil Justice Reform Project and the steps being taken by Mr. Justice Colter Osbourne and Attorney General Michael Bryant. Comments? Send us an email at hull...
Pre-probate Checklist - Hull on Estate and Succession Planning #99
Posted on February 12, 2008Listen to Pre-probate ChecklistThis week on Hull on Estates, Ian and Suzana discuss last week's Ontario Bar Association Conference (featuring Clare Burns and Jordin Atin as speakers). They then wrap up their ongoing discussion about some useful steps to remember when administering an estate...
Charitable Gift Clauses
Posted on February 11, 2008I am currently attending Osgoode Professional Development’s Fifth Annual Intensive Wills and Estates Workshop which has considered, among other things, common drafting errors and how to avoid them. When it comes to charitable gifts, a solicitor should confirm the information the testator provides to them...
Natural Burial
Posted on February 08, 2008Environmental consciousness is spreading, and is making its way into the realm of estates.There is a growing movement towards “natural burial” or “eco-cemeteries”, and away from more traditional practices such as a conventional burial or cremation...
Obtaining Releases from Beneficiaries
Posted on February 07, 2008One final note of caution arises from the Rooney (2007), CarswellOnt 6560 decision – a decision of the Ontario Superior Court of Justice that I have referred to in my blogs earlier this week. This caution refers to the release that the Estate Trustee seeks from the beneficiaries...
What is Included in the Duty to Keep Accounts
Posted on February 06, 2008Yesterday, I referred to the Ontario Superior Court decision of Rooney Estate v. Stewart Estate (2007), CarswellOnt 6560, which addressed the distinction between the role of the Estate Trustee and the role of the estate solicitor.One of the responsibilities of the Estate Trustee is to prepare a set of accounts for the approval of the beneficiaries or the court, as may be required...
Administration and the Role of the Solicitor and the Role of the Estate Trustee
Posted on February 05, 2008The recent case of Rooney Estate v. Stewart Estate (2007), CarswellOnt 6560 serves to highlight the “distinct but complimentary” roles of the Estate Trustee and the estate solicitor. There, the court noted the responsibilities of each...
The Family Conference - Hull on Estates #96
Posted on February 05, 2008Listen to The Family Conference This week on Hull on Estates, Natalia and Allan discuss the Family Conference. Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estate blog...
Asset Particulars - Hull on Estate and Succession Planning #98
Posted on February 05, 2008Listen to Asset ParticularsThis week on Hull on Estate and Succession Planning, Ian and Suzana talk about the importance of keeping track of asset details.Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog...
Revoking a Family Law Act Election
Posted on February 04, 2008Does the Court have jurisdiction to set aside a Family Law Act election, or is such an election irrevocable?This question was recently considered in the Ontario Superior Court of Justice decision of Iasenza v. Iasenza Estate 2007 CanLII 23351.As background, Ontario’s Family Law Act (“FLA”) allows a surviving spouse to elect to either receive benefit under the deceased’s will (or on an intestacy if there is no will), or receive an equalization of net family property under the FLA...
A Trustee's Liability For Bad Investments
Posted on February 01, 2008As we all know, it is not uncommon for any investor to occasionally experience a substantial decrease in the value of one of the stocks in his or her portfolio. But what if the investor is a trustee? In light of the recent amendments to the Trustee Act which appear to embrace the modern portfolio theory, it will be interesting to see how the Court will utilize this theory to assess a trustee's investment performance...
The Modern Portfolio Theory
Posted on January 31, 2008In my blog yesterday, I introduced the prudent investor rule as the standard of care for trustees when investing assets that are held in a trust. Today, I will address how a trustee’s investment performance may be assessed.Prior to July 1999, trustees were required to make investments pursuant to the “statutory legal list” provided for in the Trustee Act...
Prudent Investing
Posted on January 30, 2008Not all Wills provide for an outright distribution to the beneficiaries. In some cases, the assets of an estate are held in trust over a period of time for the benefit of one or more beneficiaries, sometimes in succession. When a trustee administers a trust, he or she is entrusted to act for the benefit of others...
Episode 95 - Tips and Traps in Drafting
Posted on January 30, 2008Listen to Tips and Trips in Drafting. This week on Hull on Estates, Suzana and Ian discuss tips and traps in the drafting of wills.
Tips and Traps in Drafting - Hull on Estates #95
Posted on January 30, 2008Listen to Tips and Trips in Drafting. This week on Hull on Estates, Suzana and Ian discuss tips and traps in the drafting of wills.Tips and Traps in Drafting - Hull on Estates Podcast #95 Posted on January 30th, 2008 by Hull & Hull LLP Suzana Popovic-Montag: Hi and welcome to Hull on Estates...
Cost Awards
Posted on January 29, 2008Section 131 of the Courts of Justice Act establishes the authority for the Court to award costs. Section 131 states that the Court has absolute discretion in awarding costs, subject to the provisions of an Act or the rules of court. Before July 2005, the Rules of Civil Procedure provided some sense of certainty to the Court’s broad discretion in awarding costs as the Rules provided a costs grid...
Initial Estate Meetings - Hull on Estate and Succession Planning #97
Posted on January 29, 2008Listen to Initial Estate MeetingsThis week on Hull on Estate and Succession Planning, Ian and Suzana discuss how important it is to be prepared for an initial meeting with an estate lawyer. They have also been listening to and reading David Maister's new (audio)book Strategy and the Fat Smoker and continue their conversation on The Tipping Point by Malcolm Gladwell...
Application for Opinion, Advice, or Direction vs. Application for Direction
Posted on January 28, 2008As this is the beginning of the week, I would like to take this opportunity to visit two of the rules from the Rules of Civil Procedure, which are frequently used by estate litigators. Rule 14.05(3)(a) states that "a proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is, the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust"...
The Merits of Checklists
Posted on January 25, 2008Checklists are wonderful things when it comes to the practice of law (list makers would argue that that is true in life as well). In today’s busy practice, a checklist can ease the troubled legal mind. I was looking at several estate planning information checklists earlier this week...
Ontario Civil Justice Reform Project
Posted on January 24, 2008As both litigant and counsel know, the cost of litigation is often prohibitive and institutional delays are not uncommon (there never seems to be enough judges to go around). I therefore took some time to read the long-awaited Report of the Ontario Civil Justice Reform Project, which was released in November 2007...
The Ultimate Decision - Who Has the Right to Decide?
Posted on January 23, 2008Over the Christmas break, a news story out of Winnipeg captured national headlines. Samuel Golubchuk is 84 years old and on life support in Winnipeg’s Grace Hospital. He apparently suffered a brain-injury from an earlier fall and part of his brain was removed at the time...
What to look for in a Mediator
Posted on January 22, 2008Mediation is a common occurrence in estate litigation. Mediation is also popular in other areas, including family law and even commercial litigation. When choosing a mediator, I look for the following characteristics: Knowledgeable (has to know the law) Experienced at mediating (too many “wannabes”) Litigation savvy (knows the true costs and challenges of litigation) Empathetic (a good, sympathetic listener is a must) Diligent (a mediator has to know the issues and subtleties) Firm (a mediator has to know when to read the “riot act”) Stamina (mediation is often a marathon) Adaptable (a mediator wears many hats) If the other side suggests a mediator you’ve never heard of, ask around...
The Surviving Spouse - Hull on Estate and Succession Planning #96
Posted on January 22, 2008Listen to The Surviving SpouseThis week on Hull on Estate and Succession Planning, Ian talks about an interview he did this week for a new website called Law is Cool and why he podcasts.Ian and Suzana discuss the importance of preparing for the death of a spouse or for the welfare of your spouse upon your death...
Experts in Estate Matters - Hull on Estates #94
Posted on January 22, 2008Listen to Experts in Estate Matters. This week on Hull on Estates, Craig Vander Zee and Sarah Fitzpatrick discuss expert evidence in estate matters. In this episode they outline circumstances when one should use expert evidence, different types of experts, timing of reports, limitations of experts and the court appointed expert.
The Doctrine of Abuse of Process
Posted on January 21, 2008Welcome to my week of blogs. I hope you enjoy the eclectic mix of topics and issues that I will blog on this week.I recently came across a case that considered the doctrine of abuse of process. While it was a family law dispute, the case nevertheless caught my attention as abuse of process cuts across all areas of the law, including estate litigation...
Hull & Hull LLP Estate, Trust and Capacity Law Breakfast Series
Posted on January 18, 2008Yesterday's Breakfast Series was very informative (and the breakfast is always a nice treat!). Suzana Popovic-Montag started off the seminar with an instructive talk on trust issues in an estates context. Her discussion of leading and recent case-law examining a trustee's discretion to encroach on capital, including Gisborne v...
The Solicitor's Duty to "Go Behind" a Power of Attorney
Posted on January 17, 2008In Reviczky v. Meleknia, a house was "sold" (unbeknownst to the true owner) by a person acting under a fictitious power of attorney and posing as the applicant’s relative. The purchaser, an innocent third party, financed most of the purchase price through a mortgage registered on title...
The Impact of Offers to Settle and other Factors on Cost Awards
Posted on January 16, 2008An offer to settle made pursuant to Rule 49 of the Rules of Civil Procedure can be an extremely effective mechanism to secure a better costs order (see Rule 49.10). Most offers made outside the ambit of the Rules can also be very helpful to the offeror from a costs standpoint, particularly if such offers (like Rule 49...
Revamped Certified Specialist Program!
Posted on January 15, 2008In the spring, I blogged on the pending demise of the Law Society’s Certified Specialist Program, likely caused by there not being enough lawyers coveting the title. I am happy to report that Convocation approved a proposal to continue and improve the Program (announced in the Fall/Winter 2007 issue of the Ontario Lawyers Gazette)...
Funeral Considerations - Hull on Estate and Succession Planning Podcast #95
Posted on January 15, 2008Listen to Funeral ConsiderationsThis week on Hull on Estate and Succession Planning, Ian and Suzana discuss the considerations and responsibilities of estate trustees at the time of a funeral. They also introduce Malcolm Gladwell's book 'The Tipping Point' as a different way of understanding family behaviour at the time of death...
Karkus v. Cotroneo 2007 - Hull on Estates #93
Posted on January 15, 2008Listen to Karkus v. Cotroneo 2007This week on Hull on Estates, Paul Trudelle and Diane Vieira discuss the case of Karkus v. Cotroneo 2007. The case addresses many of the issues that estate lawyers face on a daily basis, such as: proving or disproving gifts, slander of title and the importance of corroborative evidence...
Things to Consider When Contemplating a Guardianship Dispute
Posted on January 13, 2008In guardianship disputes, unlike other estate litigation, you are dealing with a living person, whose needs and wishes must be kept in mind at all times. For this reason, thorough contemplation of how to approach the case is important to undertake at the outset...
"A Diamond is Forever?" - Lost Gifts and the Principle of Ademption
Posted on January 11, 2008In keeping with the holiday season which has just ended, many of us can reflect on the gifts we received from family members and friends. Often, the sentimental attachment far exceeds the monetary value of the gift. To this end, a testator may make a specific bequest in her Will indicating that upon her demise, a valuable family heirloom is to be given to a close relative...
Hull & Hull LLP Breakfast Series - January 17, 2008
Posted on January 10, 2008The administration of an estate encompasses a significant portion of most estate solicitors' practices. Even if the estate is being competently administered, it is still possible that many remedies which would be useful for the beneficiaries could be overlooked in the process...
2007 Clawbies
Posted on January 09, 2008The Canadian Law Blog Awards ("Clawbies") promote Canadian legal talent on the internet. You may access the website at http://www.clawbies.ca. Recently, Clawbies issued "awards" for, among other things, the "Best Practitioner Support Blog...
The Case for Mediation
Posted on January 08, 2008I am currently working on my Master of Laws in Alternative Dispute Resolution ("ADR"). When my peers discovered that I practice estate, trust and capacity litigation, they were surprised by my decision to pursue this degree. After all, a litigator is thought to spend the vast majority of time in court...
Estate Administration - Hull on Estate and Succession Planning Podcast #94
Posted on January 08, 2008Listen to Estate AdministrationThis week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on what to expect in the early stages of estate administration.Estate Administration - Hull on Estate and Succession Planning Podcast #94 Posted on January 8th, 2008 by Hull & Hull LLP Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning...
Proprietary Estoppel - Hull on Estates #92
Posted on January 08, 2008Listen to Proprietary EstoppelThis week on Hull on Estates, David Smith and Rick Bickhram discuss proprietary estoppel.Proprietary Estoppel - Hull on Estates Podcast #92 Posted on January 8th, 2008 by Hull & Hull LLP David Smith: Hello and welcome to Hull on Estates...
James Brown's Legacy
Posted on January 07, 2008It was recently reported that five of James Brown's children have commenced legal proceedings to challenge the validity of the legendary singer's Will on the basis that his former advisers unduly influenced him to create charitable trusts from which the advisers would profit...
2008 Award of Excellence
Posted on January 04, 2008Each year the Ontario Bar Association (OBA), Trusts and Estates Section, considers candidates for its Award of Excellence. Last year, the Section paid tribute to Brian Schnurr as the recipient. The Award for Excellence was created to recognize exceptional contributions and achievements by members of the OBA to the area of trusts and estates...
Consent Orders - Hull on Estates #91
Posted on January 03, 2008Listen to Consent OrdersThis week on Hull on Estates, David Smith and Christopher Graham discuss what to consider as a lawyer seeking an order on consent. Consent Orders - Hull on Estates Podcast #91 Posted on January 3rd, 2008 by Hull & Hull LLP David Smith: Hello and welcome to Hull on Estates...
2008 OBA Annual Institute - Trusts & Estates Section
Posted on January 03, 2008Estate planning and estate litigation have become more complex because of the dynamic of today’s family and the financial consequences that accompany that dynamic. This year’s OBA Annual Institute Trusts & Estates program looks at how planning can work or not work (and how litigation may arise), depending on the steps taken by the players involved and especially by those who might end up thwarting it...
LOOKING FORWARD TO 2008
Posted on January 02, 2008I hope everyone had a great holiday. With the close of 2007, we turn and look to the promise of 2008. In looking ahead to 2008 many may wonder if they have properly protected and provided for those they intend to protect should something unexpected happen to them...
The Process of Administering an Estate - Hull on Estate and Succession Planning Podcast #93
Posted on January 01, 2008Listen to The Process of Administering an EstateThis week on Hull on Estate and Succession Planning, Ian and Suzana talk about the first, pre-probate stages of administering an estate.
Executor Obligations - Hull on Estate and Succession Planning Podcast #92
Posted on December 25, 2007Listen to Executor ObligationsThis week on Hull on Estate and Succession Planning, Ian and Suzana discuss what to anticipate as an executor and how to ensure that you are well prepared for your duties.
Happy Holidays
Posted on December 21, 2007This is our last blog of 2007!Thank you for reading our blog posts over the past year. We have enjoyed preparing them. We hope that we have been informative.As always, if you have any questions, comments or suggestions, please fell free to contact any of us...
Interest Not Payable on Insurance Proceeds Until Declaration of Death
Posted on December 20, 2007Interest is normally paid on the proceeds of a policy of life insurance thirty days after the insurer receives sufficient evidence of the claim. The requirements are mandated by statute. What happens, however, where the insured “disappears”, and the beneficiary brings an application for a declaration of death? Is interest payable from the date of death (as declared by the court), or from the date of the declaration itself?This issue was considered by the Court of Appeal of Manitoba in Antonation v...
Coping With Loss
Posted on December 19, 2007As estates lawyers, we interact with clients dealing with the loss of a friend or relative on a daily basis. In our role as estate litigation counsel or in advising on the administration of an estate, we can easily overlook the very real and emotionally charged aspects of coping with a loss...
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