Tuesday, November 1, 2011
Los Dias De Los Muertos, the Days of the Dead is a traditional Mexican celebration honouring the dead. It is also celebrated around the world. The celebration takes place on November 1st and 2nd at the same time as the Catholic holidays of All Saints' Day (November 1) and All Souls' Day (November 2)...
Firearms – What to know about making a gift of a firearm
Friday, August 5th, 2011
In today's society, individuals want to gift all sorts of personal property to beneficiaries, including firearms. So, when talking to clients that wish to gift firearms some things to consider are: Have they spoken to the beneficiary about receiving the firearm? Does the beneficiary want the firearm? Should the firearm be gifted ...
Amendments to the Estates Administration Tax Act
Wednesday, July 27th, 2011
In May of 2011 Bill 173, Better Tomorrow for Ontario Act (Budget Measures), 2011, received royal assent. Schedule 14 amended the Estates Administration Tax Act ("EATA") to give power to the Minister of Revenue to conduct assessments and reassessments of the taxes paid, to create a duty on estate trustees ...
Can a will be written on any surface?
Monday, July 11th, 2011
In 1984 in Australia a man wrote a will on the wall of his bedroom. In London England it is rumoured a will was written on the door of a man's house in red chalk. In Saskatchewan a will was written on a tractor's fender. A pilot ...
Wine – How Liquid is it Really?
Thursday, June 30th, 2011
For some estates, wine, like other personal effects, can be just as, or even more valuable or personal than other personal items. Like other personal items, wine can be gifted and distributed to a named beneficiary or class of beneficiaries. And I suspect, like some personal effects, can ...
Screening Tests: Don't be Fooled
Wednesday, June 22nd, 2011
"Capacity" is a legal construct, not a medical diagnosis, and therefore, it can be difficult to determine. Despite this, the medical profession has influenced the area of capacity and using medical parameters, has developed "screening tests" intended to be guidelines or "red flags" to investigate further. The most ...
Barriers to Communication Masked as Symptoms of Incapacity – A Reminder
Tuesday, June 14th, 2011
Last week, in my blog entitled "Red Flags of Incapacity", I mentioned that certain barriers and physical changes associated with aging can be mistaken for signs of incapacity. As professionals, we need to be able to separate these from actual signs of incapacity, and work to reduce or eliminate their ...
Monday, June 6th, 2011
In her blog on Friday, Elaine Blades asked what diminished capacity may look like, providing a natural lead-in to our June series of capacity blogs. Capacity can seem a nebulous concept at times. It is to be presumed unless there is clear evidence to the contrary, and is domain-specific rather ...
Title: RESP's – Wrinkles and Warts
Friday, May 27th, 2011
As we know, a Registered Education Savings Plan ("RESP") can be a good vehicle to help parents set aside funds for their children's post-secondary education in Canada, mainly because a parent can contribute up to a maximum of $50,000.00 for each child that is named as a beneficiary in a ...
Souls of the Sea – Unique Alternatives to Traditional Burial Practice
Wednesday, May 18th, 2011
Last week we wrote on post cremation memorial space flights as an alternative to traditional burial practices. This week we look to alternatives that exist in the sea. A new underwater memorial reef off the coast of Florida, Neptune Memorial Reef, is part of an emerging trend to meet the demand ...
Fire in the Sky – Post Cremation Memorial Spaceflights
Tuesday, May 10th, 2011
In today's modern society some individuals are looking for unique alternatives to traditional burial practices. Space burials are offered by a company called Celestis, an affiliate company of Space Services Inc. A deceased individual can venture into space as part of a real space mission, alongside a commercial or scientific satellite and ...
Healthcare – A Canadian's Right or Responsibility?
Monday, May 2nd, 2011
Since 1947 when Tommy Douglas introduced "universal health care" Canadians have struggled with healthcare – as a funding issue and as a philosophical issue. In 1990 Ontario spent $20B on healthcare. In 1999 it was $21.6B. Ten years later by 2009 it had mushroomed to $45.2B and by 2023 – ...
Discovery of an attorney for property's action in a will contest case
Thursday, April 21st, 2011
In Papak v. Papak, the deceased had executed a will in 2002 leaving everything to the defendants. In 2006 the deceased executed a new will leaving everything to his sister in law that cared for him. The plaintiff refused to answer questions in discovery relating to her actions as power ...
Wednesday, April 13th, 2011
Most of us these days carry a cell phone (and now more prevalent smart phones) but do we really use them to their fullest potential. A cell phone is great if you are caught in a snow storm and need to call for a tow but what happens if you ...
Tuesday, April 5th, 2011
Courts are still not generous when awarding compensation for services rendered for personal care to a caregiver or even an attorney for personal care. It is still a labour of love. In the recent case of Re Kalczynski Estate, Justice Ramsay had the chance to change this. One of three daughters ...
Presumption of Capacity and Duty of a Solicitor
Monday, March 28th, 2011
A person who is over the age of 18 is presumed to be capable of entering into a contract, and the rest of the world is entitled to rely upon this presumption unless they have reasonable grounds to believe otherwise. However, the court in England was recently asked the question ...
Marriage, Separation and Divorce
Friday, March 18th, 2011
A change in personal circumstances, however drastic and life changing, does not always have the same legal significance or effect that clients expect. The most obvious yet less known example of this is separation and marriage. Whereas marriage can revoke your Will (and will, where your Will is not made ...
Thursday, March 10th, 2011
Perhaps because tax season is upon us, or perhaps just by way of coincidence, I have noticed that I have been asked to explain estate planning issues relating to RRSPs more frequently than usual in recent weeks. Most people seem to understand the rollover associated with naming a spouse as beneficiary ...
Wednesday, March 2nd, 2011
In a recent case, Gibbon Estate v. Sleeping Children Around the World, 2010 ONSC 6355, the Court was tasked with determining which of three testamentary documents constituted the deceased's final Will. The testator left behind: a) A handwritten will executed in 1989 and attested by two witnesses (the "1989 Will"). The ...
Exemplary Damages in Estate Matters?
Tuesday, February 22nd, 2011
A recent Supreme Court Decision on appeal from Quebec found that under the Quebec Charter a claim for punitive damages could be made against an estate. In de Montigny v. Brossard (Succession), the deceased defendant had strangled his former spouse and drowned his children then committed suicide. The mother and ...
Collaborative Law: Does it Have a Place in the Estate and Trusts World?
Friday, February 11th, 2011
At the recent OBA Institute Clare Burns spoke on the topic of collaborative law in resolving estate disputes. She concluded that collaborative law should be seriously considered for many kinds of estate and trust disputes. Collaborative law is best known in the family law realm to try to avoid the often ...
How do you help your clients protect their estate from a moral claim?
Thursday, February 3rd, 2011
As we know, in British Columbia it is very common for applications to be brought to have a deceased's will varied because one or more of the deceased's children was disinherited. The courts there rely consistently on a moral obligation of a parent to leave their estate to their children ...
Acceleration: Is a Life Interest Always a Life Interest
Wednesday, January 26th, 2011
A woman dies, leaving a discretionary life interest in her will for her spend-thrift brother. Her will provides that upon her brother's death, his only son is to be the remainder beneficiary. For years after his sister's death, the brother accepts payments of income from the trust. He is not very ...
How Do You Donate Your Body To Science?
Tuesday, January 18th, 2011
Many clients include their wishes regarding cremation and/or burial in their Wills. Some people provide a wish regarding organ or tissue donation, which is also often evidenced by an organ donor card. Still others decide to donate their bodies to science: what do they need to do to ensure that ...
advising attorneys for property
Monday, January 10th, 2011
Over the holidays, a colleague shared a story about advising an attorney for property. The attorney's elderly uncle was hospitalized after a stroke, but was mentally capable. She was asked to attend to his banking and to bring him items from his home, where she had not been in several ...
Are the Rules of Civil Procedure at times to rigidly applied?
Thursday, December 30th, 2010
In June an application for a certificate of appointment of estate trustee with a will was referred to hearing when a deficiency notice was issued by the estate registrar as the applicant had only sworn one affidavit that included the affidavit of execution and explaining the hand writing on the ...
RDSPs as Estate Planning Tools: Worthwhile?
Tuesday, December 21st, 2010
The Registered Disability Saving Plan ("RDSP") is a recent creation, intended to help parents and others save for the long-term financial security of a disabled person. When first announced, there was a lot of excitement about the utility of RDSPs as estate planning tools. Have they lived up to all ...
Monday, December 13th, 2010
A recent decision of Justice Brown of the estate court in Toronto comments on the increased litigation of the "so called battle of competing powers of attorney" and calls for legislative change. "May I pause here and say that I have reviewed much of the material involved in the litigation initiated ...
Friday, December 3rd, 2010
Abatement is the reduction of some or all of the gifts in an estate because there are insufficient assets to cover all the gifts. The courts have established a hierarchy of gifts such that not all gifts will abate equally. For example gifts of specific real property will be abated ...
The intersection of sections 8 and 10 of the children's law reform act
Thursday, November 25th, 2010
Do you need to rebut the presumption of paternity in order to be successful at a request for DNA testing? I argue no, and the recent case of Proulx v. Kelly* considers this point. Section 8 of the Children's Law Reform Act (CLRA) sets out 6 situations where a child's paternity ...
Are you thinking about the Long Term Care Homes Act, 2007?
Wednesday, November 17th, 2010
After a long wait, the Long Term Care Homes Act, 2007 (the "Act"), came into effect on July 1, 2010, and is now the single legislative authority over long term care homes. The Act is comprehensive and is made up of ten Parts, and with the regulations, replaced three statutes: ...
Be wary of what you ask for Tuesday, November 9th, 2010
Courts have the power to order assessments of a person's capacity to manage their property and/or personal care. Such an order is often necessary in situations where there is a dispute as to whether a person is capable or not or the "degree" of incapacity. However, when asking for an assessment ...
Monday, November 1st, 2010
A previous blogger discussed the capacity to marry, another area of capacity is the capacity to make a gift. For a gift to be valid there must be the following: the donor must have the intention to make a gift; there must be acceptance of the gift; and there must be delivery of ...
Friday, October 22nd, 2010
Professionals and lay people have no doubt been part of or heard about the increased awareness of the issues facing the elderly whether vulnerable, capable or not. Most however, are not aware of section 331 of the criminal code. Section 331 of the Criminal Code of Canada states: 331. Every one commits ...
Euthanasia…is it coming to Canada?
Thursday, October 14th, 2010
In the National Post yesterday there was an interesting article on Dr. Nitschke and his workshop on "Safe Exits". He lectures on safe ways to commit suicide if you are terminally ill. He advocates for the right to choose how one will die and planning for that event, if necessary. ...
Proportionality: Is there a Place for It in the Estates and Trusts World?
Tuesday, October 5th, 2010
Proportionality is the new buzz word. For us that do litigation, proportionality is associated with costs. Since the paradigm shift about ten years ago in costs in estate litigation such that costs are to now follow the cause rather than being paid out of the estate automatically, proportionality has become the ...
Upon Reflection: Be The Best That You Can Be … Some Thoughts
Monday, September 27th, 2010
The beginning of a school year and the beginning of a new season, since our calendar still seems to be based on a September-June year. With this comes (at least if you still have children in school) the inevitable notices, newsletters and forms to fill out, and, if you have ...
No Heroic Measures Clauses – putting your end of life decisions in writing
Friday, September 17th, 2010
Did you know that if you do not have a prior capable wish concerning your end of life decisions and you are not capable of making the decision yourself your doctor can put a do not resuscitate on your chart? Ontario statutorily allows for the use of no heroic measures clauses, ...
Can you find yourself to be incapable and then argue that you're not?
Thursday, September 9th, 2010
In M. Re, M believed that he was not managing his money properly as he ran out every month and asked to be assessed. He was found not capable of managing property because he ran of money each month and because he used Interac which was "expensive". After he was ...
