Archive for ‘Uncategorized’

February 10, 2017

How to Get Dropped from the Will

In a recent Ontario case, Quinlan v. Caron, a daughter sought to set aside the will of her mother. An earlier will left the estate to the daughter and a son. A later will left the estate to the son alone. The daughter sought to set aside the will on grounds of undue influence. The case provides a good analysis of the legal requirements for proving undue influence. The judge found there to be evidence of a real estrangement between the mother and daughter  and therefore valid reasons why she might have left the daughter out of the final will, leading to a finding that there was no undue influence.

The kicker for the judge though appeared to be evidence that when the father passed away, the daughter purchased a cemetery plot for him and one for herself (but apparently not the mother) and a headstone that said “Father dearly loved by [daughther] and grandchildren” – no mention of the mother or son. You might say from at least that moment forward, the daughter’s poor relationship with her mother was carved in stone (I hear you groaning by the way).

April 14, 2016

Medically Assisted Death Bill Introduced in Parliament

On April 14, 2016 Parliament introduced Bill C-14 to amend the Criminal Code and related statutes in response to the Supreme Court of Canada’s Carter ruling on medical assistance in dying.

The bill removes criminal liability for assisting a person to end her or his life if carried out in compliance with the new s. 241.1.

The bill first defines “medical assistance in dying” as the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death, or the prescription or provision of such substance to be self-administered.

In order to be eligible to receive medical assistance in dying, a person must:

  • be 18 years of age and capable of making decisions with respect to their health;
  • have a grievous and irremediable medical condition;
  • have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
  • give informed consent to receive medical assistance in dying.

Clearly the most debated portion of the bill will be defining what constitutes a “grievous and irremediable medical condition”.  The government has defined it in the bill as requiring all of the following:

  • a serious and incurable illness, disease or disability;
  • an advanced state of irreversible decline in capability;
  • enduring physical or psychological suffering that is intolerable to the person and cannot be relieved under conditions that they consider acceptable; and
  • natural death being reasonably foreseeable, taking into account all medical circumstances, without a prognosis necessarily having been made as to the specific length of time that a person has remaining.

The requirement of “an advanced state of irreversible decline in capability” and “natural death being reasonably foreseeable” have been viewed as overly restrictive by some, but are largely approved of by the medical community.

Safeguards are included in the bill, requiring that before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, they must:

  • be of the opinion that the person meets all of the eligibility criteria above and obtain a written opinion to that effect from another, independent medical practitioner or nurse practitioner;
  • ensure that the person’s request for medical assistance in dying was made in writing, signed and witnessed after the person was informed that their natural death has become reasonably foreseeable;
  • ensure that the person has been informed that they may, at any time and in any manner, withdraw their request;
  • ensure that there are at least 15 clear days between the day on which the request is signed and the day on which the medical assistance in dying is administered, unless a shorter period is deemed appropriate in the circumstances;
  • immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying.

The bill extends protection to pharmacists who prescribe substances and to others who assist the medical practitioner or nurse practitioner is administering assistance in dying.  A criminal offence is established for failing to follow the safeguards, with potential jail sentences of not more than 5 years.

No manner of providing medical assistance in dying is set out.  The bill only requires that assistance be provided with reasonable knowledge, care and skill and in accordance with any applicable provincial laws, rules and standards.  Indeed, as health care is within provincial rather than federal jurisdiction, it will be up to the provinces to implement and oversee the practice of delivering medical assistance in dying.

Much debated before the bill was introduced were issues such as the eligibility of minors, mental illness and advance consent.  Minors are clearly not eligible and will be the subject of further study.  As for mental illness, it is not specifically deemed ineligible and indeed the definition of a grievous and irremediable medical condition illness references psychological suffering.  However, the issue of mental illness will undoubtedly be problematic as mental illness may affect the ability of a person to give informed consent.  Connected to this issue is the matter of advance consent.  What happens if a person has a serious and incurable illness, disease or disability but is not yet in an advanced state of irreversible decline in capability?  If they are suffering from a progressive cognitive disease, by the time their disease and suffering has advanced, they may no longer be capable of giving informed consent to treatment.  This bill would not allow that person to give consent to medical assistance in dying before their cognitive abilities decline.

The government has taken a cautious approach with this bill.  Given what is really a short period of time to deal with such a large social issue, this was not unexpected.  Once this bills passes, whether intact or with amendments, the debate will continue and there will undoubtedly be many calls for amendment, both for more restrictive and for more liberal measures.

 

February 21, 2016

Health Flash – Ageing

A poignant reminder from my good friend Julie Zimmer.

Health Continuum

flash-297580_640People who have a positive attitude towards their own ageing live, on average, 7.6 years longer than people with more negative views. They eat a healthier diet, exercise more and recover more quickly from illnesses. – Yale University

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January 23, 2016

Don’t spend that life insurance money too quickly!

Life insurance can be an effective way to leave a legacy.  It allows you to benefit a loved one and, unless the insured’s estate is the beneficiary, avoids the requirement that funds pass through probate.  However, life insurance proceeds are not entirely free and clear of estate obligations in Ontario – so beware before spending that money (and do not disregard notice of court proceedings) – as one man’s daughter learned in the recent case of Bormans v. Bormans Estate.

Sections 72(1) (f) and (f.1) of the Ontario Succession Law Reform Act deem life insurance proceeds to be an estate asset for the purpose of determining the rights of a dependant to support from the estate.  Insurance proceeds therefore may be available to pay support if the other assets of the estate are insufficient to do so.  In Bormans, Mr. and Mrs. Bormans divorced after 38 years of marriage.  Mr. Bormans was to pay support to Mrs. Bormans and warranted to her that she was named as beneficiary of his company life insurance policy.  When he died, without assets, Mr. Bormans was in arrears of his support obligations.  To Mrs. Bormans’ surprise, the company policy had been cancelled but Mr. Bormans had purchased another life insurance policy, naming his daughter as beneficiary.  The proceeds of that policy had been paid to the daughter.  The daughter, despite notice of a  court application by Mrs. Bormans for dependant’s relief, proceeded to dispose of most of the insurance proceeds.

The Court found that Mrs. Bormans was a dependant of Mr. Bormans’ estate.  As a result, the Judge determined that most of the policy proceeds paid to the daughter should have been available to satisfy the estate’s support obligations to Mrs. Bormans.  The Court placed emphasis on the fact that Mr. Bormans had warranted that Mrs. Bormans was the beneficiary of a life insurance policy.  The daughter was ordered to pay to Mrs. Bormans most of the insurance proceeds, with the exception of some amounts spent prior to her receiving notice of the court application.  As the daughter had already used a large part of these proceeds, she became personally liable to repay these amounts.

January 14, 2016

A Lesson from David Bowie’s Final Album

Source: A Lesson from David Bowie’s Final Album

January 10, 2016

Exciting Progress in Alzheimer’s Research

Given the dearth of new treatments for Alzheimer’s, it is good to read about the exciting advances made by Stanford University and the Univerity of Southampton.

See The Telegraph story on the Stanford research here.

See the BBC story on the University of Southampton research here.

Read about the University of Southampton research here.

 

September 4, 2015

More Trouble with Pension Benefits After Death

In a previous post, we looked at the issue of the definition of a “spouse” under the Pension Benefits Act where a deceased had divorced and was living in a common law relationship with another partner.  One of the key takeaways from the case was the importance of designating beneficiaries under pension plans so that the intentions of the pensioner are clear.  The importance of designation was emphasized again in the recent Nova Scotia Court of appeal case of MacEachen v. Minnikin.

In that case, under a separation agreement spouse number 2 was to be designated as beneficiary under the deceased’s Canada Post pension and he was not to change that designation before such time as he might remarry.  If he did not remarry, spouse number 2 would remain as beneficiary.  If the pensioner did remarry, spouse number 2 agreed under the separation agreement that “she will execute any and all necessary documents in order to release her as a beneficiary in the aforementioned plan”.

As you might guess, the pensioner did remarry but took no action to either change the beneficiary designation with the plan administrator or to require spouse number 2 to execute any document(s) to release her as a beneficiary.  Following the pensioner’s death, spouse number 3 brought an action seeking entitlement to survivorship benefits under the pension on the basis of unjust enrichment.  Both the Court at first instance and the Court of Appeal found in favour of spouse number 2.  On a legal analysis, spouse number 3 was not able to establish the elements of “unjust enrichment”.  However, for our purposes, it is the factual findings of the court that illustrate the lesson from this case.

With respect to the separation agreement, the Court found that the provision dealing with a release of spouse number 2 as beneficiary did not act to create a change of beneficiary but required further action (i.e. the deceased doing something to get that release in writing).  Furthermore, under the separation agreement the pensioner retained control over when a beneficiary change would be requested under the plan.  He also knew that he would be required to advise the plan administrator in writing of a change of beneficiary.  The pensioner had taken steps to change beneficiary designations under an insurance policy so presumably had turned his mind to beneficiary issues in some manner.  Given these findings, the Court was loathe to make a finding that would overturn the written beneficiary designation under the plan.

Could a tighter drafting of the separation agreement have changed the outcome of this case; for example stating clearly that upon the pensioner remarrying, spouse number 2 is deemed to have released any interest in the pension? – perhaps.  The obvious answer though it is that, for estate planning purposes, all potential assets must be addressed in their own context and parties cannot rely on other contracts to govern entitlement.

July 14, 2015

Penny Wise or Pound Foolish?

As a litigator, I see a lot of the downside to do-it-yourself estate planning.  The recent Ontario Court of Appeal decision in Foley v. McIntyre is a good example.  At issue were certain inter vivos (ie. before death) gifts of proceeds of savings bonds by a father to one of his two children.  While there may have been other reasons for the gifts, the decision appears to indicate that the primary reason for passing on funds before death was to avoid probate and any applicable estate taxes.  Avoiding probate may have valid estate planning objectives.  However, as in this case, consideration should be given to the potential for such gifts to be attacked.  Here, the gifts were left open to a claim by the non-recipient child under the doctrine of resulting trust.  Under this doctrine, the law presumes that on a transfer of money from a parent to a child, the child holds the funds in trust for the parent.  To rebut the presumption, the donee child is required to lead evidence that indeed the parent intended to bestow a gift.  If the gifting parent is now dead, that may not be so easy.

While the trial judge and the Court of Appeal found that there was sufficient evidence to rebut the presumption of resulting trust, I suggest that there were danger signs.  For example, the donee child also held power of attorney.  As well, two of the gifts were made after the parent had suffered a second stroke and was hospitalized.  Fortunately for the donee child, the parent had provided written instructions to his financial advisor regarding the gifts and the trial judge accepted the evidence of a geriatric psychiatrist who found the parent to be competent with respect to his finances (although not with respect to personal care) and rejected the evidence of an expert saying the opposite.

What is also interesting about this case is that the parent’s will left the savings bonds to the donnee child in any event.  Had he left the bonds in his estate, the resulting trust claim could not have been raised.  I suggest that the savings in probate fees and estate taxes were more than offset by the litigation costs incurred in fighting over the gifts made to avoid probate.

Now there may have been other very good reasons for the father in this case to make the gifts that he did.  Perhaps he wanted to see the good that the money could do before he died.  If that was the case – more power to him.  If however, avoiding probate is the only reason for gifting before death, a little professional advice will go a long way.

June 29, 2015

An Unfortunate Sign of the Times

Bankruptcies of seniors on the rise.  As reported by the CBC.

June 1, 2015

Dangers of Fraud/Forgery in Wills

I came across an interesting case recently from the Ontario Superior Court of Justice that should be a warning for everyone involved in the administration of wills.

In Paton Estate v. Ontario Lottery and Gaming Commission (“OLG”), two estates sued OLG for damages resulting from a loss of assets defrauded from the estates and gambled away in casinos operated by OLG.  The proceeding before the court was a motion to dismiss the action as disclosing no reasonable cause of action.  The motion succeeded and the action was dismissed as the court found that no duty at law exists in a casino to prevent problem gamblers from losing money.

What was striking about the case though was how the funds appear to have been stolen from the estate.  The fraudster was a clerk in the office of a lawyer assisting with real estate transactions and the administration of estates. Her actions are well known locally but primarily related to fraudulent real estate transactions, for which she was ultimately convicted on criminal charges.  On the facts as related in this action, she forged the name of at least one testator on a  will naming her as estate trustee.  She managed to sell two properties and gain access to $1,500,000.  Apparently, she also defrauded other estates amassing estate losses of over $4,000,000.  This was an extreme case and there was admitted professional misconduct by the overseeing (or rather not overseeing) lawyer for which he was disciplined.  Nonetheless, the case illustrates that estates are not immune from the frauds that have plagued real estate and mortgage lending lawyers for years.

While oversight of the clerk was clearly lacking and the lesson for lawyers is obvious, less obvious is the question of the care that should be taken by a prospective estate trustee to guard against potential frauds of this type.  I do not know many of the facts of this particular situation so make no comment on the actions of anyone involved with the estates.  It would appear though that the fraudster had to apply for and obtain a certificate of appointment of estate trustee before selling the estate properties.  Obtaining the appointment, listing and selling the properties takes time.  If a person knows that she or he has been named in the will as estate trustee and has accepted that role, what can they do to avoid potential fraud?

While the named trustee is entitled to rely on counsel representing the estate, his or her duty to the estate may require that she or he make reasonable inquiries of counsel regarding the status of the appointment and procedures going forward.  If it does not appear that progress is being made, or instructions do not appear to have been followed, closer examination of the actions of counsel may be required.  While it is unlikely that a prospective estate trustee will be able to root out a good fraudster, care should be taken at all steps of the administration process to reduce the risk.