Posts tagged ‘estate’

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.

 

March 17, 2016

First Ontario Physician-Assisted Death Approved

Justice Paul Perrell of the Ontario Superior Court of Justice today granted the application of an 81-year-old man, permitting him to proceed with a physician-assisted death.  Known as A. B., the applicant has aggressive, advanced stage lymphoma.

The application is the first granted in Ontario since the Supreme Court of Canada’s decision in Carter.  A. B. met the Superior Court of Justice’s test for an exemption under Carter.  The test is a temporary measure put in place while the federal government deals with a legislative framework for physician-assisted death.

Read more here and here

February 1, 2016

David Bowie’s Will

According to reports, aside from what appear to be a couple of generous bequests (what is Possum Inc.?), David Bowie, or should I say David Robert Jones, has left most of his real estate and 50% of the residue of his estate to his wife Iman.  25% of the residue will go to each of his two children (one real estate property goes to David and Iman’s daughter).  I suggest litigation should be unlikely with this division but …

Here is The Guardian’s story.

Here is the New York Post’s story.

Bowie fans will know that he took the stage name “Bowie” because in the early years another Brit named David Jones was enjoying great (if fleeting) fame with The Monkees.

January 27, 2016

What happens to those loyalty points when you die?

The issue of what happens to “digital assets” when a person dies has been a hot topic lately – what about those loyalty points?

 

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.

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.

November 26, 2014

Whose Life Insurance is it Anyway?

A trial decision from the British Columbia Supreme Court recently caught my eye because it dealt with the interesting interplay between life insurance policies and separation agreements.  In Milne Estate v. Milne, a separation agreement required a husband to maintain a life insurance policy in his name, naming the wife as beneficiary.  He later changed the beneficiary to a new common law spouse.  This is not an entirely uncommon occurrence.  The husband died before his obligations under the separation agreement ceased.

The issues in the case were as follows:

  1. Because the husband was required by the separation agreement to name the wife as beneficiary, could the new beneficiary be deemed to hold the insurance proceeds as constructive trustee for the wife?
  2.  Was the estate liable for breach of contract?
  3. If the estate was liable for breach of contract, what is the measure of damages? – the full amount payable under the policy or only such amounts as are required to meet the policy holder’s obligations under the separation agreement?

In dealing with the issue of a constructive trust, the Court cited and followed the Supreme Court of Canada decision in Soulos v. Korkontzilas.  Soulos holds that, under the umbrella of good conscience, constructive trusts are recognized as a remedy for wrongful acts such as fraud and breach of duty of loyalty, as well as to remedy unjust enrichment. However, the Court went on to state that the remedy should be used restrictively, and set out four criteria for the imposition of a constructive trust:

  1. The defendant must have been under an equitable obligation, being one recognized by courts of equity, in relation to the activities giving rise to the assets in her hands
  2. The assets held by the defendant must have resulted from a breach of her equitable obligation to the plaintiff;
  3. The plaintiff must show a legitimate reason for seeking a proprietary remedy, either personal or related to the need to ensure that others like the defendant remain faithful to her duties; and
  4. There must be no factors which would render imposition of a constructive trust unjust in the circumstances.

In the context of this action, the Court found that these criteria were not met.  While it found that relationships between separated spouses can (in the right circumstances) result in fiduciary obligations, once formalized in a separation agreement, the obligations are primarily contractual and equity will not apply.  That was the finding in this case and the Court was therefore unwilling to impose a constructive trust on the new beneficiary.  The new beneficiary was entitled to the insurance proceeds.

As for the issue of contract, the Court did find that the failure to maintain the life insurance policy in the name of the former spouse resulted in a breach of the separation agreement for which the estate was liable for damages.  The issue was the measure of damages – was it the full amount payable on death under the insurance policy, or only such amounts as the deceased was liable for under the separation agreement, being primarily support obligations?

After reviewing relevant Court of Appeal decisions in Ontario and British Columbia, the Court concluded that the level of damages depended on the wording of the separation agreement.  If the separation agreement stated that the life insurance policy was to act as security for the obligations of the deceased under the separation agreement, the level of damages would be determined by and limited to those obligations.  However, if the obligation to maintain an insurance policy was not stated to be security for the obligations of the deceased, the level of damages for the breach is the full amount payable under the policy.

In this case, while there were certain connections in the separation agreement between support obligations and the requirement to maintain the insurance, it was not clearly stated in the agreement that the policy was to act as security for the performance of the husband’s obligations.  Following the Ontario Court of Appeal in Turner v. DiDonato, the Court found that the obligation to maintain life insurance was a stand-alone obligation; i.e. not security for the husband’s obligations under the separation agreement.  As result, the wife’s entitlement to damages against the estate was the full amount payable upon death under the life insurance policy.

The end result is certainly interesting as the death benefit is in effectively payable twice.

March 24, 2014

Limitations and the Doctrine of Fraudulent Concealment

At common law, an action in negligence or for an intentional wrong is not permitted against or on behalf of a deceased person. The right to sue arises from statute, in Ontario the Trustee Act (s. 38). As a result, compliance with the Act is a must. The Act includes its own limitation period for actions, providing that an action under section 38 “shall not be brought after the expiration of two years from the death of the deceased”. Unlike the Limitations Act, 2002, there is no “discoverability” factor to be considered.  The date is fixed.
However, like most rules, there is an exception. This limitation period can be extended or “tolled” under the equitable doctrine of “fraudulent concealment”.  In other words, where a party has actively concealed wrongdoing, he or she cannot rely on the statutory limitation period to frustrate an action. In order to show fraudulent concealment though, the party asserting concealment must show:
(a) the parties are in a special relationship with one another;
(b) given be nature of this relationship, the conduct complained of amounts to an “unconscionable thing” for one to do to the other;
(c) the person conceals the right of the other (either actively, or as a result of the manner in which the act that gave rise to the right of action is performed)
This doctrine was recently considered in by the Ontario Superior Court of Justice in Rajmohan v. Solomon Family Trust. At issue was whether victims of a mortgage fraud could sue the estate of their lawyer more than two years after his death. The lawyer was not a party to the fraud but did not discover it.  The Court found that the requisite special relationship existed and that there had been concealment because the facts surrounding he lawyer’s actions only became evident after a review of his file. However, while the Court was very critical of the manner by which the lawyer handled the transaction, such actions were at best negligent and did not amount to an “unconscionable thing”.  As a result the doctrine could not be applied to toll the limitation period and the action was dismissed.
Updated:  The Court of Appeal upheld the decision of the Motions Judge
January 13, 2014

Excellent Judicial Analysis of Tests on Passing of Accounts in Ontario

A recent Ontario Superior Court of Justice decision provides a very good analysis of the tests to be applied in passing the accounts of both an attorney under power of attorney and an estate trustee – Re Aber Estate

July 24, 2013

A Public Debate Over the Wisdom of Gandolfini’s Will

I am always amazed at the attention that a celebrity’s will can garner. On the bright side, it draws attention to the need for good estate planning – whether you are Tony Soprano or John Q. Public.

http://business.financialpost.com/2013/07/22/a-public-debate-over-the-wisdom-of-gandolfinis-will/