Author: Doreen So

23 Jul

Discovering Blue Zones

Doreen So General Interest, Health / Medical, In the News, Uncategorized Tags: , , , , 0 Comments

 

 

 

 

 

 

 

 

 

 

I learned about Blue Zones recently through Zac Efron’s new Netflix travel show, Down to Earth with Zac Efron.  Episode 4 brings Zac and the audience to Sardinia where Zac meets with Dr. Giovanni Pes, nutritionist and medical statistician, and Dr. Valter Longo, bio-gerontologist, to discuss their research on the centenarians who live there.  Blue Zones are regions of the world where people live much longer on average than everywhere else.  This concept was coined by Dan Buettner and there are five Blue Zones in the world:

  • Sardinia, Italy
  • Okinawa, Japan
  • Loma Linda, California (side note: California is also home to some of the world’s oldest-known living trees)
  • Nicoya Peninsula, Costa Rica
  • Icaria, Greece

According to Wikipedia, these Blue Zones have the highest rates of centenarians (i.e. people age 100 or above), and the people who live there suffer a fraction of the common diseases that ails the rest of the world and they enjoy more years of good health.

During the episode, Zac also visits a local woman who was born on April 15, 1920.  She was 98 years old when the episode was filmed.  Her husband had lived to 103 years old before his passing.  According to Dr. Longo, it is extremely rare to have a couple with such longevity.  Thereafter, ­­Liliana was asked to do a cognitive test that one-third of centenarians or people with dementia will have trouble with, but Liliana does this with flying colours by accurately drawing the numbers on a clock and overlapping shapes on camera.

Liliana’s test was administered in her native language.  In North America, the Montreal Cognitive Assessment (also known as the MOCA) is commonly administered to seniors as a screening tool for cognitive impairment like dementia.  The MOCA is in the news recently as a result of Donald Trump’s interview with Chris Wallace on Fox News Sunday.  Trump didn’t actually identify the exact cognitive test involved but he was proud to have “aced” the test.

Thanks for reading!

Doreen So

21 Jul

Fantasy Tuesday: How to #FreeBritney in Ontario

Doreen So Capacity, Guardianship, In the News, Litigation, Uncategorized Tags: , , 0 Comments

The #FreeBritney movement is a social media movement driven by the fans of Britney Spears, and it has been trending recently this month according to Global News.  Britney’s fans are concerned that Britney is being mistreated by her legal conservators.  Britney Spears has been under a court-ordered conservatorship since 2008.

In the years leading up to Britney’s conservatorship, there were a multitude of public incidents that called Britney’s wellbeing into question, the most iconic of which was perhaps the viral, tabloid photograph of Britney shaving her head in 2007.  In 2008, Britney was involuntarily hospitalized after police were called to her home.  Thereafter, Britney was placed under an interim conservatory order, which was ultimately made permanent.  Britney’s conservatorship meant that her father, James Spears, and lawyer, Andrew Wallet, had complete control of Britney’s assets, which is similar to a guardianship of property under the Ontario Substitute Decisions Act, 1992.  James Spears was given control of Britney’s health like a guardianship of person.

Despite being stripped of the right to control her own property and personal care, Britney’s career has flourished in the twelve years after 2008.  During the first year of her conservatorship alone, Britney appeared on television shows and even released a new album (Circus). Britney went on to release 3 more albums after that, and she was the star of a four-year concert residency in Las Vegas (which was excellent in my humble opinion).  Britney was also a judge on the television competition show, X Factor, where the judges of the show mentor and critique contestants on their performances.  For a list of her accomplishments, check out Britney’s extensive Wikipedia page.

In Ontario, a person is incapable of managing property if “the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision” (section 6 of the SDA).

With that in mind, Britney’s role as a judge on X Factor and her reactions on the show seem to show that she was appropriately reacting to the performances of the contestants and that she understood what was at stake in the competition.  However, the lay opinion of her fans (myself included) alone would be insufficient to satisfy the statutory requirements of a motion to terminate guardianship of property and person under Part III of the SDA.  If the motion is brought on a summary basis under section 73 of the Act, the moving party must include one statement from a capacity assessor and one statement by a second assessor or someone who knows the person, which indicate the following:

(a) that the maker of the statement is of the opinion that the person is capable of managing property, and set out the facts on which the opinion is based; and

(b) that the maker of the statement expects no direct or indirect pecuniary benefit as the result of the termination of the guardianship.

Similar statements are required to terminate a guardianship of person.

Earlier this year, Britney’s conservatorship was extended until at least August 22, 2020.

#FreeBritney and thanks for reading,

Doreen So

20 Jul

When and how can your travel insurance be voided?

Doreen So General Interest, Health / Medical, RRSPs/Insurance Policies, Uncategorized Tags: , , , 0 Comments

The late Donald Farb called his insurance company to renew his travel insurance policy before his trip to Florida.  Mr. Farb spent about half an hour with a telephone representative from Manulife to complete the insurance application.  He said “no” to a variety of questions regarding his medications and pre-existing conditions.  Thereafter, the travel policy was issued on the basis of the information provided by Mr. Farb, and Mr. Farb went on his trip.  While he was in Florida, Mr. Farb was unexpectedly hospitalized and he incurred over $130,000 (USD) in hospital expenses.  Manulife later denied Mr. Farb’s claim for reimbursement and took the position that his policy was voided on the grounds of misrepresentation.  Mr. Farb died before his insurance claim was resolved and his Estate commenced a court application to continue Mr. Farb’s dispute with Manulife.

In considering the Estate’s application, Justice Belobaba of the Ontario Superior Court of Justice reviewed the first principles of the Insurance Act and how the Act is designed to protect both the insurer and the insured.  While insurance companies are protected by the insured’s duty to disclose, and the right to void coverage if there was a failure to disclose or misrepresentation, the consumer is protected by the requirement that the application process be done in writing so that the consumer will have the opportunity to review the information provided and to make any necessary corrections before the policy takes effect.

Justice Belobaba found that Manulife’s application process satisfied the requirements under the Insurance Act.  He found that there was no issue with the telephone service provided by Manulife and the way that information is collected verbally from the applicant because the completed application form is emailed, in writing, back to the applicant for verification.  The emailed and mailed copy of the insurance policy also contained a multitude of warnings asking the insured to review their policy carefully before traveling and that “the policy is void in the case of fraud, attempted fraud, or if you conceal or misrepresent any material fact in your application”.

As evidence before the Court, Justice Belobaba was provided with an audio recording of Mr. Farb’s telephone call with the insurance representative, and a copy of the materials that were emailed and mailed to Mr. Farb.  Justice Belobaba found that Mr. Farb had two months to review his answers to the medical questions that were asked of him, and there was no evidence that Mr. Farb ever contacted Manulife to correct his answers, which was sufficient to conclude that Manulife was within its rights to void the policy.

The Estate’s application was dismissed, and you can read the full reasons for decision in Estate of Donald Farb v. Manulife, 2020 ONSC 3037, by clicking here.

Travel insurance should always be top of mind before travelling.  It is a good idea to reach out to your insurance company and review your existing policy and the information contained in the underlying application before you go, especially under the present circumstances with COVID-19.  The issue of whether testing and medical care for COVID-19 will be covered while abroad is important to consider before any travel plans are finalized.

Thanks for reading,

Doreen So

23 Apr

The Will that was Written on a McDonald’s Napkin

Doreen So Estate Planning, General Interest, In the News, Uncategorized, Wills Tags: , , , 0 Comments

The University of Saskatchewan’s College of Law proudly displays the will that was etched onto the fender of a tractor by a dying farmer.  That happened in 1948.  Decades later, the Saskatchewan Queens Bench was similarly asked to determine whether a note handwritten on a McDonald’s napkin is a valid will.

Philip Langan died in 2015.  He was a widower with eight children (Earl was predeceased and Landry died after the napkin was written but before Langan’s death).  Shortly after Langan’s death, two of his children came forward with a McDonald’s napkin that they claim to be their father’s last will and testament.  Ronald and Sharon explained that the napkin was made when their father thought he was having a heart attack at McDonald’s.  Sharon said that she was not there when her father started to write on the napkin but she was there to see him sign his name.  She said he gave the napkin to her and said “This is my will.  I want you to keep this in case something happens”.  A third child, Philip, supported the validity of the will because he was also at the McDonald’s that day.  Like Sharon, Philip did not see his father write on the napkin but he was there when the napkin was given to Sharon and he heard what his father said to Sharon.

Maryann challenged the validity of the napkin because she was skeptical of whether it was in her father’s handwriting.  She also stated that Langan told her that he would not leave a will because “he wanted us to fight like he had to”.  Yet, interestingly enough, an intestacy would still give rise to the same result as the napkin on the consent of the siblings.

The napkin itself was described as follows in Gust v. Langan, 2020 SKQB 42 (CanLII):

“written in pen on a very thin, brown-coloured, paper restaurant napkin reads as follows:

Ron Langan

Dennis Langan

Sharon Langan

Landry Langan

Philip W. Langan

Marann Langan (Gust)

Dallas Langan

Split my property evenly,

“Dad Philip Langan”

The court found that the napkin was a valid holograph will.  Justice Layh was persuaded by the propounders’ explanation that the napkin was made at a time when Langan thought he was having a heart attack “a time when one’s mind would reasonably turn to the question of estate planning, especially in the absence of an existing will. Mr. Langan’s immediate delivery of the will to his daughter, Sharon, and the comment he made to her – as evidenced by both Sharon and Philip’s statements – that she keep the document in case something happened to him, shows a clear testamentary intention.” (para. 22).

While the legal analysis in this case is based on the law in Saskatchewan (unlike Ontario, Saskatchewan has curative legislation that permits substantial compliance), Gust v. Langan is a timely reminder that, in addition to the formal requirements of a holograph will, testamentary intent is crucial in determining whether a document can be given effect as a will.  On the face of the napkin, there was nothing to indicate when Langan intended to divide his property.  The essential characteristic of a will is the intention to dispose of property after one’s death.  Here, the court had to rely on the extrinsic of evidence from Langan’s state of mind and what he said to Sharon.

Should you find yourself in a situation where an emergency holograph will is needed, you may want to refer to Ian Hull and Jordan Atin’s blog on the subject:

https://hullandhull.com/2020/03/emergency-holograph-wills-for-clients-in-isolation/

I would also suggest that regular paper be used, if you have some, for practical reasons or to simply avoid media coverage since this particular McDonald’s napkin has made the news in New York and Australia.

Thanks for reading.

Doreen So

 

21 Apr

Family Trusts and the Tort of Conspiracy in Family Law Matters

Doreen So Continuing Legal Education, Estate & Trust, Executors and Trustees, Litigation, Trustees Tags: , , , , , , 0 Comments

Further to my blog on Monday, the Court of Appeal also released another interesting decision last week with respect to the tort of conspiracy in the context of a family law proceeding.  Leitch v. Novack, 2020 ONCA 257, is an appeal from a summary judgement motion that was brought by the husband’s father, a family trust, and a family company.  Summary judgment was brought because the wife sought damages against the moving parties for an alleged conspiracy that they were intentionally withholding payments to the husband in order to reduce his family law obligations.

The motion judge, in 2019 ONSC 794, held that the conspiracy claim was appropriate for partial summary judgment.  The conspiracy claims were dismissed even though the wife could still pursue a claim to impute additional income to the husband for the purposes of determining his income at trial.  Over a million dollars in costs were later awarded to the husband and the moving parties and there was a subsequent order for security for costs that effectively froze all of the wife’s assets.

The appeal was allowed.  The Court found that there was a material risk of inconsistent results because the wife was allowed pursue her claims that additional income ought to be imputed to the husband despite the motion judge’s finding that there was no unlawful conspiracy.

As for the tort of conspiracy, Justice Hourigan confirms and clarifies the application of this doctrine in the context of family law matters.  The tort of conspiracy is part of the judicial toolbox to ensure fairness and for deterrence.  It is also there for enforcement purposes because the purpose of the conspiracy is to hide income or assets and “a judgment against a co-conspirator will often be the only means which by which a recipient will be able to satisfy judgment” (paras. 46-47).

Justice Hourigan commented that

“a transfer of funds by loan, gift, or otherwise, is not the only way that the alleged co-conspirators could have acted in furtherance of the conspiracy.  If the trial judge is satisfied that [the husband] had an entitlement to funds and that a co-conspirator withheld the transfer of funds to him as part of a conspiracy with the understanding that he would receive the money at some future date, the withholding of funds may itself be an act in furtherance of the conspiracy.  It is not necessary to establish more than an acted-upon conspiracy to conceal [the husband’s] entitlement.” (para. 51).

The costs awards and the preservation order were also set aside.

This decision is certainly important to keep in mind when advising trustees of discretionary trusts.

Thanks for reading!

Doreen So

 

 

 

 

 

 

 

 

 

 

 

 

 

20 Apr

Volk v. Volk: ONCA Refusals and Stay Motion heard April 14, 2020

Doreen So Capacity, Litigation, Power of Attorney, Recently Tags: , , , , , 0 Comments

The motions in Volk v. Volk, 2020 ONCA 256, arose from an appeal of an order to, inter alia, sell a property owned, in part, by Doris Volk, who is incapable of managing her own property, and to pay the net proceeds of sale to Doris’ husband, George.  This case is instructive for how matters are currently proceeding before the Court of Appeal and in general for the scope of examinations under SDA matters.

George is not Doris’ attorney for property.  The attorneys for property are Doris’ daughter, Darlene, and Doris’ sister, Lisa.  George brought an application under the Substitute Decisions Act, 1992 because he claimed that the property was improperly transferred by the attorneys from Doris, as the sole owner, to Doris and Darlene’s daughter, Felicia, as tenants in common.  At the time of the application, the property was registered with a 1% interest in Doris’ name and the rest was registered in Felicia’s name.  Furthermore, the property was occupied by Darlene but George claimed that the carrying costs of the property were paid from Doris’ money in further breach of trust.

George’s application was granted on January 7, 2020 on the consent of Lisa.  Darlene, Felicia, and the Public Guardian and Trustee did not appear or file opposing materials.  The house was sold with a closing date of May 16, 2020.

Darlene and Felicia appeals the order of January 7th on ground that they were not properly served or provided with adequate notice of the application.  They also brought a stay motion with a supporting affidavit from Felicia.  Felicia was cross-examined on her affidavit and she refused a number of questions on the advice of her counsel.  This led George to bring a refusals motion and an request for an adjournment of the motion for a stay pending appeal.

Both the refusals motion and the stay motion were scheduled to be heard before Justice Paciocco on April 14, 2020.  Justice Paciocco noted that the agreement for purchase and sale gave the stay motion added urgency.  The matter proceed on April 14th with counsel for Darlene and Felicia appearing by phone and counsel for George appearing by videoconference.  George’s refusals motion was allowed in part.   Justice Paciocco clarified that the proper scope of a cross-examination on an affidavit is governed by the issues that are relevant to motion.  It includes questions that are relevant to credibility so long as it within the competence of the motions judge to determine (para. 10).  He then goes on to give reasons for why certain categories of questions ought to be answered and why other categories were found to be irrelevant or unfair.  Of note, questions about Doris’ state of mind were properly refused because it was unfair for Felicia to speak for Doris (para. 19).

Since counsel for George acknowledged that further examinations were not feasible as a result of COVID-19, Justice Paciocco ordered a timetable for answers and follow up questions in writing.  The stay motion was adjourned to May 1st.

Thanks for reading and keep well.

Doreen So

23 Jan

Summary Judgment and Limitation Periods in Will Challenges

Doreen So Estate & Trust, Estate Litigation, Litigation, Uncategorized Tags: , , 0 Comments

Earlier this week, I wrote two blogs on the limitations issue in Piekut v. Romoli, 2019 ONSC 1190, 2020 ONCA 26.  The facts in that case were briefly summarized here.

The testators died in 2008.  The family realized there was a disagreement about the validity of their parents’ codicils that year but everything seemed to be on hold until Helen brought an application in 2015 to determine the validity of the codicil.  In response, Krystyna brought a motion for summary judgment to dismiss Helen’s application on the basis it is statute barred pursuant to the Limitations Act, 2002.  This motion was brought by Krystyna because she was interested in maintaining the force and effect of the codicils that gave her certain properties.  Thereafter, Helen cross-motioned for summary judgment on her application.

Rule 20.04 of the Rules of Civil Procedure sets out the basis for summary judgment.  Summary judgment shall be granted if: (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (b) if the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.  The Supreme Court of Canada in Hryniak v. Maudlin, 2014 SCC 7, determined that “a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.”

With that in mind, Justice Dietrich found that Krystyna’s motion for summary judgment was appropriate for the following reasons (see para. 35):

  • There were no material facts in dispute;
  • No additional facts would emerge at trial;
  • The application of an absolute limitation period was generally a fairly straightforward factual analysis;
  • That based on the evidence before her, this matter can be resolved without a trial and that a trial of this narrow issue would be a more expensive and lengthy means of achieving a just result.

The Ontario Court of Appeal agreed with Justice Dietrich’s finding on this point.  The panel emphasized how both parties brought summary judgment motions and filed affidavits with exhibits of their own.

In contrast, a similar summary judgment motion was unsuccessful in Birtzu v. McCron, 2017 ONSC 1420, 2019 ONCA 777 (on the issue of costs, only).  The Court in Birtzu found that summary judgment was not appropriate and ordered costs against the defendant in any event of the cause (with reasons that were unreported).  That said, the defendant was ultimately successful in proving that the plaintiffs were statute barred after a full trial on all issues.

Thanks for reading!

Doreen So and Celine Dookie

21 Jan

Pleadings Matter for Limitation Periods

Doreen So Continuing Legal Education, Estate & Trust, Estate Litigation, Executors and Trustees, Litigation, Uncategorized, Wills Tags: , , , 0 Comments

Today’s blog is a continuation of yesterday’s discussion regarding the limitations analysis in Piekiut v. Romoli, 2019 ONSC 11902020 ONCA 26.  No limitation period was found to apply where an estate trustee was simply seeking a determination and declaration as to whether certain codicils were valid or not valid.

The testators in this case died in 2008.  They had 3 children, Helen, Victor, and Krystyna.  A meeting took place in 2008 between all 3 children and a lawyer to discuss the administration of the Estate.  During this meeting, Krystyna revealed, for the first time, the existence of codicils and declarations of gift that provide her with an interest in certain properties.  Helen refused to acknowledge the validity of these new documents.

In 2015, Helen brings a court application.  Her application was later amended, on the consent of parties, in 2018 to reflect that Helen was only seeking a declaration in respect of the validity of the codicils.  Thus in 2019, Justice Dietrich’s decision was made in the context of Krystyna’s motion for summary judgment to dismiss Helen’s application on the basis that it was statute barred and Helen’s cross-motion for summary judgment on her application.  Justice Dietrich found that, since Helen did not ask the court to determine the ultimate beneficiaries of the properties that were subject to the Codicil or to vest such properties in any particular beneficiary or beneficiaries, her application was not barred by the Limitations Act, 2002.

The Court of Appeal agreed with Justice Dietrich.  The panel was also of the view that this case is distinguishable from Leibel v. Leibel2014 ONSC 4516 and Birtzu v. McCron, 2017 ONSC 1420 because of the consequential relief that was pleaded in those cases.  Since the Court of Appeal decision did not go into the details of the relief sought in Birtzu (unlike its description of Leibel), it is helpful to understand the breadth of the Statement of Claim in Birtzu, which sought the following:

  • an Order setting aside the Will;
  • an Order setting aside the Deceased’s Powers of Attorney;
  • an accounting of the entire Estate, as well as all financial transactions undertaken by the Deceased, or on his behalf, or on behalf of his Estate, from the date that the Deceased’s matrimonial home was sold in 2003 to the date of trial;
  • Orders for the production and release of financial and medical information;
  • an Order reversing all transactions undertaken by the Defendant, either directly or indirectly, without authority or in breach of her authority, or in breach of her fiduciary duties to the Deceased and to his beneficiaries, including the Plaintiffs;
  • an Order tracing the property of the Deceased into the property owned by the Defendant, including her home;
  • Orders for injunctive relief, including the issuance of a certificate of pending litigation;
  • a Declaration that all property held in the name of the Defendant, or part thereof, is held by her for the benefit of the Plaintiffs;
  • damages against the Defendant in the amount of at least $400,000.00, for conversion of property, breach of statutory duty, and/or breach of fiduciary duty;
  • pre- and post- judgment interest; and
  • costs fixed on a substantial indemnity basis, plus H.S.T.

Thanks for reading!

Doreen So

20 Jan

No Consequential Relief; No Limits to Will Challenges

Doreen So Continuing Legal Education, Estate Litigation, Executors and Trustees, Litigation, Uncategorized, Wills Tags: , , , 0 Comments

Last week the Court of Appeal dismissed an appeal of Justice Dietrich’s decision in Piekiut v. Romoli, 2019 ONSC 1190, 2020 ONCA 26.

The main issue on appeal was whether Justice Dietrich was right in finding that the applicant could still ask the court to determine whether certain codicils were valid (or invalid) seven years after death.  Justice Dietrich based her limitations analysis on whether this proceeding would fall under section 16(1)(a) of the Limitations Act, 2002 where there is no limitation period in respect of “a proceeding for a declaration if no consequential relief is sought”.

In her reasons, Justice Dietrich distinguished the case before her from the other limitations cases that have applied the two-year, basic limitation period to will challenges: Leibel v. Leibel2014 ONSC 4516, Birtzu v. McCron, 2017 ONSC 1420, and Shannon v. Hrabovsky, 2018 ONSC 6593.  The case before her was different from Liebel, Birtzu, and Shannon because nothing had been done by the respondent beneficiary to propound the codicils that she had an interest in.  If the proceeding was started differently in 2015, by the very beneficiary who has an interest in the codicils, then the estate trustee would have a limitations defence against the beneficiary.  Since the beneficiary had done nothing, it remained opened to the estate trustee to commence an application for declaratory relief.  Such declaratory relief is  “a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs.’ It is restricted to a pronunciation on the parties’ rights” (see para. 46, 2019 ONSC 1190).

The Court of Appeal agreed that there was no limitation period in this case because the applicant did not seek consequential relief in addition to a determination of the validity or invalidity of the codicils.   The Will had not been probated and nothing had been done for seven years to resolve the issue.

“In these circumstances, Helen was entitled to seek declaratory relief, simply to establish the validity, or lack of validity, of the codicils – to define the rights of the parties in order to avoid future disputes.”, Strathy C.J.O., MacPherson J.A., and Jamal J.A.

Thanks for reading and more on these limitation cases to follow later this week!

Doreen So

 

21 Nov

Hurray for Telomerase!

Doreen So General Interest, Health / Medical, In the News, Uncategorized Tags: , , , , , , 0 Comments

According to this CNN article, a scientific breakthrough has occurred thanks to research from the Arizona State University and Texas A&M University.  These scientists have, for the very first time, identified the structure of telomerase in plants.

Telomerase is an enzyme that creates the DNA of telomeres.

>>Telomeres protects our cells from aging as our cells multiply.

>>>If our cells are protected from aging, then so will our bodies…

This breakthrough will allow scientists to study how telomerase in plants compare to the ones in animals, including humans!  For example, there is a pine tree, named Methuselah, that is 4,845 years old in California.  It is so inimitable that the location of this particular pine tree is kept secret for protection.

On the flip side, certain cells that have too much telomerase can be deleterious to our health, like cancer cells.  The ability to stop a cancer cell from multiplying by shortening its telomeres could be revolutionary!

Fun fact: these components of life are so important that the 2009 Nobel Prize in Physiology or Medicine was awarded to Elizabeth H. Blackburn, Carol W. Greider, and Jack W. Szostak for their research on how chromosomes are protected by telomeres and telomerase.

Thanks for Reading!

Doreen So

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