Author: Hull & Hull LLP
2020….what a year – I’ll say nothing more other than I herewith present the most popular estate and trust cases of 2020 as decided solely and arbitrarily by me:
Calmusky v Calmusky – here, the Superior Court of Justice ruled that the designated beneficiary was presumed to be holding a RIF in trust for the estate of the deceased and had the onus of rebutting the presumption. Essentially, the court applied the rule in Pecore to a RIF by stating that “…I see no principled basis for applying the presumption of resulting trust to the gratuitous transfer of bank accounts into joint names but not applying the same presumption to the RIF beneficiary designation”.
Sherman Estate – should probate applications be sealed? At the Superior Court of Justice, the sealing order over the Sherman probate applications was granted ex parte. This was based upon the perceived risks to the executors and beneficiaries as well as the need to protect the privacy and dignity of the victims of violent crimes and their loved ones. The Court of Appeal, however, held that a public interest component must be met and proceeded to set aside the sealing orders. The matter reached the Supreme Court of Canada on October 6, with a decision yet to be released.
Trezzi v Trezzi – what happens when a will gifts an asset that is actually owned by a corporation? The Court of Appeal had to determine the potential validity of a bequest of property in a will when the property was not directly owned by a testator, but rather owned by the testator through a wholly owned private corporation. Although the court upheld the bequest in question, they noted that the language used in the will was potentially problematic and encouraged counsel to be more careful when drafting in similar circumstances.
Lima v Ventura – notwithstanding COVID, procedural timelines set out in court orders must be respected. Here, a party brought a motion to extend the deadline to exercise an option to purchase a home, citing the circumstances of the COVID-19 pandemic as the basis for the request. The request for an extension was ultimately denied because the party failed to provide evidence to support the claim that the circumstances caused by COVID frustrated efforts to purchase the house. The court did set out a number of factors to consider related to delays due to COVID-19 that could justify varying a court-imposed timeline.
Happy New Year!
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‘tis the holiday season – a time to drink egg nog (my favourite) and give and receive gifts. What better time than to highlight a recent gift given by the Superior Court of Justice to all those barristers out there! The gift, as you may be wondering, comes in the way of advice and assistance given to counsel by F.L. Myers J. in his Triage Endorsement in Paul v Veta.
Without going into the facts of the case, the applicant sought to bring an unopposed application for an order deleting a mortgage from title. Having difficulty in getting the application heard, counsel advised the court that, “I have exhausted all of my efforts but have not been able to file this online. I am humbly asking for some direction on how to have my materials filed in the most expedient fashion so I can get this order approved”. Justice Myers acknowledged that although it is not generally the role of the court to give advice to counsel, he nonetheless provided some assistance.
Taking into consideration the numerous Notices to the Profession resulting from the pandemic, Justice Myers had the following to say about the issuance of an application:
- register for a One-key account
- under Rule 4.05.2(6), submit the civil document to the portal, using your One-key account, wait 5 days to get an email, to tell you if your document was accepted
- once the application is issued, Rules 38.06 and 39.01 require that the notice of application and all affidavits to be relied upon be served on all parties
As it relates to motions in writing, Justice Myers states, “Judges receive numerous motions in writing (or “basket motions” as they are commonly called). It does not take very long to read a properly prepared basket motion. It is far more difficult and time consuming for a judge to deal with a poorly prepared basket motion. Struggling to find proof of service, or proof that it truly is on consent of all parties, or proof of the facts required for the relief sought, takes time and effort. So, the tacit deal is that if counsel provide us with motions in writing that contain the necessary proof of facts and law, we are all too glad to sign them. It’s quicker, easier, and a happier outcome for all concerned. I know of no judge waiting around to incur the extra time, effort, and frustration to reject well-prepared basket motions”.
There are other great nuggets of wisdom contained in the Endorsement including the permissibility of hearsay evidence and the filing of draft orders.
I hope you like your gift – I am sure the court won’t mind if you decide to re-gift it 🙂
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As readers of my blogs likely know by now, I love learning about restitution. I was thus quite intrigued to read this recent CNN article regarding a claim by the Prince of Prussia.
Georg Friedrich (also known by his legal surname, the Prince of Prussia) (and also apparently 202nd in line to the British throne), has quite the lineage. His ancestors include Brandenburg electors from 1415, Prussian kings from 1701, German emperors, and importantly, Germany’s last Kaiser, Wilhelm II (also known as Crown Prince Wilhelm).
The Prince has inherited the awe-inspiring Hohenzollern Castle (please take a look at it) located in southern Germany. But that is not all. Based on a promise made to his grandfather, the Prince has continued to pursue a dispute against the German authorities to reclaim part of his family’s fortune that was confiscated after the fall of the Nazis. Apparently, in addition to the promise, the grandfather’s will states that he explicitly expects the Prince to follow his footsteps in pursuing this claim.
Since German law disqualifies those who ‘substantially supported’ the Nazis from any form of restitution or compensation for lost property, the key to the Prince’s argument will be to prove that his ancestors did not help the Nazis. In addition to other forms of evidence, both the German government and the Prince have commissioned historians to examine Crown Prince Wilhelm’s relationship with the Nazi party. This includes reviewing historical photos and statements made by the Crown Prince.
What makes the legal issue even more fascinating is that while the law excludes corporations, such as Volkswagen and BMW from making these claims, it is unclear if former royals are excluded as well. Nevertheless, it appears that some royals have secured restitution – Michael, Prince of Saxe-Weimar-Eisenach, dropped his 2003 restitution claim for artworks, manuscripts and the inventory of the Wartburg Castle near Eisenach, in return for €15.5 million.
Those interested in restitution, as well as old-world monarchy, castles, and beautiful works of art, should follow this story.
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I tend to field a fair amount of questions regarding estate planning. Nowadays, as many of my friends have diversified portfolios that include novel investments such as cryptocurrency, I see more and more estate planning questions regarding such investments. While my friends who are reading this are still free to ask me directly, I thought I would use today’s blog to save them the trouble (and please note that this blog is not to be considered as legal advice).
Here are some cryptocurrency estate planning considerations as discussed in this Forbes article:
Security – one of the benefits of cryptocurrency is that it is considered highly secure since access is usually by way of private key, password, or seed phrase. Although this information must be shared with the estate trustee so that they can access the currency post death, it cannot be provided in a way which publicizes the information. The risk is that anyone who comes across this information can use the currency. Testators have to be careful to ensure that the information is shared confidentially and securely.
Value – cryptocurrency can fluctuate widely in value, even in the course of one day just like precious metals and other commodities. As such, the testator has to ensure that the estate trustee is ready to move following death. Any delays in acting by the estate trustee can put the value in jeopardy, and expose the estate trustee to claims by beneficiaries.
Estate Trustee Powers – it is unclear if cryptocurrency falls afoul of the prudent investor rule. If the testator knows that the estate trustee will be administering cryptocurrency, there should be specific provisions in the last will ensuring there is authority to do so.
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As the readers of our blogs are well aware, the new COVID-19 ‘normal’ has extended into the practice of estates and trusts. While solicitors have had to adapt to the way wills are prepared, litigators (barristers) have also had to adapt. Procedures that were ordinarily done in person, such as mediation, examinations, and trials, are now being done virtually.
Amongst my peers, the decision by Justice Myers in Arconti v. Smith has been pointed to as the authority that despite COVID-19, the show must go on. Please see my firm’s blog for an excellent summary of Justice Myer’s decision. Those on the other side of the fence, wishing to delay the show, have pointed to Justice Morgan’s case conference endorsement who found that:
“I am anxious not to delay litigation any more than needed given the present court suspension and general societal lockdown. At the same time, I would not want to hold a hearing that in its very format raises due process questions for whichever party ends up being unsuccessful. I admire Defendant’s counsels’ enthusiasm, and would be willing to conduct the hearing via videoconference if both sides were willing to do so. However, I do not think it appropriate to compel the moving party to proceed under conditions where Plaintiffs’ counsel perceive that they may not be able to present the case as effectively as they would in person.”
However, since this endorsement, Justice Morgan has issued a continued case conference, whereby, following Arconti, the show will go on – the matter will now proceed virtually. Morgan J. found that:
“I have full confidence that counsel in this case, who, while arguing adversarial positions, appear to have developed a very professional and civil working relationship, will be able to rise to the challenge of conducting a complex hearing by videoconference. They have already indicated to me a willingness to work together to provide the court with a convenient method for filing and accessing the voluminous materials through cloud-based storage.”
So, are virtual hearings the new normal? It sure seems so. Decisions finding the contrary continue to be revisited and reversed. The show must go on.
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As my colleague Paul Trudelle wrote in July, “Under the Reopening Ontario (A Flexible Response to COVID-19) Act (“the Reopening Ontario Act”), Orders made under the Emergency Management and Civil Protection Act that have not been previously revoked are extended and continued under the Reopening Ontario Act.”
At that point, several orders, including virtual will signings, were extended for a period of thirty days.
As my colleague Arielle Di Iulio discussed here, the remote execution of wills and powers of attorney using video conferencing and counterpart were extended to September 22.
This past week, the Ontario Government released another list of extensions including the virtual signing of Wills under O. Reg 129/20
The full list of orders subject to this extension can be found here.
These orders are extended until October 22, 2020 or until such time as they are extended once more.
Thanks for reading!
Ian M. Hull and Daniel Enright
Over the past few weeks, the #FreeBritney movement has been gaining traction on social media. My colleague, Doreen So, previously blogged on the movement, and discussed some of the similarities between conservatorship (in California) and guardianship in Ontario.
Recent headlines confirm that #FreeBritney is no longer merely a social media movement spearheaded by fans, but Britney herself no longer wishes for her father, Jamie Spears, to continue as her sole conservator.
According to a New York Times’ article, Britney’s father stepped down as her conservator last year, citing health problems, with a temporary conservator appointed in his place. Britney has now filed seeking to have her lawyer and a bank or financial institution permanently replace her father as conservator. Britney’s current conservatorship has been extended to at least February 2021, after which a hearing will be scheduled.
With #FreeBritney trending and ongoing media coverage, the ACLU has spoken up on the matter, recently tweeting that “People with disabilities have a right to lead self-directed lives and retain their civil rights, if Britney Spears wants to regain her civil liberties and get out of her conservatorship, we are here to help her.” The ACLU also released an article breaking down what conservatorship is, and its potential threats to civil liberties. As explained by the ACLU, Britney is subject to a court-imposed conservatorship, which means the court has determined she is unable to provide properly for her food, clothing or shelter. The court has granted the legal right to make such decisions, including financial decisions on Britney’s behalf, to her conservators.
In Ontario, the guardianship regime is governed by the Substitute Decisions Act, which sets out that a guardian of property can be either court appointed, or appointed by statute. Section 15 of the SDA sets out that if a certificate is issued under the Mental Health Act, certifying that a person who is a patient of a psychiatric facility is incapable of managing property, the Public Guardian and Trustee is the person’s statutory guardian of property. Section 16 further sets out that a person may request an assessor to perform an assessment of another person’s capacity (or of their own) to determine whether or not the PGT should become the statutory guardian of property.
Sections 22-30 of the SDA sets out the framework wherein a person or corporate guardian can apply to the court to be appointed as guardian of property. For more information on when a court will appoint a guardian, please see here.
From the current news cycle, it appears that Britney is not seeking to terminate her conservatorship, but amend it. In Ontario, a motion under section 26 of the SDA can be brought seeking to vary a guardianship order, including the substitution of another person as guardian. If one is seeking to terminate the guardianship order, a motion may be brought under section 28. If the court agrees, and the guardianship is terminated, the individual on whose behalf the guardian was appointed, would regain control over their financial affairs and decision making.
Thanks for reading!
With so much taking place around us now, I forced myself to choose a topic for today’s blog that, although still estates related (this being, after all, an estates blog), allows me to think about something beautiful. I landed on art.
Full disclosure: I have blogged about art and estates before. See here and here for some shameless self-promotion. Without wanting to revisit these topics, I did some searching and was intrigued by this Financial Times article about the Art Loss Register (ALR).
The ALR is the world’s largest private database for lost and stolen art, antiques, and collectibles. Their services are essentially twofold. First, the ALR assists to deter the theft of art by promoting the registration of all items of valuable possession on its database and also the expansion of checking searches. Second, by operating a due diligence service to sellers of art, the ALR operates a recovery service to return works of art to their rightful owners. In addition, the ALR has expanded to negotiate compensation to the victims of art theft and the legitimising of current ownership.
In addition to art dealers, insurers, and museums, the ALR also assists private individuals including beneficiaries and trustees. A trustee who is intending to liquidate art may wish to rely on the ALR to prove title and authenticity, thereby potentially increasing value and mitigating risk of fraud.
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Legal Aid Ontario has published a notice setting out changes to coverage for Consent and Capacity Board appeals.
Effective June 23, 2020, Legal Aid Ontario is making the following changes to its certificate coverage:
- an additional 10 hours will be offered to the current 25 hours allocated on the CCB appeal tariff. This increases total coverage to 35 hours
- a new 10-hour certificate for motions for emergency/urgent CCB treatment orders held in the Superior Court is being introduced
The full notice can be found here.
If you have applied for CCB appeal coverage from March 13 onward, Legal Aid Ontario will be contacting you regarding the notice. If you have not heard from Legal Aid Ontario, you should contact them directly.
Any attempt to increase access to justice, is always welcome.
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Yes, you’re reading this blog on a Monday. As week days go, Monday isn’t nearly as fun as a Thursday, or Friday. But that doesn’t mean you should be unhappy. A recent study purports that repetitive negative thinking is linked to cognitive decline.
The authors of the study propose that repetitive negative thinking may be a new risk factor for dementia. Based on various tests, the study found that when compared to non-pessimists, people who think negatively have a greater buildup of certain proteins in the brain that cause Alzheimer’s disease (the most common type of dementia), a worse memory, and greater cognitive decline.
Based on this correlation, it is believed important to think happy thoughts. Whether you are a glass half empty or half full kind of person, the brain can be trained to be more optimistic. This can be done in a number of ways, including:
- meditating – one study found that only 30 minutes a day over a two week period produced a measurable change in the brain
- practicing gratefulness – taking a few minutes each day to write down what you are thankful for
- reframing negative thoughts –changing your perspective on a situation to give more of a positive or beneficial meaning to you
As Bobby McFerrin sings, ‘In every life we have some trouble / But when you worry you make it double / Don’t worry, be happy / Don’t worry, be happy now’.
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