Author: Hull & Hull LLP

30 Jun

Changes to Consent and Capacity Board Coverage

Hull & Hull LLP Capacity, In the News Tags: , , , , , , , , , 0 Comments

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:

    1. 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
  1. 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.

Noah Weisberg

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29 Jun

Don’t Worry Be Happy

Hull & Hull LLP Capacity, Health / Medical Tags: , , , , , , 0 Comments

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’.

Happy Monday,

Noah Weisberg

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02 Apr

Update Regarding CRA Filing Deadlines and COVID-19

Hull & Hull LLP Uncategorized Tags: , , , , , , , , 0 Comments

Last week, Paul Trudelle blogged about CRA’s announcement regarding filing deadlines in light of the COVID-19 crisis.  Since then, a further announcement has been made. 

As it relates to the administration of an estate:

  • the Estate’s T3 tax return is now due on June 1, 2020 instead of April 14, 2020.  Tax payments owed by a trust remain deferred until September 1, 2020
  • the filing of an individual’s tax return remains uncertain as mentioned in Paul’s blog

Information is changing daily.  If the above applies to you, or an estate that you are responsible for, you should contact a professional accountant and/or monitor the CRA website.

Stay safe and wash your hands,

Noah Weisberg

Please click on this link to see our COVID-19 related resources.

01 Apr

What Legal Resources Are Available During COVID-19?

Hull & Hull LLP Continuing Legal Education, In the News Tags: , , , , , , 0 Comments

There are numerous resources available to estates and trusts lawyers to help them navigate their practice during these COVID-19 times.  As there does not yet seem to be one amalgamated repository, I thought I would use today’s blog to highlight some sites that I tend to be frequenting:

The Law Society of Ontario

The LSO has created an easy to read list of FAQs.  Certain questions that I have found particularly helpful include: the requirements regarding commissioning an affidavit, including affidavits of service; the use of virtual means to identify or verify the identity of a client; whether virtual means can be used to assess a client’s capacity; and, what are the best practices for using video conferencing in providing legal advice or services.

LawPRO

LawPRO is continuing to update avoidaclaim.com.  Given that new claims reports continue to come in at pre-crisis numbers, lawyers must remind themselves that although the physical location of their practice may have changed, the level of service provided must not.

Hull & Hull LLP

If you are reading this blog, you are probably already aware of the comprehensive resources being provided by Hull & Hull LLP, which can be found here.  If not, we are covering everything from estate planning to estate litigation, including the execution of wills and how to have litigious matters heard by presiding judges.

Ontario Bar Association

The OBA has set up a COVID-19 Action Centre.  While helpful information continues to be provided, I find myself continually looking forward to their ‘mindful moments’ which arrive daily in my inbox.

Non-Legal Resources

Some non-legal helpful resources include: a free website to verify the validity of an Ontario Driver’s License; how to use the document scanner on your iPhone/iPad ; and, Zoom tips.

Stay safe and wash your hands,

Noah Weisberg

If you consider this topic interesting, please consider these other related sites:

30 Mar

The Trustee’s Duty to Invest During COVID-19

Hull & Hull LLP Executors and Trustees Tags: , , , , , , , 0 Comments

There is so much in flux right now due to COVID-19.  In the area of estates and trusts though, the obligations that an estate trustee owes to beneficiaries remains stable.  During this time, estate trustees need to consider how best to administer an estate, and what they should be doing to limit future claims against them.  The purpose of today’s blog is to consider the estate trustee’s duty to invest.

According to section 27(1) of the Trustee Act, “In investing trust property, a trustee must exercise the care, skill, diligence and judgment that a prudent investor would exercise in making investments”.  This is often referred to as the prudent investor rule.  Section 27(5) sets out certain criteria the trustee is required to consider in investing trust property, including, amongst other things, the general economic conditions and the possibility of inflation or deflation.

Given the current market fluctuations, estate trustees need to give invested trust property considered attention.  While they cannot be expected to produce resounding returns for the beneficiaries, they can take steps to make sure their investments are prudent in the circumstances and avoid future claims from beneficiaries.  These could include claims that the estate trustee failed to properly invest trust assets or that they failed to exercise their discretion.

The estate trustee should consider doing at least four things.  First, they should review the terms of the will as to whether there are any specific investment requirements.  Second, they should contact their investment advisor to obtain professional advice and share any relevant terms of the will.  Third, the estate trustee should ask the investment advisor to put their advice/comments in writing and the estate trustee should hold on to this.  Fourth, if the trustee is afforded some sort of discretion (for instance, considering the interests of capital versus income beneficiaries), the trustee should prepare a memorandum to themselves.  The memorandum should set out the reasons why they reached the investment decision that they did and the factors they considered, which should include the section 27(5) criteria.

Stay safe and wash your hands,

Noah Weisberg

Please click on this link to see our COVID-19 related resources,  as well as these related blogs:

02 Jan

Feeling Good into 2020

Hull & Hull LLP Estate Planning, General Interest, In the News, Uncategorized, Wills Tags: , , , , , , , , , , 0 Comments

It is the start of a new year and a new decade.  Many of us recently enjoyed some holidays and had much to eat and drink.  Many of us are also feeling the lingering effects of this merriment.  I figured that an uplifting, feel good read would be a nice way to start 2020.  I was thus delighted to learn about Eva Gordon, and her estate.

Ms. Gordon passed away at the age of 105.  She grew up on an orchard in Oregon, never graduated from college, and worked as a trading assistant at an investment firm in Seattle.  In 1964, she married her husband, who was a stockbroker.  They did not have any children together.  Neither Ms. Gordon or her husband came from money, and they lived a modest life.  Ms. Gordon’s godson, who was the Estate Trustee, joked that if Ms. Gordon and her husband went out for lunch or dinner, then they would make sure to bring their Applebee’s coupon.

From the salary that Ms. Gordon received from her employer, she purchased partial shares in numerous stocks, including oil and utility companies, and was an early investor in Nordstrom, Microsoft, and Starbucks.  Unlike many at that time, Ms. Gordon held onto these valuable stocks.  As a result of this shrewd investing, Ms. Gordon’s wealth increased considerably over the latter years of her life.

Instead of wasting away her money, in her Will, Ms. Gordon decided to bequeath $10 million to various community colleges, with about 17 colleges each receiving cheques for $550,000.  Interestingly, no stipulations were put into place as to how the money was to be spent by the colleges.  The colleges could do with the money as they wished.  For many of them, it was one of the largest donations they had ever received.

For an interesting perspective on the impact of donations to modest, as opposed to elite, institutions, you should listen to Malcolm Gladwell’s Revisionist History podcast (episode 6).

Noah Weisberg

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31 Dec

Champagne Poppin’ & Will Plannin’

Hull & Hull LLP Estate Planning, New Years Resolutions Tags: , , , , 0 Comments

It is the end of 2019.  I therefore of course feel the need to use this blog to urge you to resolve to either make a will if you do not already have one, or, if you already have one, to review your current estate plan to see if it requires updating.

Why the urgency you might ask?  The answer lies in the most festive of NYE tipples – champagne!

Apparently, approximately 24 people die annually from being hit by champagne corks.  In fact, it has been alleged that more people die as a result of being hit by a champagne cork, than from poisonous spiders.  This article highlights the death of a Hong Kong billionaire by champagne while celebrating his 50th birthday.  As he opened a celebratory bottle of champagne, the cork hit the businessman in the temple causing a fatal brain hemorrhage.  His death was confirmed on the way to the hospital.

Champagne corks as a cause of death have received much doubt and there have been steps to debunk as a ‘myth’.  For instance, according to this article, the average rate at which a champagne cork exits a bottle is about 24.8 miles per hour.  In extreme circumstances, if there was up to 3 bars of pressure, a cork could reach speeds of 60 miles per hour.  Regardless, these speeds are not enough to cause a cork to be deadly.

 

So, while death by a champagne cork may not be a valid reason to urge you to consider your estate plan, there are many other good reasons as discussed in these related Hull & Hull blogs:

HAPPY NEW YEAR!

Noah Weisberg

30 Dec

The First Last Will

Hull & Hull LLP General Interest, Wills Tags: , , , , , , 0 Comments

With the new year approaching, it is customary to turn one’s attention to the year ahead in the making of resolutions.  In today’s blog though, instead of looking forward, I thought that I would look back – waaaaaayyyyy back – to the oldest Last Will and Testament.

The oldest last will and testament was discovered in 1890 by William Petrie, an English Egyptologist.  While exploring the pyramids in Kahun, Egypt, Petrie came across a parchment/papyrus from 1797 BC that was determined to be the last will of Ankr-ren.  The will was written in hieroglyphics.

Ankr-ren’s will left all of his property to his brother, Uah (who was stated to be a priest).

Uah’s last will was also discovered.  Uah’s will gifts the property he receives from Ankr-ren to his wife, Teta, forbids his wife from demolishing any house received by Ankr-ren, and names a guardian for his child.  The last will also had two witnesses.

Remarkably, or perhaps not, the terms of these ancient wills bear so many resemblances to modern day wills requirements found in Ontario’s Succession Law Reform Act.  For instance, they include the ability to freely gift property, to appoint a custodian/guardian for a minor child, and include two witnesses.

Noah Weisberg

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29 Nov

When Administering an Estate, Don’t Let Things Drag

Hull & Hull LLP Beneficiary Designations, Estate & Trust, Estate Litigation, Estate Planning, Support After Death, Trustees, Uncategorized, Wills 0 Comments

My father used to have a saying: “Whatever drags gets dirty.” He would trot it out whenever one of us waited too long to do something and as a result, doing that thing became messy, complicated or impossible. For example: I was supposed to mail a letter. I didn’t mail the letter. Now I can’t find the letter. “Whatever drags gets dirty!”. Thanks, Dad.

Growing up, I thought that this was a widespread adage. Apparently, it isn’t. I searched it up on the internet and most of the results referred to Rupaul’s “Drag Race”.

The adage may fittingly sum up the lesson contained in the decision of the Nova Scotia Court of Probate in Kelly Estate, 2019 NSPB 1 (CanLII).

There, the deceased’s daughter and estate trustee, Carrie, brought an application for the possession of an urn containing the cremated remains of the deceased. The deceased died 13½ years before the application. Probate was granted 8 years before the application.

In the deceased’s will, cremation was requested, and Carrie was expressly given “the powers to decide what will happen with the said ashes.” This was consistent with the court’s observation that “Disposition of the deceased is one of the most fundamental tasks an executor/rix can undertake on behalf of the deceased.”

However, after the deceased’s death, the ashes were taken by Carrie’s sister, Cheryl. They remained at Cheryl’s home, apparently with the acquiescence of Carrie. The court noted that there was no evidence to suggest that there were prior attempts by Carrie to regain custody and control of the ashes over the 13½ years since death.

The court cited the BC decision of Re Popp Estate, 2001 BCSC 183 (CanLII) where the deceased’s husband, as estate trustee, was said to be entitled to control the disposition of the deceased’s remains, provided he did not act capriciously. As the husband was acting capriciously, he lost the right to deal with his spouse’s remains.

The court went on to find that by allowing the urn to remain in Cheryl’s possession for 13½ years, Carrie as estate trustee had in fact determined the disposition and final resting place of the urn: with Cheryl. A change of Carrie’s decision this late in the game “seems capricious at best or malicious at worst”, and the court was not prepared to order a transfer of the urn from Cheryl to Carrie.

When administering an estate, as in life in general, don’t let things drag.

Thanks for reading.

Paul Trudelle

01 Nov

Small Claims Court Monetary Jurisdiction Increasing

Hull & Hull LLP Estate & Trust, Estate Litigation, Estate Planning, Uncategorized Tags: , , 0 Comments

The monetary jurisdiction of Ontario’s Small Claims Court is set to increase on January 1, 2020. The jurisdiction of the Court will increase from $25,000 to $35,000.

The current limit of $25,000 was in place since 2010. Prior to that, the limit was $10,000.

In a press release from the Ministry of the Attorney General, the change is said to “make it faster, easier and more affordable for people and businesses to resolve their disputes in front of a judge.”

Claims over $35,000 would need to be brought in the Superior Court of Justice. As noted by the Ministry of the Attorney General, claims in the Superior Court of Justice can take years to resolve, and can involve expensive legal representation. Claims in the Small Claims court, however, can be resolved in less than a year, and litigants are not required to hire lawyers or other legal help.

The Ministry also stated that the change should have the effect of reducing wait times in the Superior Court of Justice, as many claims that would otherwise have been brought in the Superior Court of Justice could now be brought in the Small Claims Court.

Another change is that the minimum amount of a claim that may be appealed to the Divisional Court is increased from $2,500 to $3,500.

As to transition, litigants who started a claim in the Superior Court of Justice for an amount between $25,000 and $35,000 can move to have their claim transferred to the Small Claims Court.

There are costs consequences if a proceeding is brought in the wrong court. Under Rule 57.05 of the Rules of Civil Procedure, if a plaintiff recovers an amount within the jurisdiction of the Small Claims Court, the court may order that the Plaintiff shall not recover any costs. If a Plaintiff recovers default judgment that is within the monetary jurisdiction of the Small Claims Court, costs shall be assessed in accordance with the Small Claims Court’s tariff.

Costs in the Small Claims Court are limited under its rules, and are subject to a limit under the Courts of Justice Act, s. 29, to 15% of the amount of claimed or the property sought to be recovered, subject to the court’s right to award higher costs to penalize a party or the party’s representative for unreasonable behavior.

Thanks for reading.

Paul Trudelle

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