Author: Nick Esterbauer

30 Jan

What Impact Might MAID Have on a Will Challenge?

Nick Esterbauer Capacity, Estate Litigation, Health / Medical, Wills Tags: , , , , , , , , , , 0 Comments

In preparing my other blogs this week, I spent some time considering the issue of how we might see the increased access to medical assistance in dying (MAID) impact our practice area.  As such, I thought that I would finish off this series of blogs focusing on MAID with a hypothetical question I have not yet encountered in practice, but which is inevitably going to be raised: what impact, if any, does MAID have on a will challenge?

Our regular readers will already be well aware that capacity is task, time, and situation specific.

Presumably, the standard of capacity applying to the decision to access MAID is that required to make other personal care decisions, such as receiving or refusing medical treatment.  Section 45 of the Substitute Decisions Act, 1992, defines incapacity for personal care as follows:

A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

I have been unable to find any literature suggesting whether the standard may be somewhat heightened as a result of the significant impact of the decision to actually receive MAID.

The standard for testamentary capacity typically applied remains that set out in the old English authority of Banks v Goodfellow.  While some have suggested that the standard of testamentary capacity be updated, we are generally concerned with the same, well-established criteria:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

While, historically, standards of mental capacity were viewed as hierarchical, recent case law and commentary have strayed from this understanding, instead viewing the different standards of mental capacity as just that: different.  Courts will consider whether an individual understood the nature of the decision being made and appreciated the reasonably foreseeable consequences of their decision.

Consent to MAID must be confirmed very shortly before it is administered, which restriction has been of considerable controversy.  While possessing the capacity to confirm consent to obtain MAID may not correspond to testamentary capacity, it may nevertheless become evidence suggestive of a degree of mental capacity that is valuable (in conjunction with other evidence) in establishing that a last will and testament executed shortly before death is valid.

Whether the fact that MAID has been achieved will be important evidence on a will challenge in support of testamentary capacity or not remains to be seen, but it will be interesting to see how the laws relating to MAID evolve and how incidents of MAID may impact estate law over time.

Thank you for reading,

Nick Esterbauer

28 Jan

MAID: Upcoming Developments

Nick Esterbauer Elder Law, Ethical Issues, Health / Medical, In the News, Public Policy Tags: , , , , , , , 0 Comments

In many respects the law of Quebec differs from that of other provinces.  In terms of medical assistance in dying (MAID), however, a September 2019 decision of the Quebec Superior Court of Justice has the potential to spark change in legislation throughout the country.

In Truchon c Procureur général du Canada, 2019 QCCS 3792, the Court considered the constitutional validity of the requirement that the natural death of individuals accessing MAID be reasonably foreseeable.  The applicants had been declared ineligible for MAID on the basis that their deaths were not considered to be reasonably foreseeable.  The first applicant suffered from cerebral palsy and his condition had deteriorated significantly in 2012, when he became totally paralyzed, preventing him engaging in activities that he had previously enjoyed.  The second applicant suffered from paralysis and severe scoliosis, with a significant change in her health in 1992 when she was diagnosed with degenerative muscular post-polio syndrome.  Both applicants lived in constant pain with a poor prognosis of continued suffering and deterioration, but had been denied access to MAID on the basis that their natural deaths were not reasonably foreseeable and decided to seek the Court’s assistance.

The Court first reviewed the issue of whether the reasonably foreseeable natural death requirement violated the rights to life, liberty, and security of the person under Section 7 of the Canadian Charter of Rights and Freedoms.  While the restriction was noted to have the potential effect of prolonging the lives of some individuals who would otherwise request MAID, it was also considered to have the risk of encouraging some patients “to end things prematurely, and often in a degrading or violent manner, before being in mortal agony, or having completely lost their dignity or being in the final stage of life.”  Due to the exposure of some Canadians seeking MAID to (1) a higher risk of death and (2) physical and psychological pain, “depriv[ing] them of the opportunity to make a fundamental decision that respects their personal dignity and integrity”, the reasonably foreseeable death requirement was ruled to infringe the right to life, liberty, and security under Section 7 of the Charter.

Next, the Court considered whether the reasonably foreseeable natural death requirement violated the right to equality under Section 15 of the Charter.  The Court found the applicants were prevented from accessing MAID on the basis of the nature of their disabilities, which notwithstanding being “serious and incurable” did not render death reasonably foreseeable, and that as a result the first applicant in particular was “deprived of the exercise of these choices essential to his dignity as a human being due to his personal characteristics that the challenged provision does not consider. He can neither commit suicide by a method of his own choosing nor legally request this assistance.”

The infringement of the applicants’ fundamental rights under Sections 7 and 15 of the Charter was not considered to be justified by Section 1 and the Court, accordingly, declared these provisions of Quebec and Canadian MAID laws unconstitutional.  The declaration of constitutional invalidity of the reasonably foreseeable natural death requirement for accessing MAID was suspended for six months to provide an opportunity to address amendments to provincial and federal legislation.

Quebec has recently announced that it now intends to eliminate the parts of its MAID legislation that have been declared unconstitutional.  Prime Minister Trudeau has advised that the government will be updating federal legislation to reflect the Truchon decision prior to March 11, 2020, when the judgment will take effect.  Precisely how Canada and Ontario will amend the relevant provisions of MAID legislation has yet to be determined.

As yesterday’s blog mentioned, there has been recent scrutiny regarding the restrictive approach in respect of access to MAID and this decision out of Quebec and corresponding updates to the law may represent an important first step in the right direction in enhancing accessibility.

Thank you for reading,

Nick Esterbauer

27 Jan

Recent Developments in MAID

Nick Esterbauer Capacity, Elder Law, Ethical Issues, Health / Medical, In the News Tags: , , , , , , 0 Comments

Our blog has previously covered the developments in medical assistance in dying (MAID) since the prohibition against MAID ended in Canada in 2016.

Almost 230 thousand Canadians responded to a recent government survey on MAID, making it the largest public consultation in Canadian history.  Although the complete survey results have yet to be released, respondents are reported to have shown great support for making it easier for Canadians to access MAID.

As MAID has gained recognition throughout the country, many have fought for increased accessibility and the expansion of eligibility criteria.  Specifically, some believe that the criteria are too restrictive in excluding (1) individuals whose deaths are not imminent, and (2) those who cannot consent to receive MAID at the time at which it is administered.  Because recipients of MAID are required to provide consent personally immediately prior to its administration (rather than in advance), health problems that may also impact mental capacity can render some of them ineligible.

In some parts of the country, MAID is already accessed at significant levels.  In Vancouver Island, with the greatest access in Canada to MAID per capita, MAID accounted for over six percent of all deaths in 2019.

Given the clear engagement of Canadians regarding the issue of enhancing access to MAID, it will be interesting to see how legislation regarding MAID may be updated over time to address the potential introduction of advanced consent and/or the authority of substitute decision-makers to confirm consent.

Thank you for reading,

Nick Esterbauer

 

Other blog posts that may be of interest:

28 Nov

A Step Toward Equal Inheritance Rights

Nick Esterbauer Estate & Trust, In the News, Public Policy, Wills Tags: , , , , 0 Comments

A recent decision by an Egyptian court saw the reversal of the trend in following Islamic Sharia inheritance law under which female beneficiaries are entitled to half the interest of their male counterparts.

The claimant, a human rights lawyer, applied to obtain the same rights as her brothers on the death of her father.  Her case was previously dismissed by two courts.

In Egypt, Sharia principles are typically applied unless the parties agree that Christian inheritance laws, which do not favour male beneficiaries over females, instead be followed.  In this case, the claimant and her brothers agreed that the administration of their father’s estate would not be subject to Sharia inheritance rules.

Last year, a proposed law in Tunisia designed to promote equality in respect of inheritances sparked discussion regarding unequal inheritances in a number of jurisdictions including Egypt.  A 2017 survey suggests that over half of Tunisia’s population remains opposed to equal inheritance rights.

It is anticipated that this decision may result in significant change in jurisdictions where Sharia law has historically been applied in respect of personal property, regardless of religion.

Canadian courts have also considered the issue of cultures that may support an estate plan favouring sons over daughters simply on the basis of their gender.  In Grewal v Litt, 2019 BCSC 1154, the daughters of the deceased challenged the Wills left by their parents, who both died in 2016, on the basis that they discriminated against them in favour of their brothers on the basis of their sex.  The four daughters applied under Section 60 of the Wills, Estates and Succession Act, SBC 2009, c 13 (the “WESA“), for the variation of the Wills that directed the payment of $150,000 to each daughter, while the residue of the estates valued at greater than $9 million was left to the two sons.

Justice Adair noted that there was no dispute that the parents owed a moral obligation to their daughters under BC law, and, as the Wills made inadequate provision for them, they should be varied under the WESA.  The Court attempted to resolve the matter by balancing the adequate, just, and equitable provision for the daughters with their parents’ testamentary autonomy and varied the division of estate assets from approximately 93% in favour of the sons with only a combined 7% for the daughters, to the more equitable division of 15% of the value of the estates for each daughter and 20% for each son.  Notwithstanding the granting of the variation of the Wills, the Court stopped short of finding that the parents’ testamentary intentions were motivated solely by unacceptable discrimination against the daughters.

While many provinces do not recognize a parental obligation to benefit a non-dependant adult child after death, coming years may nevertheless see an increase in the number of challenges to a will on the basis that its terms are discriminatory.

Thank you for reading.

Nick Esterbauer

 

Other blog posts that may be of interest:

26 Nov

Upcoming Changes to Canada’s Divorce Act

Nick Esterbauer In the News Tags: , , , , , , , 0 Comments

Recent amendments to Canada’s Divorce Act will come into effect on July 1, 2020.  While many of these changes may not be directly relevant to estate law, estate practitioners may nevertheless wish to familiarize themselves with these developments before July.

The amendments introduced under Bill C-78 serve a number of objectives, including the advancement of the best interests of the child and increased access to justice.  They can be briefly summarized as follows:

  • New criteria, independent of the Children’s Law Reform Act, in respect of the best interests of the child, taking into account the child’s views and preferences;
  • Updates to terminology designed to enhance access to justice and focus on the responsibilities of parents owed to their children: for example, custody orders will soon be referred to as “parenting orders”, and access will instead be known as “contact”;
  • The removal of presumptions as to equal parenting time and maximum contact being in the best interests of the child.

The new Divorce Act also imposes a duty upon counsel to encourage family dispute resolution unless clearly inappropriate in the circumstances, in a manner consistent with Rule 3.2-4 of the Law Society of Ontario’s Rules of Professional Conduct.  Some provinces are expected as a result to introduce legislation providing judges with the discretion to direct parties to family mediation and/or parenting coordination (as has already happened in British Columbia).

Bill C-78 has also resulted in updates to the Family Orders and Agreements Enforcement Assistance Act.  This act, which already facilitates access to information held by financial institutions with respect to the assets of debtors, will soon permit access to income information from Canada Revenue Agency for the purposes of recalculating support.  The enhanced act is expected to reduce costs to parties and to courts of obtaining necessary disclosure.

Thank you for reading.

Nick Esterbauer

 

Other blog entries that may be of interest:

25 Nov

A resource when addressing international issues

Nick Esterbauer Elder Law, Estate & Trust, Estate Litigation, Estate Planning, Executors and Trustees, General Interest Tags: , , , , , , 0 Comments

Earlier this year, Ian M. Hull, Suzana Popovic-Montag, and I were pleased to co-author the Canada Chapter of the 2019 Chambers & Partners Global Private Wealth Guide for the third consecutive year.

The guide provides an overview of the law as it relates to a number of issues relevant to financial planning and estate planning in jurisdictions throughout the world.  Specifically, the following topics are covered (among others):

  • tax regimes;
  • succession laws;
  • laws relating to the transfer of digital assets and other assets;
  • family business planning;
  • wealth disputes;
  • elder law; and
  • obligations of fiduciaries.

With chapters summarizing the state of the law and related trends in 34 countries, including the United Kingdom, United States, Switzerland, France, and Israel, the guide can be a great resource to be used as a starting point when assisting clients who have assets (or are beneficiaries of assets) in other jurisdictions.

A complete electronic copy of the 2019 Chambers & Partners Global Private Wealth Guide is available here: https://practiceguides.chambers.com/practice-guides/private-wealth-2019.  The online version includes a “compare locations” feature, which allows readers to quickly review differences between two or more jurisdictions.

Thank you for reading.

Nick Esterbauer

29 Aug

How can we slow down aging?

Nick Esterbauer Elder Law, Health / Medical, In the News Tags: , , , , , , 0 Comments

There are constantly new studies suggesting different ways to slow both physical and mental aging.  This month alone, the news has featured research suggesting the following:

  • Aging with pets in place can increase life satisfaction overall, and research suggests that pets may be associated not only with less loneliness, stronger social support systems, and increased participation in the community, but also better cardiovascular health, lower cholesterol, and lower blood pressure.
  • A study from the University of Leeds suggests that tickling may slow down aging.  The study involved the use of electrodes on the participants’ ears to simulate a tickle-like tingling sensation.  Two weeks of 15-minute daily tickling therapy were believed to improve the balance of the autonomic nervous system.
  • People who are optimistic may live longer.  For groups of both women and men, those who were optimistic long-term had a better chance of living to age 85 (and beyond).  Optimism has been linked with goal-setting and healthier habits and, accordingly, fewer optimistic people are believe to die prematurely from stroke, heart disease, or cancer.
  • Consistent with previous research, a new study by the University of Iowa has linked exercise to a healthy aging brain.  Even a single bout of exercise was considered to improve cognitive function and working memory in older participants.

While there may be nothing to prevent aging altogether and/or to totally eliminate the risk of suffering from Alzheimer’s disease or other age-related cognitive decline (absent any major scientific breakthrough), in general, taking health and wellness more seriously from an earlier age may improve quality of life and independence down the road.

Thank you for reading.

Nick Esterbauer

 

Other blog posts that may be of interest:

27 Aug

Are Oral and/or Videotaped Wills Valid?

Nick Esterbauer Estate Planning, In the News, Wills Tags: , , , , , , 0 Comments

A recent news article refers to the struggle of father of accused killer Bryer Schmegelsky to obtain video footage from the Royal Canadian Mounted Police.

The father’s lawyer has referred to the video as the accused’s “last will and testament.”  It was apparently recorded very shortly before death and expresses funeral and burial preferences.

Oral wills (also known as nuncupative wills) are recognized in select jurisdictions, including some American states:

  • New York law provides that an oral will, heard by at least two witnesses and made by a member of the active military or a mariner while at sea can be valid and will expire one year after discharge from the armed forces or three years after a sailor, if the testator survives the situation of peril;
  • In North Carolina, an oral will made while the testator’s death is imminent and in circumstances where the testator does not survive in the presence of two or more witnesses may be valid;
  • In Texas, oral wills made in the presence of three or more witnesses on the testator’s deathbed before September 2007 are valid in respect of personal property of limited value.

As most state legislation is silent on the issue of videotaped wills, if the testator’s oral wishes are videotaped, they must generally meet the criteria for a valid oral will to be effective.

However, in Canada, a will must be in writing, signed by the testator, and witnessed by two people.  Alternatively, a will that is entirely in the testator’s handwriting and unwitnessed may be valid.  Because Ontario is a strict compliance jurisdiction, any inconsistency with the formal requirements, as set out in the Succession Law Reform Act, renders a will invalid.

While a videotaped statement intended to be viewed posthumously may not be a valid will in Ontario and other Canadian provinces, it can nevertheless be used to express the deceased’s final wishes, for example with respect to the disposition of his or her remains (which are typically precatory rather than enforceable, even if appearing within a written document), and may assist a family in finding closure following an unexpected loss.

Thank you for reading.

Nick Esterbauer

26 Aug

Judicial discretion to order passings of accounts

Nick Esterbauer Capacity, Estate & Trust, Passing of Accounts Tags: , , , , , , , , , , , , , 0 Comments

We often encounter situations where the administration of an estate is complicated by the fact that the deceased was married multiple times, and there is a clash between children from a prior relationship and a subsequent spouse (and/or his or her children).  Sometimes, a couple will be closer with one set of children, which may lead to disputes following both of their deaths.  Estate of Ronald Alfred Craymer v Hayward et al, 2019 ONSC 4600, was one such case, in which Joan and Ronald had been closer for much of their 32-year marriage with Joan’s children from a prior marriage.  After Joan and Ronald died in 2016 and 2017, respectively, a dispute arose between their adult children.

While Ronald’s will named his own children as beneficiaries of his estate, his Continuing Power of Attorney or Property (like Joan’s), named Joan’s daughter as alternate attorney for property, should his spouse be unable to act.   Joan had acted as Ronald’s attorney for property from 2006, during which he had suffered a stroke, until her death.  In 2011, Joan had transferred the couple’s matrimonial home, previously held jointly, to herself alone.  During this period, however, there had been no request by Ronald’s children for an accounting.  Joan’s daughter had subsequently acted as Ronald’s attorney for property and as estate trustee for Joan’s estate over the period of approximately eight months between the deaths of Joan and Ronald.

Ronald’s children sought a passing of accounts with respect to the management of their father’s property by Jane and her daughter and, specifically, challenged the change in title to the matrimonial home.  The Court referred to Wall v Shaw, 2018 ONCA 929, in stating that there is no limitation period to compel an accounting.  Accordingly, it considered the only bar to this relief to be laches and acquiescence.  Justice C.F. de Sa commented that the there was nothing improper in the manner in which the plaintiff had sought the accounting and, furthermore, that the delay was not unreasonable in the circumstances.  The Court permitted the claim regarding the matrimonial home to continue, but nevertheless declined to order a passing of  accounts:

…[O]rdering the passing of accounts is discretionary. And in my view, to require an accounting at this point would result in a clear injustice as between the parties.

[Joan’s daughter,] Linda, as Estate Trustee, is hardly in a position to account for Joan’s spending while she was alive. Yet, to require a passing of accounts at this point would subject every line of Joan’s spending (as Attorney for Property) to the court’s scrutiny.  Moreover, as the Estate Trustee, the Defendant would be liable to account for any unexplained expenditures.

Indeed, it is unclear that the spending was spurious given the nature of the relationship between Joan and Ronald. Joan would have been spending the money as his wife as much as his Attorney for Property.  The failure to keep detailed accounts is hardly suspicious given the circumstances here.

…In the circumstances, I will not order a passing of accounts.

This decision is interesting in that it clearly considers the practicality of a passing of accounts and the inability of the deceased attorney’s estate trustee to properly account in the absence of relevant records in determining that it would be unjust to order a passing of accounts, despite there being no other apparent legal reason not to do so.

Thank you for reading.

Nick Esterbauer

 

Other blog entries that may be of interest:

10 Jun

Just how common is elder abuse?

Nick Esterbauer Elder Law, General Interest Tags: , , , , , , , 0 Comments

Our readers will all be familiar of the issue of elder abuse, and the various forms that it can take.  It is also well-known that elder abuse if underreported, giving rise to challenges in determining just how common it is and how incidence rates may be fluctuating within the context of our aging population.

A new study by Comparitech explores the issue of the underreporting of elder abuse and extrapolates reported incidents and studies regarding underreporting to gain an appreciation of how commonly it is actually occurring in the United States.  Comparitech estimates that at least 5 million cases of financial elder abuse occur every year in the United States alone.  While damages of $1.17 billion are reported, it is believed that the actual losses to seniors total $27.4 billion.

Technology also appears to be playing a role in increasing rates of elder abuse.  Comparitech found that 1 in 10 seniors were victims of elder abuse and that the use of debit cards have become the most common tool in defrauding them of their funds.  With phone and email scams on the rise in recent years, underreporting is anticipated to become a growing problem while incidence rates continue to increase without any way to determine exactly how many seniors are affected.

Thank you for reading.

Nick Esterbauer

 

Other blog posts that you may enjoy reading:

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