Author: Nick Esterbauer

31 Dec

Elder Law Implications of Genetic Testing

Nick Esterbauer Capacity, Elder Law, Estate Planning, Power of Attorney, Wills Tags: , , , , , , , 0 Comments

I recently read an article by Gregory Wilcox and Rachel Koff, which was published in the fall 2015 edition of the Journal for the National Academy of Elder Law Attorneys, that explores the use of genetic testing and counselling within the context of elder law.

The article describes the three uses of genetic testing as disease diagnosis, determining carrier status, and predictive testing.  Historically, genetic counsellors were required to rely upon basic Mendelian genetics that did not often reveal whether someone would eventually suffer from a certain delayed-onset disease. Because of recent developments, however, science now allows accuracy in determining whether a person will suffer (or be more likely to suffer) from a variety of medical conditions.  For example, the development of breast and ovarian cancer has been linked to the BRCA1 gene mutation, which can be tested for and discovered in time for adjuvant medical intervention.

Genetic testing is now capable of revealing whether a person may be especially susceptible to conditions that are often associated with aging, including Alzheimer’s disease, Parkinson’s disease, diabetes, and cancer.  However, to date, there is limited data confirming that individuals who are determined to be at a higher risk of developing a disease like Alzheimer’s actually do receive an eventual diagnosis at higher rates than the general population.  As a result of learning that one is at a higher-than-average risk of developing such a condition, lifestyle changes may be made in an effort to reduce the chances that an increased genetic risk is eventually expressed through the onset of the disease.

Perceived risk of developing a disease that may compromise mental capacity or shorten life expectancy may serve as motivation to obtain assistance in creating comprehensive incapacity and estate plans at an earlier life stage than these considerations might otherwise be made.  As the year ends, no matter current health status or perceived risk of developing certain diseases in the future, it is important to take the time to ensure that incapacity and estate plans are put into place and to keep those plans updated following any material change in family situation.

Happy New Year!

Nick Esterbauer

29 Dec

An Attempt to Rebalance China’s Aging Population

Nick Esterbauer Elder Law, General Interest, In the News Tags: , , , 0 Comments

As many of our readers are likely aware, China’s prohibition against having more than one child per couple will expire at the end of the year.  Since the late 1970s, most Chinese families have been limited to one child each.  The one-child policy was created to help offset China’s rapid population growth rate that doubled China’s population to well over one billion during the twentieth century.  As of January 1, 2016, however, after more than thirty years, Chinese parents will finally be able to have a second child if they choose to do so.

The change in Chinese policy has been triggered by what has been referred to as a “demographic time-bomb“.  According to the United Nations, the number of individuals aged 65 and older in China will increase from 131 million to 243 million by the year 2030.  Without an increase in China’s birthrate, there simply will not be enough people available to care for the elderly in the future.

The goal of the Chinese government in ending the one-child policy is to increase the country’s birth rate by approximately two million per year.  Despite the end of China’s one-child policy, the additional births that will result may or may not meet the demands of the aging population.  It is now expected that fewer parents than originally anticipated will take advantage of the new two-child policy, due to high costs of living in China’s urban centres and a small number of parents who have so far applied for an early exemption to the one-child maximum.  If this is any indication of how many Chinese parents will choose to have a second child, it is unlikely that the population will rebalance itself before the numbers of Chinese residents over the age of 65 explodes.

Thank you for reading.

Nick Esterbauer

06 Nov

Chimerism and Estates

Nick Esterbauer Estate & Trust, Health / Medical, In the News Tags: , , , , , , , 0 Comments

Doreen So recently wrote about Howard W. Jones and how the developments that he made in reproductive technologies have the potential to impact estate planning and intestacy laws.  An issue encountered in recent news may give rise to further uncertainty when it comes to the estates of individuals conceiving and being conceived through assisted reproductive technologies.

An article appearing in the Hamilton Spectator tells the story of how the paternity of a child conceived in vitro in Washington recently caused considerable confusion.  After their baby had been born, the couple questioned whether the wrong sperm sample had been used, as the child’s blood-type was inconsistent with those of its parents.  After this discrepancy came to light, the couple arranged for a DNA test to be conducted.  The testing confirmed that the sperm donor and intended father was not a biological parent of the baby.  Surprisingly, the results of the DNA testing revealed that the man was (biologically, at least) the baby’s uncle.

A geneticist at Stanford University investigated the situation and determined that the cause for the unplanned degree of relatedness between the mother’s husband and their child was a what is known as a chimera, rather than an error made at the fertility clinic.

Chimerism, also known as the “vanishing twin effect”, occurs when two zygotes fuse into one, which is estimated to occur in as many as one out of eight pregnancies.  The fusion of two twins results in one embryo that may consist of DNA derived from both zygotes.  In this specific case in Washington, some of the sperm donor father’s germline cells, being those that have the capacity to develop into eggs or sperm, were derived from his unborn fraternal twin.  As a result, 90% of the man’s sperm contains his own DNA and the other 10% contains the genetic material of his “brother”, giving rise to the ability of the man to father his own genetic nephew or niece.  The article reports that the man has another child, in addition to the newborn, who is, in fact, his biological child.

The incidence of chimerism, which is believed to be increasing with prospective parents more frequently obtaining assistance from fertility clinics, further complicates the issue of entitlement to a biological parent’s estate on intestacy and qualification as a member of a class identified within testamentary documents.  It will be interesting to observe how the case law may develop to address these issues.

Thank you for reading and have a great weekend.

Nick Esterbauer

05 Nov

Non-Resident Guardians of Property and Security

Nick Esterbauer Guardianship Tags: , , , , , , 0 Comments

The Substitute Decisions Act directs that, when a person who does not reside in Ontario is appointed as a guardian of property, that person must provide security, as approved by the Court, for the value of the property to be administered.  However, the Court also has discretion to waive the requirement that security be provided by a non-resident guardian of property.  Under what circumstances the Court will exercise its discretion to waive the requirement to post security when appointing a non-resident guardian of property is unclear within the legislation and little guidance is provided by the sparse case law that deals with this issue.

In a paper presented by Dermot Moore of the Office of the Public Guardian and Trustee (the “PGT“) at this year’s Six-Minute Estates Lawyer, Mr. Moore outlined the policy of the PGT on recommending security when a non-resident guardian of property is being appointed.  The PGT will typically recommend that security be required in the following circumstances:

  • If the proposed guardian is not a parent or spouse of the incapable person and the value of property is greater than $100,000.00;
  • If the proposed guardian is a parent or spouse, the incapable person does not own real property, and the value of the property is greater than $250,000.00; and
  • If the proposed guardian is a parent or spouse, the incapable person owns real property, and the value of the property is greater than $500,000.00.

It may be worth noting that in a jurisdiction such as Toronto, where property values are so high, a guardianship application by a non-resident of Ontario in respect of the average person who own real property will result in a recommendation by the PGT that security be posted.

In his paper, Mr. Moore notes that it is not infrequent for the Court to dispense with the requirement that security be provided if there is some argument in support of waiving the requirement.  One of the few decisions in which the issue of security in the appointment of non-resident guardians has been considered is Salzman v. Salzman, 2011 ONSC 3555, 2011 CarswellOnt 15786.  In this case, a resident of Quebec was appointed as guardian of property for his mother and was not required to post security upon his appointment.  In dispensing with the requirement to post security, Justice Hoy made note of the proposed guardian’s close relationship with his incapable mother, his historical assistance in managing her affairs, and the consent of his siblings, the only other beneficiaries of his mother’s estate, to the non-resident’s appointment and the dispensing of the requirement to post security.

Thank you for reading.

Nick Esterbauer

03 Nov

The Interpretation of Releases

Nick Esterbauer Litigation Tags: , , , , , , , 0 Comments

In Biancaniello, Romano, Prinova Technologies Inc. v. DMCT LLP, Collins Barrow, a recent decision by the Divisional Court, the dismissal of a motion for summary judgment was upheld despite the presence of a Release that appeared to bar the action in question.  The Defendants sought summary judgment on the basis that the action was barred by execution of a broadly-worded Release as part of the settlement of a prior action between the same parties.

Under the Release previously signed by the Plaintiffs in 2008, they agreed to release and discharge the Defendants:

“of and from all manner of actions, causes of actions, suits, debts, duties, accounts, bonds, covenants, contracts, claims and demands which against each other they had, now have or hereafter may, can or shall have for or by reason of any cause, manner or thing whatsoever existing to the present time with respect to any and all claims arising from any and all services provided by [the Defendants] to [the Plaintiffs] through to and including December 31, 2007 and, without limiting the generality of the foregoing, with respect to any and all claims, counterclaims or defences that were pleaded or could have been pleaded in the action commenced in the Ontario Superior Court of Justice, as court file No. 08-CV-349246 PD3” (para 7).

The motions judge determined that the Release did not bar a negligence claim that had arisen in 2011, three years after the Release had been executed, notwithstanding its broad language and seemingly all-encompassing nature.  The Ontario Superior Court of Justice had noted that the alleged negligence of the Defendants had not yet been adjudicated and should not have been subject to the Release that referred to claims “existing to the present time“, being 2008.

The Divisional Court recognized that a negligence claim may have been contemplated by the parties at the time that the Release was executed.  However, the nature of the negligence claim (and the significant tax liabilities resulting from same, in the approximate amount of $1,200,000.00) was unknown by the parties at the time of the 2008 settlement.  Justices Wilton-Siegel, Corbett, and Baltman found that the negligence claim was not barred by the Release, as it lacked any reference to the relevant transaction, language specifically releasing against claims resulting from “potential or undiscovered negligence”, and was limited in its scope through the reference to causes existing only at present, when the damages, in fact, resulted at a later time.

Although the motion for summary judgment and subsequent appeal did not involve an estate or trust, this decision is nevertheless relevant within the context of estate litigation, in which so many disputes are settled outside of court and settlements formalized by execution of Minutes of Settlement and Full and Final Mutual Releases.  When assisting clients in settling disputes, it is important to adequately consider claims that could potentially arise in the future and whether the terms of the release should explicitly refer to and waive such causes of action.

Thank you for reading.

Nick Esterbauer

11 Sep

Inheriting from Long-Lost Relatives – Part 3

Nick Esterbauer Estate & Trust Tags: , , , , 0 Comments

On Tuesday, I referred to an article, “Are You Related to This Violinist? If So, You Could Be a Millionaire”, which first got me thinking about the idea of inheritances received from distant (and potentially unknown) relatives who die intestate.  Thursday’s blog focused on the use of DNA evidence in establishing and disproving relatedness and how this technology may apply to the context of estate litigation and claims that a party is the next of kin of a person who has died intestate.

Further to yesterday’s post, it is worth mentioning that the Court will not always order a DNA test to establish a family relationship.  Earlier this year, in Re Branson Estate, the Alberta Court of Queen’s Bench refused to order the applicant to undergo genetic testing when such an order was sought by the respondent to the proceeding.  Both parties asserted that they were the biological sons of the deceased, who died intestate.  The respondent raised doubts with respect to whether the applicant was actually related to the deceased.  The applicant had produced his birth certificate, which identified the deceased as his father in support of this family relationship, but the respondent alleged that the applicant was the product of their mother’s affair with a man other than the deceased.  The Court ruled the hearsay evidence cited by the respondent inadmissible and determined that the applicant and respondent were both entitled to a 50% share in the estate of their father.  While DNA testing may be a viable way to dispute relatedness that forms the basis of a beneficiary’s claim against an estate, it cannot always be relied upon where admissible evidence does not raise uncertainty with respect to one party’s relatedness to a deceased family member.

The violinist, Eugene Bergen, whose story is featured in the article referred to in Tuesday’s blog died intestate in 2013 in New York City, at the age of ninety-six and with savings of nearly four million dollars.  Bergen played violin for the New York Philharmonic Orchestra and toured Europe with Glenn Miller during the Second World War.  Although he left behind an impressive life story, he does not appear to have been survived by a spouse, issue, or any other relatives.  As a result, the late musician’s estate is controlled by the Manhattan Public Administrator.  City officials are still trying to locate Bergen’s next of kin.  Eventually, if a living relative of Bergen cannot be found, the funds will be deposited with the city’s Finance Department.  In the last three and a half years, the Finance Department has received over sixty-six million dollars in unclaimed estate funds.  The author of the article that appeared in DNAinfo recommends keeping up-to-date genealogical records so that, if we are related to someone like Eugene Bergen, who has left a fortune but no Last Will and Testament or close family to inherit it, we do not miss out on an inheritance.

Have a nice weekend.

Nick Esterbauer

10 Sep

Inheriting from Long-Lost Relatives – Part 2

Nick Esterbauer Estate & Trust Tags: , , , , , 0 Comments

On Tuesday, I introduced the idea of receiving an inheritance from a long-lost relative who dies intestate.  While the law allows distantly-related next of kin to benefit from a deceased intestate, in reality, practical barriers often present themselves.

When trying to assert one’s position as a very distantly-related next of kin, the challenge may become proving (or, in some cases, disproving) the relationship.  It can be difficult or impossible to establish someone who was not recognized as a close relative of the deceased as the next of kin, absent DNA evidence.

In determining the degree of relatedness of one individual to another, geneticists use math models and averages.  However, when DNA analyses are done, our genetic materials do not always follow expectations based on mathematical trends.  For this reason, DNA test results may be inaccurate or inconclusive, suggesting that two individuals are more or less closely related than they actually are.  What makes the ability to rely on genetic testing more difficult is the fact that fourth cousins (and beyond) often share no more genetic material than that shared with any other member of the population.

Another difficulty that may present itself in determining the relatedness of one person with another who is deceased is that DNA testing requires a sample (such as hair or saliva) from both test subjects.  If the deceased has been cremated, a tissue sample may not exist at the time that the purported family member seeks evidence of their relatedness.

In Ontario, genetic testing can be used to support or dispute familial relatedness within the context of estate litigation.  The Court can order a DNA test to disprove genetic relatedness of a purported beneficiary on intestacy under Rule 33 of the Rules of Civil Procedure, which allows the mental or physical examination of a party whose condition is in question in a proceeding.  In Kelly Estate (Trustee of) v. Kelly, Justice Coats of the Ontario Superior Court of Justice granted leave for DNA testing of one party, an alleged daughter of the deceased, stating that “DNA testing is a highly reliable method of determining parentage.”

Thank you for reading.

Nick Esterbauer

08 Sep

Inheriting from Long-Lost Relatives

Nick Esterbauer Estate & Trust, General Interest, Wills Tags: , , 0 Comments

An article published last week asks the question “Are You Related to This Violinist? If So, You Could Be a Millionaire“.  We are all too familiar with spam emails alleging that we are the long-lost relatives of individuals of whom we have never heard.  Such emails are generally accompanied by the promise of fortune in exchange for a small initial payment or upon providing detailed personal information.  But how often do individuals actually benefit from the estate of a long-lost relative?

The Succession Law Reform Act refers to “degrees of consanguinity”.  The table of consanguinity outlines who will become the beneficiary of an Ontario resident’s estate in the event that he or she is not survived by a married spouse and/or immediate family.  The table begins with the closest degrees of kinship and usually expands to third cousins, three times removed, indicating which relatives rank above others with respect to the potential to benefit from the intestacy of a family member (whether close or distantly related).  The Succession Law Reform Act, however, does not limit the rights of a very distantly-related family member from seeking to collect as a beneficiary on intestacy – it merely indicates that when a person dies without a will and is not survived by a spouse, issue, parent, sibling, nephew, or niece, the closest degree of next of kin who do survive the intestate will share the estate equally (if more than one of equal degrees of consanguinity survive) or absolutely (if only one next of kin survives the deceased).  Although it may be rare, in theory, a third cousin, three times removed could become the sole beneficiary of an estate of a relative whom he or she never knew existed.  Only in situations where there is no next of kin will estate assets become the property of the Crown.

Thursday’s blog post will explore the challenges associated with asserting one’s position as a very distantly-related next of kin.

Thank you for reading.

Nick Esterbauer

20 Aug

Transition of Family Wealth Too Infrequently Discussed

Nick Esterbauer Estate & Trust, Estate Planning 0 Comments

A recent study looked at why wealthier families may not be discussing their estate plans with one another.

The study by CNBC suggests that no more than 56% of high-net worth Americans, identified as those with over one million dollars in investable assets, have communicated to the family members expected to survive them any details regarding a future inheritance.  Of those wealthy participants who have discussed their estate plan with family members, approximately one third have waited for their children to reach an age of thirty years or older before discussing such plans with them.

The results of this study may be surprising.  With greater wealth, assets are more likely to be complicated and require complex estate planning in order to facilitate family succession, while minimizing the taxes triggered by death.   In situations where there is more money to fight over, the likelihood of litigation may also increase, especially if wishes are not adequately explained prior to death.

The CNBC study cited concerns that children expecting a large inheritance may lack motivation to develop a strong work ethic as a cause of reluctance to inform younger beneficiaries about an upcoming gift.  Some of the study participants also worried that, if advised of an expected inheritance, children may not keep their parents’ estate plans (and the extent of family wealth) private.  Unsurprisingly, the most common reason why wealthy families are not more likely to discuss estate plans with one another mirrors that which prevents the average family from doing so – people are uncomfortable thinking about and openly discussing what will happen after one’s own death or that of a family member.

Most families will benefit from a discussing estate plans, whether informally or as part of a facilitated Family Conference.  If a testator’s intentions can be clearly expressed while he or she is still alive, litigation regarding the interpretation or validity of that plan among surviving family members can often be avoided.

Thank you for reading.

Nick Esterbauer

31 Jul

Genetic Testing to Determine Distribution of Murdered Vancouverite’s Estate

Nick Esterbauer Health / Medical, In the News, Litigation, Wills Tags: , , , 0 Comments

A young girl from China is eagerly awaiting test results of genetic testing that could mean that she is entitled to inherit her biological father’s $50 million fortune.

Gang Yuan, whom the child’s mother states is her biological father, was recently murdered in the Vancouver area.  The mother of his alleged biological daughter had a short-term romantic relationship with Gang, who was apparently aware that a baby girl had resulted.

Under the BC Wills, Estates and Succession Act, as the only child of Gang, the young girl in China would be the sole beneficiary of Gang’s estate, as he did not leave a valid Last Will and Testament and was unmarried at the time of his death.  In Ontario, the Succession Law Reform Act similarly provides that, if a parent dies intestate and is survived by no married spouse and only one child, that child will inherit the parent’s entire estate.

There has been some resistance to the genetic testing by Gang’s other family members, who wanted to have his body cremated.  However, just over two weeks ago, the British Columbia Supreme Court ordered DNA testing of Gang’s remains, which were chopped into more than 100 pieces.

Last year, Ian Hull and I co-authored a paper about fertility law from an estates perspective.  An interesting point that we considered was whether the same conclusion as may be reached in Vancouver could be drawn when a sperm or egg donor becomes a biological parent of a child with whom he/she either may or may not maintain a relationship, in the instances of intestacy or  class gifts.   The law remains unclear on this point, but will likely develop with increasing rates of infertility and use of donor genetic materials.

The results of the genetic testing with respect to the beneficiary of Gang Yan’s estate are scheduled to be released within the month.

Have a great long weekend!

Nick Esterbauer

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