Author: Noah Weisberg

02 Jan

Feeling Good into 2020

Noah Weisberg 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’

Noah Weisberg 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

Noah Weisberg 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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03 Oct

A Solicitor’s Duty and Will Drafting

Noah Weisberg Estate & Trust, Estate Litigation, Estate Planning, Wills Tags: , , , , , , 0 Comments

What is a solicitor’s duty when preparing a Will?

Those seeking to answer this question should start their journey with the BC Court of Appeal decision of Chalmers v Uzelac.  Here, Madam Justice Southin noted that, “every solicitor who, as part of his or her practice, draws wills should read, mark and inwardly digest at least once each year the judgment of Sir John Alexander Boyd, C. in Murphy v. Lamphier (1914), 31 O.L.R. 287, the Canadian locus classicus on a solicitor’s duty in taking instructions”.

Murphy is a seminal case.  The Court found that it was wrong to assume that because a person can understand a question put to them, and give a rational answer, that they are of sound mind and capable of making a Will.  Instead, the Court emphasized that capacity must be judged in light of the nature of the act and all of the circumstances:

“A solicitor is usually called in to prepare a will because he is a skilled professional man. He has duties to perform which vary with the situation and condition of the testator. In the case of a person greatly enfeebled by old age or with faculties impaired by disease, and particularly in the case of one labouring under both disabilities, the solicitor does not discharge his duty by simply taking down and giving legal expression to the words of the client, without being satisfied by all available means that testable capacity exists and is being freely and intelligently exercised in the disposition of the property. The solicitor is brought in for the very purpose of ascertaining the mind and will of the testator touching his worldly substance and his comprehension of its extent and character and of those who may be considered proper and natural objects of his bounty. The Court reprobates the conduct of a solicitor who needlessly draws a will without getting personal instructions from the testator, and, for one reason, that the business of the solicitor is to see that the will represents the intelligent act of a free and competent person.”

Expanding on this, the Ontario Court of Appeal in Hall v Bennett Estate references an article by M.M. Litman & G.B. Robertson which identifies common errors that have been either the subject of criticism by the courts or the basis of liability for professional negligence in the preparation of a Will, including failing to: obtain a mental status examination; interview the testator in sufficient depth;  properly record/maintain notes; test for capacity; and, provide proper interview conditions.

Read, mark, and inwardly digest this blog at least once a year accordingly.

Noah Weisberg

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01 Oct

Art & Taxes (& Estates)

Noah Weisberg Estate Planning Tags: , , , , , , , , , , , 0 Comments

I try to seize every opportunity I can to learn about art.  In preparing today’s blog, I was intrigued to read about the UK’s Cultural Gifts Scheme and its relationship to estates.

The Cultural Gifts Scheme & Acceptance in Lieu allows UK taxpayers to donate important works of art and other heritage objects in return for a tax reduction, which includes inheritance tax.  The donated work is then held for the benefit of the public or the nation at an eligible museum or gallery.  According to this article from the Guardian, the Scheme was first introduced in 1910 as a way of allowing individuals to offset inheritance tax bills, and later, in 2013, to allow individuals to be able to make donations during their lifetime in order to offset future tax liabilities.

Any art admirer should have a look at the 2018-2019 Annual Report which provides a list of items that were received, along with some pretty pictures of the items :).  It is a feast for the eyes and the senses.  Some of the highlights include:

  • a Portrait of the Emperor Charles V by Peter Rubens, which has gone to the Royal Armouries in Leeds
  • a platinum and diamond necklace with black velvet ribbons, convertible to a brooch, made by Cartier in Paris c. 1908-1910, which has been allocated to the Victoria and Albert Museum
  • 361 botanical drawings by the illustrator Florence Helen Woolward
  • Bernardo Bellotto’s painting of Venice on Ascension Day, which settled £7 million of tax
  • Damien Hirst’s Wretched War sculpture, given by the artist’s former business manager Frank Dunphy settling £90,000 in tax

In Canada, although art can be subject to capital gains, and possibly other taxes, it is possible for a donor to limit, or avoid the tax altogether, including by way of claiming a charitable tax credit.  Individuals thinking about estate planning and/or donating art should seek the advice of a professional advisor to maximize the amount of savings.

Thanks for reading,
Noah Weisberg

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30 Sep

Should a Millennial Have a Will?

Noah Weisberg Estate & Trust, Estate Planning, Wills Tags: , , , , , , , , , 0 Comments

I am not sure why, but whenever I talk to my friends about the benefits of having a Will, they seem to dismiss the advice, thinking that Wills are only meant for old people.  I was thus delighted to come across this article which highlights millennial-centric reasons for having a Will, some of which are as follows:

Digital Assets – while many millennials attest to not being flush with cash, many are flush with digital assets.  I have previously written about my digital presence, admitting that I have two personal e-mail addresses, four social media accounts, and so many points through reward programs such as Aeroplan, Indigo, Greenhouse Juice – the list goes on and on.  These assets carry both a financial and personal value.  Millennials preparing a Will should think about how they wish to transfer these assets.

Young Children – if a child is a minor, under the Children’s Law Reform Act,  it is possible for a testator to appoint one or more persons to have custody of that child in a Will.  It is also possible to set up a trust in the Will to ensure that the child’s inheritance is spent responsibly.  I often tell people that in making a Will, do not think of it as being done to benefit oneself (i.e. the testator), but to benefit and help your loved ones.  Being able to take care of minor children is a great example of this.

Pets Pets Pets – without engaging in the dog vs cat debate, it is suffice to say that many millennials have pets.  In fact, millennials these days are opting for pets over parenthood – just walk through Trinity Belwoods Park on a Saturday afternoon.  In Ontario, pets are considered property, and thus require specific estate planning.  Some options include leaving a cash legacy to a pet guardian or setting up a trust for a pet guardian, both of which can be accomplished in a Will.

Hoping that my millennial friends now agree that Wills aren’t just for old people!

Noah Weisberg

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02 Jul

Attorney for Personal Care Denied Request for Accounting

Noah Weisberg Guardianship, Passing of Accounts, Power of Attorney Tags: , , , , , , , , , , , 0 Comments

The recent Ontario Court of Appeal decision in Dzelme v Dzelme acts as a helpful reminder that even if an attorney has standing to seek a passing of accounts, the Court may still refuse to grant the passing.

John was named as the attorney for personal care for his father, Ritvers, and sought an accounting of Ritver’s financial affairs from his brother Arnis (Ritvers’ other son) who was the attorney for property.  Both John and Arnis agreed that John, given that he was an attorney for personal care, could apply under section 42(4)(1) of the Substitute Decisions Act for a passing of accounts without leave.  Nonetheless, the Court of Appeal identified that even if a person has standing to apply for an accounting, it remains the discretion of the Court to order a passing of accounts.

In deciding whether to order the passing, the superior court judge made the following findings of fact: (i) both the father and mother were capable when they executed written instructions to Arnis not to produce any financial information about his affairs to John; (ii) the mother maintained this position in response to John’s motion; (iii) a capacity assessment found that the mother was capable of making her own decisions; (iv) a third brother corroborated Arnis’ evidence that he was abiding by his parent’s wishes; (v) the application judge did not doubt that Arnis was following his mother’s wishes; and, (vi) there was no reason to suspect that Arnis was acting improperly with respect to certain transactions.

On this basis, the Court of Appeal upheld the application judge’s dismissal of John’s request for an order that Arnis pass his accounts of Ritver’s property.

Noah Weisberg

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27 Jun

What is the Limitation Period in Setting aside a Marriage Contract?

Noah Weisberg Litigation Tags: , , , , , , , 0 Comments

The recent Ontario Superior Court of Justice decision in F.K. v. E.A. addresses limitation periods and discoverability in the context of setting aside a marriage contract.

By way of background,  husband and wife began their relationship in 2000, cohabitating in June of 2004, and marrying on July 20, 2005.  Shortly before marriage, on July 14, 2005, the (soon to be) husband and wife entered into a marriage contract.  The marriage contract was prepared by the wife who obtained a template off the internet.  The husband and wife eventually separated on August 13, 2012.  A dispute arose over certain terms of the marriage contract.  The husband thereafter brought a claim on August 24, 2017 for spousal support, equalization, as well as setting aside the marriage contract.  Two of the issues that the Court addressed included whether (i) the relief sought to set aside the marriage contract is subject to the two year limitation period and, if so, (2) whether the husband brought his claim in time.

Regarding the first issue, the Court found that the husband’s claim to set aside the marriage contract is a claim as defined in section 1 of the Limitations Act and therefore subject to the two year limitation period.

As it relates to the second issue of discoverability, evidence was adduced that the husband met with a lawyer in October 2012 to discuss the dispute with his wife and certain legal issues arising with respect to the marriage contract.  Based on this evidence, the Court established that by that date at the latest, he first knew: that the injury, loss or damage had occurred; that the injury, loss or damage was caused by or contributed to by an act or omission; and, that the act or omission was that of the person against whom the claim is made.  The Court dismissed the husband’s claim finding that the two years began running the date he met with his lawyer.

 

Noah Weisberg 

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04 Apr

When Estates Become Public

Noah Weisberg Estate & Trust, In the News Tags: , , , , , , , , , 0 Comments

One of the consequences of having to probate a Will (now referred to in Ontario as applying for a Certificate of Appointment of Estate Trustee) is that the Will, along with the assets covered by the Will, are made public.

I was intrigued to read about the estate of the billionaire co-founder of Microsoft, Paul Allen.   In addition to Allen’s Last Will being made public,  multiple news articles have published a list of some of the amazing properties owned by him, including a:

  • condominium in Portland, Oregon ($700,000 to &850,000)
  • 20-acre property in Santa Fee purchased from Georgia O’Keefe’s estate ($15 million)
  • 2,066-acre ranch in Utah ($25 million)
  • Silicon Valley 22,005 square foot house ($30 million)
  • New York City penthouse on 4 East 66th Street ($50 million)
  • double property in Idaho totalling 3,600 acres ($50 million)
  • 3 acre compound on the Big Island in Hawaii ($50 million)
  • 18 bedroom mansion in the South of France ($100 million)
  • 387 acre camp in Lopez Island, Washington ($150 million)
  • 8 acres of land on Mercer Island, Washington ($130 million)
  • 400 foot Octopus Yacht (up to $130 million)

While I have no intention to address the efficacy of Allen’s estate plan, I thought the publicity of his estate provides a reminder that careful estate planning can ensure that privacy is maintained, and the payment of probate tax be avoided.  In Ontario, there are numerous options available including preparing a secondary (or tertiary) Will, placing assets in joint ownership with the right of survivorship, or simply gifting assets prior to death.  This is by no means an exhaustive list, and each option carries certain advantages and disadvantages.

While I expect that few people have the impressive catalogue of properties that Allen had, it should by no means preclude careful estate planning.

 

Thanks for reading!

Noah Weisberg

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02 Apr

The Ups and Downs of Estate Trustee Compensation

Noah Weisberg Executors and Trustees, Passing of Accounts, Trustees Tags: , , , , , , , , 0 Comments

When is it appropriate for a court to reduce estate trustee compensation?  The Supreme Court of Nova Scotia addressed this issue in Atlantic Jewish Foundation v Leventhal Estate (“AJF”).

Before getting into the AJF decision, it is worthwhile to include the caveat that determination of estate trustee compensation in Ontario (a summary of which can be found in my paper here) differs somewhat as compared to Nova Scotia.  Nonetheless, both provinces use 5% of the value of the estate, subject to the discretion of the court, as the starting point in determining the quantum of compensation.  As such, AJF remains informative in Ontario.

The deceased left a Will naming his friend, who was also a lawyer, as his Estate Trustee.  AJF was named as the residuary beneficiary.  The Will was silent as to estate trustee compensation.  As the estate was valued at over $15 million, the Estate Trustee sought compensation in the approximate amount of $896,000, being 5% of the gross adjusted value of the estate.  AJF maintained that the amount was excessive and proposed compensation in the amount of $300,000.

In determining how much compensation the Estate Trustee should be entitled to, and applying an approach similar to Ontario’s ‘five factors’, the court made the following observations: the level of responsibility is often greater for higher value estates; the increasing level of responsibility does not necessarily rise in direct proportion to the size of the estate; the Estate Trustee arranged and supervised the funeral and burial, which was mainly handled by telephone; the Estate Trustee acted promptly in selling the house; many of the assets were already in the form of cash, and the Estate Trustee knew the banks the deceased used; the Estate Trustee was diligent, wise and prudent and had to be a hands-on executor; the Estate Trustee made no mistakes; a large part of the estate was made up of investments that were readily converted into cash for distribution; and, the estate was larger rather than complex.

The court noted that 5% should be reserved for estates where there are complicating features that require more than wise and careful planning to maximize the value of the estate.  Therefore, the court awarded compensation in the amount of $450,000, being slightly more than 50% of the maximum amount that could be awarded.  A larger amount of compensation would have the effect of reading into the Will a bequest to the Estate Trustee that the deceased did not intend to make.

Noah Weisberg

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