Author: Paul Emile Trudelle

15 Jan

Implementing Do Not Resuscitate Directions at Home

Paul Emile Trudelle General Interest Tags: , , , 0 Comments

When sick, elderly or injured patients are hospitalized, the hospital usually has a discussion with the patient or their substitute decision-maker about end-of-life decisions. In particular, there usually is a difficult discussion about the extent to which the patient is to be resuscitated in the event of heart stoppage. Often, the patient wants to be allowed a natural death, with no heroic measures to prolong life, such as intubation or other artificial life supports. Such decisions can be made for a number of reasons, such as the person’s religious beliefs, a desire to avoid the pain and possibly harmful effects of resuscitation efforts, or a concern about quality-of-life post-resuscitation.

(It has been argued that calling the decision a “DNR” is stigmatizing, and should be called an “Allow Natural Death” order instead.)

If a decision to forego resuscitation is made, a “Do Not Resuscitate” (“DNR”) order is completed[1]. The decision is noted on the patient’s file, and often on the whiteboard by the hospital bed.

Difficulties can arise, however, when the person is not hospitalized at the time. If the person is at home and suffers an incident, the attending paramedics may have no way of knowing about any DNR decision. Ontario does not have any form of registry for DNR decisions, so paramedics have no way of searching on-line for DNR decisions.

In an interview with CBC Judy Nairn, Executive Director of Hospice Waterloo Region, suggested that people at home with concerns about their DNR order being honoured should put it on their fridge door: paramedics always look their first[2].

The news report referred to a 67-year-old woman who was so concerned that her DNR wishes be respected that she wears her DNR request around her neck.

It is not enough just to make the decision about resuscitation efforts. It is important to take steps to ensure that the decision, once made, is respected and acted upon.

Thank you for reading.

Paul Trudelle

[1] For a copy of the form, click here. Jennifer Hartman blogged on the development of the DNR Confirmation Form here.

[2] For this reason, the frail and elderly should also always keep contact information and details of any medical conditions and medications on their fridge.

08 Jan

Final Jeopardy!

Paul Emile Trudelle General Interest, In the News Tags: , , , 0 Comments

This week marked the airing of the final episodes of Jeopardy! featuring Alex Trebek as host.

Alex Trebek died on November 8, 2020 at the age of 80. Alex announced in March 2019 that he had stage IV pancreatic cancer. Despite this, he continued his hosting duties. He taped his final episode on October 29, 2020, which is being aired on January 8, 2021.

Alex’s openness and honesty about his diagnosis had a significant impact on awareness of pancreatic cancer and the need for early screening. Alex has spoken publicly about the need for more attention and awareness of the disease. He regrets not recognizing sooner the symptoms of persistent stomach pain, mid-back pain, unexplained weight loss and yellowing of the skin and eyes. See his public service announcement, here.

Alex was born in Canada. He received the Order of Canada in 2017. He also received many other awards and recognitions honouring his contributions to television and geographic education.

Alex began hosting Jeopardy! in 1984. Over the years, he hosted over 8,200 episodes. Apparently, Sean Connery never appeared on any of them.

To me, Alex Trebek is and always will be Jeopardy! My father loved the program, which he called, in his French accent, “G-O pardy!”. My mother, at 94, is still an avid fan. We know better than to try to call her between 7:30 and 8 pm.

Thank you for reading.

Paul Trudelle

18 Dec

Suing Cats: In Rem Titles of Proceeding

Paul Emile Trudelle General Interest Tags: , , 0 Comments

A legal claim “in personam” is against a particular person. My claim against David for $100 for an unpaid debt is an in personam claim. It affects him alone. This is to be contrasted with an “in rem” claim, which is Latin for “against or about a thing”. In estate litigation, when we are proving the validity of a Will, the proceeding is said to be “in rem”, as the determination does not just affect the beneficiaries, but third parties who may be called upon to rely on the determination of validity. A judgment in rem is said to bind “the whole world.”

In a recent article published at 24 Green Bag 2d 15, Florence Ashley discusses in rem case names. The article, “Humorous Styles of Cause in In Rem Actions: A Comparison of Canada and the United States”, lists the author’s selection of the fourteen funniest in rem styles of cause. Read the article for the author’s selection justification.

The list:

  1. South Dakota v. Fifteen Impounded Cats (SD 2010);
  2. Case of One 1985 Nissan 300ZX, VIN: JN1C214SFX069854 (4th Cir 1989);
  3. United States v. One Tyrannosauras Bataar Skeleton (SDNY 2013);
  4. United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls (D Wisc 1976);
  5. United States v. 11 ¼ Dozen Packages of Articles Labeled in Part Mrs. Moffat’s Shoo-Fly Powders for Drunkenness (WDNY 1941);
  6. United States v. One Solid Gold Object in Form of a Rooster (D Nev 1960);
  7. United States v. Approximately Thirteen Unoccupied Burial Plots Situated at Forest Lawn Memorial Park’s Hollywood Hills Cemetary [sic] (CD Cal 2017);
  8. United States v. Ninety-Five Barrels (More or Less) Alleged Apple Cider Vinegar (SCOTUS 1924);
  9. United States v. Approximately 64,695 Pounds of Shark Fins (9th Cir 2008);
  10. United States v. One Package of Japanese Pessaries (2d Cir 1936);
  11. Royal Bank of Canada v. “I Wonder” (The) (Can Fed Ct 1985);
  12. A Quantity of Copies of Books v. Kansas (SCOTUS 1973);
  13. United States v. 2,507 Live Canary-Winged Parakeets (SD Fla 1988); and
  14. 62 Cases of Jam v. United States (SCOTUS 1951).

Note that only one of the cases is Canadian. In the article, the author explores WHY Canadian in rem titles of proceedings are just not as funny.

Thanks for reading.

Paul Trudelle

11 Dec

Have a Penny?

Paul Emile Trudelle General Interest Tags: , 0 Comments

One of the assets of many estates is a big container of pennies. What can be done with these tiny assets?

In Canada, production of the penny stopped in 2014. However, the penny retains its value. Although the penny has been phased out, it still remains legal tender.

Banks will still accept pennies. However, most banks will require that they be rolled.

Don’t want to roll? Coinstar has kiosks around the city where you can dump your coins and convert them into cash for an 11.9% fee. If you choose to receive the value on a gift card, there is no fee.

Transporting them to the bank will not be easy. As each penny weighs approximately 2.5 grams (weight varies depending on composition), a kilo of pennies would only have a value of $4.00 (or $1.81 a pound).

[Fun fact: one pound of dimes, quarters and half-dollars all have the same value: $20. (Figures are for US coins. Canadian values should be similar, or close enough.) Good to know if you are in the midst of a looting and are not sure which bag of money to take. Pennies and nickels don’t fall into this pattern. Best leave the pennies and nickels behind.]

Part of the reason for eliminating the use of the penny was financial: the cost of producing and distributing each penny was 1.6 cents in 2012. Other reasons given by the Royal Canadian Mint include “the increased accumulation of pennies by Canadians in their households” (ie, that giant jar of pennies every estate seems to have), environmental considerations and the significant handling costs the penny imposed on the economy.

According to a 2014 report, the Royal Canadian Mint has redeemed 4 billion pennies. However, 31 billion were still in circulation at the time.

The redeemed pennies are being recycled. The pennies are first sorted according to metal content. Pre 1997 pennies are between 95% and 98% copper. Post-2000 pennies are 94% steel, with copper plating.

Before taking your pennies to the bank, you may want to sort through them first. Some pennies have significant collector value. For example, a certain 1936 Canadian penny, the “dot” coin, has the likeness of King George V on one side. New coins were to be made following George V’s death, using the likeness of his heir apparent Edward VIII. However, Edward VIII abdicated in 1936. The Royal Canadian Mint didn’t have a mold of the “new guy”, George VI, so the mint made pennies in 1937 using the prior monarch. The pennies have the year “1936”, with a raised dot below the date to signify that they were in fact made in 1937.  In 2013, one of these sold for $253,000 US.

Mentalfloss has a list of other things to do with pennies, other than depositing them at the bank. The list includes putting them in a sock, freezing them, and using them as a cold compress. Another option is to glue them onto other things, like a vase, coaster or picture frame. Penny floors, anyone?

As Eddie Shack used to say, “Look after the nickels and dimes, and the dollars will look after themselves.”

Thanks for reading.

Paul Trudelle

04 Dec

Posthumous Use of Reproductive Material

Paul Emile Trudelle Estate Planning Tags: , , 0 Comments

A recent B.C. Court of Appeal decision, L.T. v. D.T. Estate, 2020 BCCA 328 (CanLII) clarifies the ability to harvest and use reproductive material from a deceased individual. The decision makes it clear that the material cannot be collected unless the deceased consented to the removal of the material prior to death. The consent must be informed, and in writing.

The unfortunate facts are that Mr. and Ms. T were in a long-term relationship. They married three years before Mr. T’s death, and had one child together. They had discussed having another child. Mr. T died suddenly and unexpectedly. Ms. T brought an emergency application to allow for the removal of Mr. T’s reproductive material. The application was allowed, on the condition that the material not be released until the court could consider the matter further. The application judge then heard the matter and found that the removed reproductive material could not be used. The order was stayed pending an appeal to the B.C. Court of Appeal. “With regret”, and “aware of the painful and tragic circumstances confronting Ms. T’s family”, the B.C. Court of Appeal dismissed the appeal.

The B.C. Court of Appeal found that the clear wording of the Assisted Human Reproduction Act, S. C. 2004, c.2. applied. Section 8(2) of the Act mandates a clear prohibition on the removal of human reproductive material after the donor’s death without the donor’s written consent, to be given in accordance with the regulations.

The Court of Appeal distinguished a prior decision where material was allowed to be used notwithstanding the fact that the consent did not comply with the Act. In K.L.W. v. Genesis Fertility Clinic, 2016 BCSC 1621, (which Natalia Angelini and Nick Esterbauer podcasted on, here) the deceased had stored reproductive material before he died. He did not, however, give formal consent to its use posthumously. The court in K.L.W. held that the material was “property” and that it passed to the surviving spouse. While not commenting on the “reproductive material as property” argument, the Court of Appeal challenged the correctness of the K.L.W. decision. “The case should be treated as having been overruled insofar as it contemplates the possible use of reproductive material where the statutory conditions have not been complied with.”

The B.C. Court of Appeal stayed its own order to permit the parties to consider an appeal to the Supreme Court of Canada.

A consideration of the possible posthumous use of reproductive material should be a part of most estate plans. If you want to be able to use it, ensure that the requirements of the Assisted Human Reproduction Act have been complied with.

Thanks for reading.

Paul Trudelle

27 Nov

Annie Doesn’t Get the Gun: Passing of Accounts Issues

Paul Emile Trudelle General Interest, Litigation Tags: , , , 0 Comments

The recent decision of Mervyn Estate, Re, 2020 ONSC 6989 (CanLII) illustrates the types of issues that can arise on a passing of accounts, and also the underlying factors that can lead to a contested hearing.

In Mervyn, Bud died leaving a will. In his will, he appointed his second wife Anne, a long-time employee and his daughter as estate trustees. He also had two sons, who were beneficiaries. The estate trustees prepared an accounting, and his two sons raised objections.

Before getting to the specific objections, the court noted that there were a number of factors that contributed to the distrust and animosity between the trustees and the sons. Some of these pre-existed the estate administration, and several arose in the course of the estate administration. For example, the sons had a strained relationship with the second wife and their sister for some time. (Alarm bell: testators should reconsider appointing estate trustees who already have a strained relationship with the beneficiaries.) In addition, the estate trustees failed to disclose a bank account in their initial accounting. (Alarm bell: even though the judge found that this was an oversight, and that the estate trustees did not know of the account, this served to heighten the distrust.) Another factor was a “different understanding” between the parties as to whether Bud wanted a one-day open-casket visitation. (Alarm bell: this trigger point could be avoided by a testator making his or her plans clear to all.)

With respect to the specific objections to the accounts, one was that two rifles listed as estate assets in fact belonged to one of the sons. This led to the son reporting the “theft” to the police. The estate trustees countered by alleging that the son’s position that he owned the guns “effectively amounts to theft” by him. (Alarm bell: accusations of theft and the involvement of police can only intensify the animosity and distrust.)

The court ultimately accepted that the son had purchased the guns. Spouse Anne didn’t get the guns.

Which brings me back to the title of this blog. What came to mind was Squeeze’s “Annie Get Your Gun” from 1982. A great song that I will now be humming all weekend. What I wasn’t thinking about and only learned of after further digging was the 1946 musical about sharpshooter Annie Oakley, “Annie Get Your Gun” by Irving Berlin. The musical features the song “There’s No Business Like Show Business”. Think Ethel Merman. Another song that I might be belting out this weekend. Sorry family.

Have a great weekend.

Paul Trudelle

20 Nov

Gone But Not Forgotten: Dead Celebrity Earnings

Paul Emile Trudelle General Interest Tags: , 0 Comments

The earning power of the estates of deceased celebrities is astounding. According to a list published by Forbes.com, the 13 top-earning dead celebrities earned over $259 million collectively.

Here are the ranked names, their earnings, and a glimpse into the reason for the massive earnings:

Rank Name Date of Death 2020 Earnings* Contributing Factors
13 Marilyn Monroe August 4, 1962 $8 million Netflix biopic, branding, including Dolce & Gabbana, Lego,
12 George Harrison November 29, 2001 $8.5 million Las Vegas’ Cirque du Soleil’s Love
11 Freddy Mercury November 24, 1991 $9 million Royalties from biopic Bohemian Rhapsody, related music and merchandise sales
10 Prince April 21, 2016 $10 million Album sales, streams, royalties
9 John Lennon December 8, 1980 $13 million Album sales, streams, royalties
8 Bob Marley May 11, 1981 $14 million Album sales, streams, royalties, merchandise
7 Juice WRLD December 8, 2019 $15 million Album sales, music streams
6 Kobe Bryant January 26, 2020 $20 million Merchandising, sale of autobiography
5 Elvis Presley August 16, 1977 $23 million Down from usual, due to reduced earnings from Elvis’ home/museum Graceland, which usually earns $10 m a year, Netflix animated series
4 Arnold Palmer September 25, 2016 $25 million (Most surprising to me). Arnold Palmer hit a hole in one with Arizona Beverages to market his eponymous iced tea/lemonade drink, merchandising
3 Charles Schultz February 12, 2000 $32.5 million Programming royalties, new deal with Apple TV+ for series Snoopy in Space
2 Dr. Suess September 24, 1991 $33 million Book sales (6 m books in 2019), series deal with Netflix, movie deal for 3 movies with Warner Brothers
1 Michael Jackson June 25, 2009 $48 million Just because he is The Prince of Pop.

*based on pre-tax income from October 1, 2019, to October 1, 2020. Fees for agents, managers and lawyers are not deducted.

Thank you for reading.

Paul Trudelle

13 Nov

Still An Expensive Dock

Paul Emile Trudelle Litigation Tags: , , 0 Comments

On May 31, 2019, I blogged on the decision of Justice Morgan in Krieser v. Garber, [2019] O.J. 1619. There, the court found that a dock constructed by the Garbers (at a cost of $150,000) was improperly positioned, and posed a nuisance to the adjoining land owners, the Kriesers. The dock was ordered to be removed. The Garbers and the dock builder were also ordered, jointly and severally, to pay $100,000 in punitive damages, and $518,000 in legal costs, and the Garbers were ordered to pay further legal costs of $80,000.

The story does not end there. The Garbers and the dock builder appealed. In a decision released on November 5, 2020, the Ontario Court of Appeal allowed the appeal in part. The Court of Appeal upheld the finding of nuisance and the order to remove the dock. However, it struck the award of punitive damages against the dock builder. Further, it reduced the cost liability of the dock builder to $108,000.

With respect to punitive damages as against the dock builder, the Court of Appeal found that it was incorrect to treat the Garbers and the dock builder “as one” for the purposes of assessing punitive damages. Where there are multiple defendants, the court must consider the misconduct of each of the defendants separately. Punitive damages were appropriate as against the Garbers, as the protracted nature of the interference and their failure to accept a reasonable offer were significant factors. However, these did not apply to the dock builder. The dock builder had no power to move the dock, or to accept the offer to settle. Accordingly, the dock builder’s acts were “not so outrageous that punitive damages were rationally required to punish, deter or denounce it.” In addition, the dock builder was already punished by a criminal court, where a fine was imposed ($4,500), and by the judge’s order that the dock be relocated at the dock builder’s expense.

In reducing the dock builder’s cost liability, the court noted that the dock builder had limited ability to settle the claim. It could not relocate the dock without the Garbers’ approval. “It is unclear to me how [the dock builder] could have brought the action to an end prior to trial without Garber’s agreement.”

Thanks for reading. Have a great weekend.

Paul Trudelle

06 Nov

Voting And Powers of Attorney

Paul Emile Trudelle General Interest, In the News Tags: , , , 0 Comments

I just checked the news, and it appears that “voting” is a hot topic right now.

A question then occurred to me: Can an attorney under a Power of Attorney vote in a public election on the grantor’s behalf?

Under Ontario’s Substitute Decisions Act, 1992,  s. 7(2), a power of attorney may authorize a person “to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will.” Under s. 46(1), a person may give a written power of attorney for personal care, authorizing the person or persons named as attorneys to make, on the grantor’s behalf, decisions concerning the grantor’s personal care.

However, voting in a public election is considered to be an act that is personal in nature to the individual and not something that can be done by an attorney under a power of attorney.

(Not all voting by an attorney is prohibited: An attorney may have the ability to vote in the place of the grantor in a corporate context.)

According to the website “Probate Stars”, in most US states, voting by attorney is not allowed. In some states, for example, Florida and Arizona (gotta love Arizona), legislation expressly prohibits an attorney from voting on behalf of the grantor.

In other states, voting by attorney is presumed to be not allowed, as voting is considered to be an act that is “personal” in nature, and cannot be delegated. Quoting from a Tennessee appeals court decision of Rich Printing Co. v. Estate of McKeller (citation not given):

 It is axiomatic that an agency may be created for any lawful act and that whatever a person may lawfully do, if acting in his own right and in his own behalf, he may delegate that authority to an agent. It is also axiomatic that authority cannot be lawfully delegated which is illegal, immoral or opposed to public policy, nor can one delegate an act which is personal in its nature, such as designating an agency to perform a personal duty or a personal trust. Of course an elected officer cannot delegate one to hold the office to which he has been elected in the absence of statutory authority so to do, nor to cast his vote for him.

In Ontario, it would appear that this reasoning applies as well.

Even though an attorney cannot vote for the grantor, it may be possible for the grantor to authorize someone to vote on their behalf through a proxy in limited circumstances. For example, there is a reference to proxy voting in the “Voter’s Guide for Ontario Municipal and School Board By-elections 2016-2018”. The Guide confirms that an attorney cannot vote on behalf of the elector, but a properly appointed proxy can.

Thank you for reading.

Paul Trudelle

30 Oct

Distribution on Intestacy: The Preferential Share

Paul Emile Trudelle Estate Planning Tags: , , , 0 Comments

In Ontario, if a person dies without a will, the Succession Law Reform Act (“SLRA”) dictates how the person’s estate is to be distributed. Part II of the SLRA provides that if the person dies with a married spouse, that spouse receives a share of the estate. If there are no children, the spouse receives the estate outright. If the deceased has children, may be entitled to receive a share of the estate. If there is only one child, the spouse receives the “preferential share”, and half of any estate in excess of the preferential share goes to the spouse and the other half goes to the child (or the child’s issue, if the child has predeceased). If there is more than one child, the spouse gets the preferential share and one-third of the excess and the other children share the remaining two-thirds. Again, if a child has predeceased the deceased, the child’s issue enjoys that child’s share.

Things get a little more complicated where there is a partial intestacy. If the spouse receives assets under the will, the spouse’s preferential share is reduced by the value of the property received under the will.

Note that the intestate provisions pertaining to spouses in Ontario apply to married spouses only. Common-law spouses are not entitled to a share of the estate on an intestacy. However, they may be entitled to dependant support under Part V of the SLRA.

In Ontario, the value of the preferential share is not referred to in the SLRA. The value of the share is set by regulation: O. Reg 54/95. Since 1995, the value of the preferential share has been $200,000.

British Columbia intestacy legislation is somewhat different. The relevant legislation is the Wills, Estates and Succession Act, SBC 2009, c 13.

Firstly, in B.C., a spouse is defined as including a married spouse AND a person with whom the deceased lived in a marriage-like relationship for at least two years immediately before the death.

Secondly, in B.C., there are different calculations of the “preferential share”. If all of the children are children of BOTH the deceased and the surviving spouse, then the preferential share is $300,000. If all of the children are NOT “common” to the deceased and the surviving spouse, then the preferential share is only $150,000.

Thirdly, in addition to the preferential share, the surviving spouse is entitled to the “household furnishings”, which is defined as being the “personal property usually associated with the enjoyment by the spouses of the spousal home”. In Ontario, the value of the preferential share presumably includes the value of any household furnishings.

Fourthly, the B.C. legislation provides that if the estate is greater than the preferential share, then the surviving spouse gets half, and the deceased’s descendants get the other half, regardless of how many children there are.

Fifthly, the WESA provides for situations where there are more than one “spouse’. In such a case, the surviving spouses are to share the preferential share in the portion to which they agree, or failing agreement, as may be determined by the court. The WESA does not appear to give any guidance as to how that determination is to be made.

If you are short of things to think about this weekend, consider:

  1. Whether it is time to reconsider the value of the preferential share?
  2. Whether it makes sense to allow the spouse to have the household furnishings in addition to the preferential share. This personal property usually has nominal resale value, is difficult to evaluate, and often has sentimental or practical value to the surviving spouse.
  3. Whether Ontario should adopt a definition of “spouse” that includes common-law spouses for intestacy purposes, or whether resort to dependant support provides sufficient protection for common-law spouses?
  4. Whether the fact that the surviving children of the deceased are also the surviving children of the surviving spouse should impact on the value of the preferential share, as it does in B.C.?
  5. Whether the percentage of the estate in excess of the preferential share that the surviving spouse gets should vary depending on how many children the deceased had (that is, 50% if only one child, but only 33% if more than one child)?

Thank you for reading. Have a great weekend.

Paul Trudelle

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