Author: Paul Emile Trudelle
We are in the midst of what Andy Williams proclaimed as “the Most Wonderful Time of the Year.” However, holidays can be a particularly difficult time following the death of a loved one.
Marie Curie, a UK organization that provides support for those suffering with terminal illness and their families, has published a list of coping strategies for those dealing with the loss of a partner or parent during the holiday season. Their tips include:
- Do things differently. If normal traditions are too painful, try something new.
- Allow yourself to grieve. Acknowledge that the holidays will be difficult.
- Accept that you may not want to celebrate. You don’t need to socialize if you don’t want to.
- Visit a garden. Gardens are a great, quiet space to reflect on your loss.
- Tell others how you wish to spend your time. Choose what you want to do and don’t feel guilty.
- Be kind to yourself. Take a guilt-free nap.
- Reach out for support if you think you need it.
- Involve children in decisions on how they want to spend their time.
- Have quiet time to reflect on the good times.
- Don’t feel guilty if you have moments of enjoyment.
- Talk about favourite memories.
Whatever your situation, may your days be as merry and bright as possible.
The recent decision of Muth Estate, 2019 ABQB 922, a decision of the Court of Queen’s Bench of Alberta, is a cautionary tale (and a scary one, at that) for estate trustees when distributing an estate.
There, the estate trustee distributed the estate to herself and other beneficiaries of an estate, subject to a holdback. The holdback was insufficient to satisfy amounts owing to CRA. The estate trustee then brought an application for an order requiring that the beneficiaries indemnify her for the amounts owing to CRA.
The estate trustee moved for summary judgment. Summary judgment was denied. The court found that the respondent beneficiaries had no obligation to indemnify the estate trustee.
As background, the estate trustee retained an accountant to prepare estate tax returns. The accountant advised that a holdback of $25,000 was sufficient. The estate trustee therefore held back $25,000, and distributed the balance of the estate. Unfortunately, that accountant did not file the required returns. A second accountant then completed the returns. The tax owing and the second accountant’s invoice totalled $60,772.19. The estate trustee paid this amount, and sought indemnification from the beneficiaries for their share of this amount.
(Query: Whether the estate trustee would have a claim against the first accountant?)
Of note, when making the distributions, the estate trustee could have but did not ask the beneficiaries to provide an indemnity.
The court held that the Income Tax Act imposed personal liability on the estate trustee for unpaid taxes where a clearance certificate is not obtained.
The court went on to find that one of the duties of an estate trustee is to file tax returns and pay taxes owing. As the estate trustee breached her duties, she was not entitled to an indemnity. Relief may have been available if it was the beneficiaries who instigated or requested the breach. However, this was not the case.
The natural corollary of that principle [breach of trust at instigation of beneficiaries] is that if the beneficiaries did not instigate or request the breach, they cannot be obligated to indemnify the trustee. In a fiduciary relationship such as that between a trustee and a beneficiary, the logic of that corollary is that as between the two parties, one who had the obligation to perform the duty and failed and one who had neither the obligation nor the means to satisfy it, it is the former who should bear the consequences of the action or inaction.
Interestingly, the judge dismissed the estate trustee’s motion for summary judgment, but, notwithstanding the finding that the beneficiaries were under no obligation to indemnify the estate trustee, did not dismiss the proceeding. The beneficiaries did not ask for this relief. The matter was therefore allowed to proceed. However, the estate trustee was warned that “if she continues with the lawsuit, she may face a significant costs award if another judge comes to the same conclusion at the end of the suit.”
Thank you for reading.
In a decision out of the Supreme Court of British Columbia, a computer file prepared by the deceased was accepted as a will and admitted to probate. Applying the curative provisions of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), which came into force on March 31, 2014, the court was able to conclude that the computer record represented the deceased’s full and final testamentary intentions.
In Hubschi Estate (Re), 2019 BCSC 2040 (CanLII), the deceased died after a short illness. No formal will was found. However, his family was able to locate a Word document on his computer labelled “Budget for 2017”. In that computer file, there was the following statement: “Get a will made out at some point. A 5-way assets split for remaining brother and sisters. Greg and Annette or Trevor as executor.”
By way of family background, the deceased was given up by his birth mother at birth to Children’s Aid. At age 3, the deceased was placed in a foster home with the Stacks. He grew up in the Stack house, and was extremely close to his foster parents and 5 foster siblings. He was treated by the immediate and extended Stack family as a member of the family. Upon his foster mother’s death, her estate was divided into 6 shares, with one share passing to the deceased.
On the other hand, if the document was not found to be a will, the deceased’s estate would pass on an intestacy, and would pass to his birth mother’s sister, with whom the deceased had no contact whatsoever.
The court reviewed a number of decisions applying WESA. The court observed that the purpose of the curative provisions in WESA was to avoid the injustice of a deceased’s testamentary intentions being defeated for no good reason other than strict non-compliance with execution and attestation formalities.
In order to obtain probate of a non-compliant document, the propounder must demonstrate (1) that the testamentary document is authentic, and (2) that the testamentary document contains the full, final and fixed intention of the will-maker. The court found that both of these requirements were met in the Hubschi case.
Previously, I blogged on an Australian case where an unsent text message was admitted to probate under similar legislation. Read about it here. This decision was referred to by the court in Hubschi.
For better or for worse, Ontario legislation does not allow for substantial compliance with the formalities of will execution, and strict compliance is required. While this may lead to greater certainty, it also means that the testamentary intentions of a will-maker are often disregarded where there is not strict compliance with the formal requirements of execution.
Have a great weekend.
Acting as an estate trustee can be complicated. Complications are multiplied where the estate includes property that is or has been used in a manner contrary to the Cannabis Control Act.
Under the Cannabis Control Act, S.O. 2017, Chapter 26, as amended, various offences are created involving the production, sale or other distribution of cannabis. Vis-à-vis landlords, section 13 of the Act makes it an offence to “knowingly permit a premise of which he or she is a landlord to be used in relation to activity prohibited by section 6”. Section 6 provides that no person shall sell cannabis, other than an authorized cannabis retailer.
The Act provides for penalties for landlords of at least $10,000 and not more than $250,000 or imprisonment for a term of not more than two years less a day, or both. Fines are subject to an additional 25% Victim Fine Surcharge.
Additionally, the court may, upon conviction, order that a premise be closed to any use for a period not exceeding two years. Prior to conviction, the police may cause the premises to be closed immediately. The premises are to be closed until the final disposition of the charge, subject to an order of the court lifting the closure.
A defense to a charge against a landlord under the Act is the fact that the landlord took reasonable measures to prevent the prohibited activity.
Additionally, forfeiture could be sought by the Crown under the Civil Remedies Act.
An estate trustee holding real property should take steps to ensure that he or she knows what is happening at the property, and to ensure that the property is not being used for illegal activity. In addition, the estate trustee should document the steps that are taken to prevent illegal activity. Leases should be reviewed in order to ensure that they prohibit illegal activity.
For further information, see “The Ontario Cannabis Control Act and Implications for Commercial Landlords” by David Reiter and Brian Chung.
For a blog on Cannabis and Estate Law, see my prior blog, here.
Have a great weekend.
Yesterday, Natalia Angelini blogged on a “purification grave” for students in Holland. The grave allows students to reflect on their lives, and their inevitable death. The grave serves as a very real memento mori, or awareness of our own death.
Another memento mori is the Swedish practice of “döstädning”, or death cleaning. As explained in Margareta Magnusson’s The Gentle Art of Swedish Death Cleaning: How to Free Yourself and Your Family From a Lifetime of Clutter, the practice calls for the decluttering of one’s lifetime of possessions so that your death is not such a burden on those left behind.
Magnusson advocates the proactive and mindful clearing out of possessions. This is therapeutic and cathartic for the cleaner, and benefits those who have to deal with a person’s “stuff” after they die.
One test of whether to discard something or hang on to it is to ask yourself whether anyone will be happier if you were to hold onto the object. This is similar to Marie Kondo’s test of asking yourself whether the item “sparks joy”.
Unlike Marie Kondo’s methods, Magnusson’s approach is a slower, more methodical one. The “gentle” process involves examining one’s possessions, one by one, and deciding whether to keep it, gift it to family or friends, donate it to a charity, recycle it or trash it. It is a slow shedding of the baggage of life.
As with other minimalist approaches, less is more: for you and for those you leave behind.
Thanks for reading.
Most professions require their members to complete a certain amount of continuing education. For example, lawyers in Ontario are required to complete 12 hours of Continuing Professional Development, with a minimum of 3 hours of Continuing Professional Development having certain “professionalism” content.
Failure to complete the required continuing education can lead to suspension. Often, professionals scramble at the last minute to complete their continuing education requirements.
In recent disciplinary proceedings, insurance agents had their insurance agent licences revoked where they did not complete the required continuing education, and submitted fraudulent continuing education certificates
In both D’Mello v. Ontario (CEO of FSRA), 2019 ONFST 20 and Sohi and Sandhu v. Ontario (Superintendant Financial Services), 2019 ONFST 9, insurance agents purchased continuing education certificates from a Mr. Rutledge, a continuing education teacher. The certificates confirmed that the agents received 30 hours of continuing education. However, the teacher did not provide the agents with any training or educational materials. The agents paid the teacher $100 for the certificates.
In the Sohi and Sandhu proceeding, the Financial Services Tribunal refers to the evidence of Mr. Rutledge. It is said that while he was at one point a continuing education teacher, he stopped teaching long before the incidents in question. When contacted by a former student or person referred by a former student, he would “help” them with their licence renewals by selling them the false continuing education certificates for courses they did not actually study for or take.
The Tribunal held that the agents knowingly submitted false continuing education certificates and intentionally misled the Financial Services Commission of Ontario. Their licences as insurance agents (all three had been agents for 20 years or more) were revoked.
The moral of the story is obvious: complete your continuing education. Actually complete it!
Also, complete it early. As stated in the D’Mello decision, while failing to complete your continuing education does not automatically constitute incompetence, leaving it to the last minute constitutes “brinksmanship”: in the case of the insurance agents, “leaving 30 hours of CE compliance to late in the two year cycle would seem to demonstrate a lack of good planning”.
For our blog from 2010 on the introduction of Continuing Legal Education requirements, see here.
Thank you for reading.
Do you smell that? Good!
The sense of smell, or lack of it, can be an indicator of the future onset of dementia.
In a study of 3,000 adults, researchers at the University of Chicago Medical Center found that those who could not identify four out of five common odours were twice as likely to develop dementia within five years.
The study, “Olfactory Dysfunction Predicts Subsequent Dementia in Older US Adults”, was published in September 2017 in the Journal of the American Geriatrics Society. The scents used, in increasing difficulty of recognition, were peppermint, fish, orange, rose and leather. The study found that 78.1% of those studied had a normal sense of smell, and could identify four out of the five scents. 18.7% could identify only three of the scents, and 3.2% could only identify one or two of the scents.
After five years, almost all of those who could only identify one or less scents were diagnosed with dementia.
According to the study, the sense of smell may signal a key mechanism that also underlies human cognition. The olfactory system has stem cells which regenerate, and “a decrease in the brain’s ability to smell may signal a decrease in the brain’s ability to rebuild key components that are declining with age, leading to the pathological changes of many different dementias.”
Because the smell test is so easy to administer, it is believed that the test could lead to an earlier determination of the possible onset of dementia.
A few Thanksgiving-related items:
- To go “cold turkey”: to stop an addictive habit suddenly and completely. To be contrasted with a gradual cessation or weaning.
There are differing opinions on the origin of the term. One theory is that the term derives from the cold, clammy feel of the skin during withdrawal, like a turkey that has been refrigerated. Along the same lines, the term may refer to the goosebumps and cold sweats that abstaining addicts may suffer from.
Another theory is that the term derives from a combination of “cold”: in the sense of “straightforward” or “matter-of-fact”, as in “the cold, hard truth”, and “talking turkey”, meaning to speak plainly. Proponents of this theory refer to the fact that the term was used before it was applied to withdrawals from drug addiction.
- John Lennon wrote a song called “Cold Turkey”, which was performed by the Plastic Ono Band. The song was first performed on September 13, 1969 in Toronto, and appeared on an album called “Live Peace in Toronto 1969”. The song’s lyrics are definitely not about a Thanksgiving dinner leftover.
- When cooking turkey, it shouldn’t be cold. Butterball has a “Turkey Calculator” that will tell you how big a turkey to buy, how long to thaw it, and how long to cook it, based on the number of guests.
- “Did you know that Canadians celebrate Thanksgiving at the beginning of October and yet Americans celebrate their Thanksgiving at the end of November? That means we must have invented it, because we celebrate it first. Did you? It’s a fact.” – “It’s a Canadian Fact”, SCTV.
Cold turkey or hot, enjoy your Thanksgiving.
Fall arrived this year on Monday September 23. On that date, the plane of the earth’s equator passed through the centre of the sun. The Earth’s axis is not tilted towards or away from the sun: equinox. Simply put, colder days and longer nights ahead.
“Equinox” comes from the Latin word “aequinoctium, or “equal nights”. On equinox, we have darkness and light for approximately 12 hours each. (There are some variations, depending on geography and physics.)
The onset of fall signals the onset of pumpkin spice time. Although I am not a fan of the mixture of cinnamon, nutmeg, ginger, cloves and allspice in anything other than a pumpkin pie, it appears that the spice mix has found its way into just about everything. Lattes are an obvious example. However, it is now found in Spam. At the liquor store, you can find pumpkin spice beer, whisky (“Nose: Perfect subtle sweet pumpkin pie combined with a barrel oak scent to create a very pleasing aroma. Taste: Pumpkin and whisky at the forefront with the spice becoming more predominant later in the taste sequence. A nice whisky/pumpkin finish.”), and Baileys (“aromas and flavours of nutmeg, pumpkin, vanilla pie crust and coffee”).
In Canadian courts, pumpkin spice has made a few recent appearances. In R. v. King, 2019 ONCJ 366, the accused was charged with communicating with a person under 16 for the purposes of committing an unlawful sexual act. The admitted facts were that the accused, aged 52, chatted online with a police detective posing as a 14 year old girl. The accused arranged to meet with the “girl”, and arrived in his vehicle with “a flannelette blanket, a purple vibrator, some baby wipes and the pumpkin spice latte” that the “girl” requested. As summarized by the court, “”the defendant drove over 200 kilometres with tools of seduction at hand and pumpkin spice latte at the ready.”
Pumpkin spice latte also figured in a very different type of case. In Bernstein v. Peoples Trust Company, 2019 ONSC 2867, the issue was the certification of a class action involving a claim of improperly charged fees on “payment cards”. The Defendant argued that the payment card was not a gift card because it did not create an entitlement to purchase any specific item, and was merely a cash replacement. In the Applicant’s Factum, which the judge agreed with, the Applicant argued that the card entitled the holder to make purchases. It was akin to a gift card. “… the holder of a Starbucks card does not have a specific entitlement to be sold a pumpkin-spice latte in July, only a general entitlement to the products that the coffee chain offers at a particular time.”
Enjoy the season/seasoning.
The Ontario Court of Appeal recently set aside an order committing an estate trustee to 15 days in jail, to be served on weekends, for contempt of an order requiring the estate trustee to pass his accounts.
In Ross v. Ross, 2019 ONCA 724 (CanLII), the estate trustee was a lawyer, 73 years of age, with no prior convictions or findings of contempt. At the time of the appeal, the estate trustee had purged his contempt.
At the hearing below, the judge found that the contempt arose from “a failure to understand and appreciate or to ignore the need for, and importance of, complying with the order within the specified time or within a reasonable time.” The Court of Appeal held that this finding meant that the estate trustee’s actions did not amount to a callous disregard for the court’s authority. Accordingly, a jail sentence was not appropriate.
For other cases on contempt and sentencing, see our blog, here and here. In the first blog, reference is made to a case where an 88 year old litigant with health issues was sentenced to 30 days in jail for contempt. In the second blog, we discuss a case where an attorney for property failed to pass accounts as required by court order. He was fined $7,000.
Finally, consider the case of Canavan v. Feldman, 2004 CanLII 4787 (ON SC). This was a claim by an estate trustee against his former lawyer. There, the estate trustee, 67 years old, spent 35 days in jail for contempt of court orders relating to a passing of accounts, and was only released when new counsel put further evidence before the court. The estate trustee’s prior lawyer had consented to an order of contempt without the estate trustee’s knowledge. The lawyer told the estate trustee that he had “nothing to worry about”. At a sentencing hearing, the lawyer did not attend. The estate trustee was sentenced to 6 months in jail. The estate trustee was awarded general damages of $200,000 and punitive damages of $100,000 against his prior lawyer.
Thanks for reading.