Author: Paul Emile Trudelle

12 Apr

Fun Fact Friday: The Masters Edition

Paul Emile Trudelle Estate & Trust, Estate Litigation, Estate Planning Tags: , , 0 Comments

This weekend sees The Masters Tournament being hosted once again at the Augusta National Golf Club in Augusta, Georgia. The Masters was established in 1934, making this its 85th year.

Elizabeth and Herman Thacker have seen many of those tournaments. They have lived in their home next to Augusta since 1959.

Over the years, the Augusta national Golf Club has spent a reported $40 million (US), according to Business Insider, buying up homes next to the course, to accommodate parking. However, to date, the Thackers have resisted Augusta’s offers.

A 2019 article in Bisnow reported that Augusta National has spent $200 million over the past 20 years to purchase land surrounding the famed course. Purchases include two strip malls, and a church.

The spending spree does not seem to have had an impact on food prices at the tournament. A pimento cheese sandwich is still only $1.50, and a beer is $4.00. Take that, Rogers Centre!

On to the green jacket: all members of the Augusta National Golf Club (there are about 300 of them) get a green jacket. This was to identify them as members. In 1949, the club began awarding a jacket to tournament winners (although they don’t get  a membership). The winner is allowed to take the jacket off of the club grounds, but only for one year. The green in the jacket is “Pantone 342”.

Caddies at The Masters are not so sartorially lucky. They are required to wear white coveralls and a green baseball hat. Until 1983, golfers couldn’t bring their own caddies, but had to use caddies supplied by Augusta National. The coveralls each have a number on the front. The defending champion gets #1; other numbers are based on the order that the caddies check in to the tournament.

Have a great weekend.

Paul Trudelle

29 Mar

Know your Doctrines: The Doctrine of “Facts of independent Significance”

Paul Emile Trudelle Beneficiary Designations, Estate & Trust, Estate Litigation, Estate Planning, Trustees, Uncategorized, Wills 0 Comments

The “doctrine of facts of independent significance” is a doctrine that can assist in resolving potential uncertainty in a will.

For example, a bequest of “my car to my partner at the time of my death” may be void for uncertainty. However, certainty can be achieved by reference to a fact of independent significance: that is, a fact that is independent of simple testamentary significance, such as the fact of who the testator’s partner was at the time of death. The fact of the make and model of the testator’s care is also a fact of “independent significance”.

The doctrine is illustrated in the 1837 decision of Stubbs v. Sargon (1837) 2 Keen 255, 48 E.R. 626. There, the testatrix directed that certain of her property be divided “amongst my partners who shall be in co-partnership with me at the time of my death or to whom I may have disposed of my said business”. Prior to her death, the testatrix sold her business to certain persons. An action was brought to challenge the gift in the will. It was argued that the gift was “imperfect”, as the testatrix did not designate the beneficiaries, leaving them to be constituted afterwards, with none of the solemnities associated with making a will.

The court disagreed. The court drew an analogy to a bequest to a testator’s children. Even though the testator may not have children at the time of making the will, the gift will be upheld.

“The point is that though a non-testamentary act may affect the disposition of property passing through a will, if it can be said that the act has a non-testamentary significance, that is, a significance which is not exclusively referable to the passing of property under the will, then the non-testamentary act is effective to pass such property.”[1]

Thus, in the example above, children are children regardless of what is stated in the will. Their status as children is of independent significance.

The doctrine is of limited application. It will not be extended to validate a “pour-over” clause in a will that makes a bequest to an amendable, revocable inter vivos trust. As noted in Osterhoff on Wills, 8th ed., such trusts do not have a sufficient “independent significance”, and the “testator is purporting to make a future unattested codicil to the will”.[2]

 

 

 

Thanks for reading.

Paul Trudelle

[1] Quinn Estate v. Ryland, 2019 BCCA 91, para. 25, citing Professor Litman, “Pour-Over Wills: Their Relationship to the Doctrine of ‘Incorporation by Reference’ and the Doctrine of ‘Facts of Independent Significance’”, (1979) 4 E.T.R. 48.

[2] Quinn Estate, supra, para. 28

22 Mar

A Few of Rodgers and Hammerstein’s Favourite Things

Paul Emile Trudelle Uncategorized Tags: , , , , 0 Comments

Ariana Grande has a hit song with “7 Rings”, and the company that owns the rights to the Rodgers and Hammerstein catalogue is enjoying the sound of her music.

The song “7 Rings” is based largely on “My Favorite Things”, the 1959 song written by Rodgers and Hammerstein for the movie “The Sound of Music”. In it, Ms. Grande sings about some of her favourite things. There are no “raindrops on roses” or “whiskers on kittens”, but, rather, “breakfast at Tiffany’s and bottles of bubbles, girls with tattoos who like getting in trouble”. In the song, Ms. Grande laments (or boasts) that her receipts “be lookin’ like phone numbers”. I doubt that Julie Andrew’s character Maria in “The Sound of Music” ever observed that “Whoever said money can’t solve your problems must not have had enough money to solve ‘em”.

The video for the song had 268,264,254 views as of the time of writing.

According to a story in the New York Times, Concord,  a music company that owns the Rodgers and Hammerstein catalogue, is to receive 90% of the song writing royalties. This high percentage is thought to be because of the original song’s iconic status, and the extent to which the new song is based on the original.

Composer Richard Rodgers died in 1979, and lyricist Oscar Hammerstein died in 1960. According to The AM Law Daily, their estates sold Rodgers and Hammerstein Organization, which controlled the rights to the complete words of both artists, to Imagem Music Group in 2009 for more than $200 m US.

This is not the first time that modern artists have borrowed from Rodgers and Hammerstein. In 2006, Gwen Stefani sampled from their “Lonely Goatherd” song, also from “The Sound of Music”. There, the song writing duo’s catalogue only received 50% of the royalties.

Have a great weekend.

Paul Trudelle

15 Mar

Don’t Do The Crime: Forfeiture Conditions in Wills

Paul Emile Trudelle Beneficiary Designations, Estate & Trust, Estate Planning, Trustees, Wills 0 Comments

In his Will, Moses Woods left his family home to his third son, David, subject to a life interest in favour of Moses’ wife, PROVIDED THAT David has not been convicted of a criminal offence before he reached 21 years of age. In the event that David was convicted, the home was to be sold and the proceeds would pass to his two other sons.

The deceased died when David was 20. Unfortunately, David was convicted of criminal offences at the age of 17. This was before the Young Offenders Act was in force. David was convicted as an adult.

Notwithstanding, David asked that the home be transferred to him. The estate trustee (one of the deceased’s two other sons) asked the court for advice and directions.

Before the lower court (Woods Estate v. Woods, 2005 CanLII 1411 (ON SC)), the court held that the condition was a “condition subsequent”, meaning that the home vested with David at the time of the deceased’s death, subject to divestment if David was to be convicted of a criminal offence before reaching the age of 21. Although he was convicted, the lower court held that the operation of the condition was postponed until David turned 18, the age of majority. The lower court held that the operation should not operate while David was a minor because, as a minor, he could not refuse or neglect to perform the condition.

The estate trustee appealed. On appeal (2005 CanLII 40134 (ON CA)), the Court of Appeal disagreed with the conclusions of the court below. First, they said that it was not clear that the condition was a “condition subsequent”, acknowledging that the application judge herself said that “the matter is not free from doubt”. In any event, they disagreed that David was not bound by the condition until the age of 18. They found that while a minor is not accountable for refusing or neglecting to comply with a condition subsequent that the minor is incapable of complying with, David’s circumstances did not fall within that category. David was capable at the age of 17, as a matter of law, of committing and being convicted of criminal offences. In the eyes of the [then] criminal law, he was an adult and responsible for his criminal misdeeds.

The Court of Appeal went on to find that relief from forfeiture was not available. None of the situations in which relief from forfeiture could granted applied here.

In sum, David was found to have breached the condition of the will, and therefore forfeited his right to the property.

Have a great weekend.

Paul Trudelle

08 Mar

Sleeping is the New Standing

Paul Emile Trudelle Estate & Trust, Estate Planning, Uncategorized Tags: , , , 0 Comments

Standing was the new sitting. Now, sleeping is the new standing.

Behold – the sleeping desk:

 

As we all know, focus and attentiveness are key to workplace success and efficiency. Coffee is a great aid to maintaining this focus. However, afternoon coffee consumption can interfere with nocturnal sleeping patterns, leading to drowsy, unfocused mornings, thereby exacerbating the problem.

The solution? The sleeping desk (aka the nap desk).

According to an article by theheartysoul.com, an afternoon nap can improve mental alertness. A short nap can be more beneficial than a long sleep. (As if we needed more reasons to nap, see “8 Scientific Benefits of Napping”.)

The sleeping desk, designed by Nancy Leivaditou, is a multipurpose desk that can transform into a bed. See the desk in action, here.

Happy napping.

Paul Trudelle

01 Mar

Put Up or Shut Up: Leading Trump When Challenging a Will

Paul Emile Trudelle Estate & Trust, Estate Planning, Trustees, Uncategorized, Wills Tags: , , 0 Comments

A recent decision of the Saskatchewan Court of Queen’s Bench highlights the importance of “going big or going home” when challenging a Will.

In the decision of Kot v. Kot, 2018 SKQB 338 (CanLII), an application to revoke probate and allow a will challenge to proceed by the spouse of the deceased was dismissed on the basis of a lack of credible evidence sufficient to raise a triable issue.

There, the deceased died on September 15, 2015. He died leaving a will dated August 4, 2014. In his will, the deceased appointed his spouse and two of his brothers as estate trustees. He gave one of his brothers a right of first refusal to purchase some of the deceased’s farm land upon his death.

Probate of the will was granted, and the three estate trustees proceeded to administer the estate.

The spouse then commenced her application to challenge the will. She said that the deceased tore up his will (actually, a copy of it: the spouse had switched the original will with a copy, and gave evidence that the deceased thought he was tearing up and therefore revoking the original). She said that she told the estate lawyer of the revocation, but the estate lawyer told her that it was better to have a will than no will, and that the estate lawyer did not tell her that if there was no will, she would inherit the entire estate. She also later alleged that the will was the result of undue influence from the brothers.

The court dismissed the spouse’s application.

The court held that the delay in seeking to challenge the validity of the will was not fatal to the application. However, while the delay did not defeat the application, it was a relevant consideration, and suggested that her claims had little credibility. Further, the evidence of the estate lawyer did not support her claim that the will was torn up by the deceased.

The court also found that there was no evidence of undue influence.

Interestingly, the court did not discuss the application of any limitation period. The court relied upon the Ontario Court of Appeal decision of Neuberger Estate v. York in concluding that mere delay did not preclude the challenge. However, in Neuberger, the will challenge was brought within the two year limitation period. In Kot, the challenge was brought 4 ½ years after the deceased’s death.

Have a great weekend.

Paul Trudelle

22 Feb

Not Love, Actually

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

As the last of the Valentine’s Day chocolate is being eaten, I write to raise some red flags relating to “romance scams”.

The US Embassy in Ghana has recently posted a warning about internet romance or friendship scams, particularly relating to correspondents purporting to be in Ghana.

The US Embassy has posted a list of “indicators” that may indicate a scam. These include:

  1. You met a friend/fiancé online.
  2. You have never met face to face.
  3. Your correspondent professed love at “warp speed”.
  4. Your friend/fiancé is plagued with medical or other life problems that require loans.
  5. You are promised repayment upon the inheritance of alluvial gold or gems (!).
  6. You have sent money for visas or plane tickets, but the person cannot seem to make it out of Ghana.
  7. When your correspondent does try to leave the country, he or she claims to have been in a car accident or is detained by immigration, and requires more money.
  8. Your correspondent consistently uses lower case “i’s” and/or grammar not in keeping with their supposed live station or education level.

Internet scams appear to be a growth industry. According to the 2017 Internet Crime Report of the FBI’s Internet Crime Complaint Center, they have received over 300,000 complaints in 2017. The value of victim losses in 2017 was $1.42 Billion!

 

Source: FBI IC3 2017 Internet Crime Report

The number and dollar value of the losses are higher amongst older victims. As a result, the US Justice Department announced a coordinated sweep of elder fraud cases under the “Elder Justice Initiative”. “The mission of the Elder Justice Initiative is to support and coordinate the Department’s enforcement and programmatic efforts to combat elder abuse, neglect and financial fraud and scams that target our nation’s seniors.”

Now, if only they can do something about that guy who keeps emailing me to say that he has hacked my computer, and asking me for $737 worth of bitcoins in exchange for not sending videos of me surfing the internet to all of my contacts.

Thanks for reading.

Paul Trudelle

15 Feb

Is It A Will? You Be the Judge

Paul Emile Trudelle Beneficiary Designations, Estate & Trust, Estate Planning, Power of Attorney, Trustees, Wills 0 Comments

The deceased left a will that divided his estate amongst his three children. The deceased also left the following note:

“Nov 3, 2014

The way I interpret any existing Will is Healy Lake is in 3 names Ken Ludlow Bob Ludlow Kathy Clubbe So on my demise they become the owners in joint tenancy & Susan is left out of Healy Lake property. However Susan shares any Cash available with Bob and Kathy on a one third basis. This should be changed so she gets cash up to the current value of Healy Lake Property, before the one third sharing should happen. Kenneth Robert Ludlow (wrote by hand) KRL

Must see Terry Fraser about his change   KRL”

Was the note a codicil?  The question was answered in the decision of Pattillo J. in Ludlow v. Clubbe, 2019 ONSC 941.

As a bit of background, the deceased, Ken Ludlow, had 4 children: Bob Ludlow, Kathy Clubbe and Susan Ludlow . He was estranged from the fourth child. At one point, the deceased had transferred his cottage to himself and his children Bob and Kathy. Susan was not but on title as she lived in B.C. and would not be able to enjoy the cottage. He later wanted to put the cottage in the names of himself and 3 of his children, including Susan. However, his son Bob did not agree to such a transfer.

The deceased discussed options with his lawyer (the “Terry Fraser” referred to in the note). One option discussed was to redo the deceased’s will, so as to provide for Susan, the child that was not on title to the cottage, with an equalizing bequest of cash.

The son argued that the note was not a testamentary document, but rather, simply the “musings” of the deceased with respect to potential changes to his will.

Justice Pattillo disagreed. He observed that “A holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to disposal of property on death. Further, the onus is on the moving party to show, by the contents of the paper or by extrinsic evidence that the paper is of that character and nature: Bennett v. Toronto General Trusts Corp.1958 CanLII 49 (SCC), [1958] S.C.R. 392 at para. 5.”

He went on to find that the note clearly established a testamentary intention on behalf of the deceased. Further, the note “has a formal manner to it” which supported the conclusion that the deceased intended it to be of a testamentary nature. Justice Pattillo referred the manner in which the note was signed (see extract of note, above). Further, the note was put in an envelope and was found amongst the deceased’s papers. “By formalizing it like he did and putting it in an envelope, I am satisfied that Mr. Ludlow considered that he had created a formal document which he intended to finally have dealt with resolving Susan’s earlier exclusion from the ownership of the Cottage.”

Interestingly, Justice Pattillo noted that the deceased’s handwritten note was intended to equalize the gifting by the deceased. However, the note actually provided for a greater benefit for Susan, the daughter who was not on title. It gave her a cash bequest equal to the full value of the cottage. As it turned out, this was not an issue as the cash value of the estate was roughly equal to 1/3 of the value of the cottage.

Thank you for reading.

Paul Trudelle

08 Feb

Substantial Compliance and Powers of Attorney

Paul Emile Trudelle Estate & Trust, Estate Planning, Power of Attorney, Trustees, Uncategorized, Wills 0 Comments

It is well established that in order for a will to be valid in Ontario, strict compliance with the process of execution must be followed. For example, a formal will with only one witness will not be valid.

However, this is not necessarily the case with a power of attorney. A power of attorney can be declared valid by court even if the formal requirements of execution are not followed.

Section. 10(4) of the Substitute Decisions Act provides that:

A continuing power of attorney that does not comply with subsections (1) and (2) is not effective, but the court may, on any person’s application, declare the continuing power of attorney to be effective if the court is satisfied that it is in the interests of the grantor or his or her dependants to do so.

(Subsection (1) provide that a continuing power of attorney shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness. Subsection (2) itemizes who may NOT be witnesses.)

Thus, if a power of attorney only has one witness, or is witnessed by a prohibited witness, the court may still declare that it is effective.

Another basis for finding a power of attorney valid even if the Ontario requirements for execution are not strictly complied with is under s. 85 of the Substitute Decisions Act. This section provides that a continuing power of attorney for property or a power of attorney for personal care is valid if at that time of its execution it complied with the internal law of the place where the power of attorney was executed, or where the grantor was domiciled or where the grantor then had his or her habitual residence.

Another possibility is to consider the validity of the power of attorney under the Powers of Attorney Act. See Jim Jacuta’s blog in this issue, here.

Thus, even if the requirements of due execution are not complied with, all may not be lost.

People discussing their Will

 

Thank you for reading.

Paul Trudelle

01 Feb

New Rules Regarding a Motion For Removal as Lawyer of Record

Paul Emile Trudelle Estate & Trust, Estate Planning, Trustees, Uncategorized, Wills Tags: , , 0 Comments

Effective January 1, 2019, new rules apply to a motion by a lawyer for removal as lawyer of record.

Under Rule 15.04 of the Rules of Civil Procedure, a lawyer may bring a motion to have him or herself removed as lawyer of record. The old Rule was silent on whether other parties to the litigation, other than the client, had to be served. Under the recent amendments, it is now clear that such a motion must be brought on notice to every other party. However, a motion record need not be served on every other party: just the notice of motion.

The new Rule goes on to provide that the lawyer making the motion shall ensure that any information in the notice of motion or motion record that is subject to solicitor-client privilege, or that may be prejudicial to the client, including the grounds for the motion, is redacted or omitted from the notice of motion that is served on the other parties, and from the motion record that is filed with the court. At the hearing, the lawyer is to provide the presiding judge with a complete and unredacted version of the notice of motion and motion record. This is to be returned to the lawyer after the hearing, and does not form part of the court file.

Under the new Rule, it is likely that the court will require greater detail as to the precise reason for the removal, rather than a general statement such as “breakdown in the solicitor-client relationship”. The new Rule allows the lawyer to set out the precise reason for the removal, without disclosing those reasons, at least to the other parties to the litigation.

A question, however, remains as to whether the lawyer can disclose solicitor-client communications, if only to the judge. Arguably, information subject to solicitor-client privilege should not be divulged to a judge, even in the context of a motion by a lawyer for removal

The amendment was the subject of comment in the decision of Solutions Construction Management v. 1971538 Ontario Inc., 2019 ONSC 503 (CanLII). There, the plaintiff brought a motion for summary judgment. The defendant’s lawyer had recently brought a motion to remove him or herself as lawyer of record, and the defendant therefore sought an adjournment. The adjournment was granted. The plaintiff had been served with the defendant’s lawyer’s motion. However, they did not attend at that motion or advise the court of the pending motion for summary judgment. The summary judgment judge, in adjourning the motion, stated that:

This matter is a cautionary tale as to the significance of the recent amendment to r. 15.04 of the Rules of Civil Procedure.  It may, in some circumstances, be necessary for litigants to respond to or, at a minimum, attend on the return of a motion by an opposing party’s lawyer for an order for removal from the record.  That step may be necessary to ensure that the court is (a) fully informed of the status of the litigation, and (b) given an opportunity to consider the potential prejudice to other parties if counsel for one party is removed as lawyer of record.

Thank you for reading.
Paul Trudelle

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