Author: Paul Emile 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

25 Jan

Violence in Ontario’s Nursing Homes

Paul Emile Trudelle Elder Law, Estate & Trust, Estate Planning, Health / Medical, Uncategorized Tags: 0 Comments

Ontario’s nursing homes can be a very violent place.

According to a report of public health watchdog, Ontario Health Coalition, reported incidents of resident-on-resident abuse doubled from 1,580 incidents in 2011 to 3,238 in 2016. At least 29 residents were killed by fellow residents in the past 6 years. Those numbers may be under-reported. In addition, a number of deaths have been noted that are not deemed homicides, but occur shortly after an incident of violence.

The numbers are particularly significant, considering that there are less than 80,000 people living in long-term care in Ontario.

Incidents usually involve at least one patient with dementia. Symptoms of dementia can often include aggression.

The report does not address staff-on-resident abuse. According to a CBC Martetplace investigation, an average of 6 seniors are abused by their caregiver every day. In 2016, there were 2,198 reported incidents of staff-on-resident abuse.

According to Natalie Mehra, Executive Director of Ontario Health Coalition, “It’s a level of violence that would be unacceptable anywhere in our society and certainly should not be tolerated for the frail and vulnerable elderly. Her organization encourages increased staffing levels and training. “We don’t think it’s in the public interest to scare people away from long-term care. We think that it’s in the public interest that this has to be exposed so it can be dealt with and fixed.”

 

 

Have a great weekend.

Paul Trudelle

18 Jan

The Often Problematic Issue of Cash in a Safety Deposit Box

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

Cash in a safety deposit box (“SDB”) often poses a problem. As there are rarely records as to what was in the SDB, disputes can arise as to how much money was there, and what happened to it.

The Newfoundland and Labrador Court of Appeal decision in Temple v. Peddle, 2019 NLCA 2 (CanLII) illustrates this problem. There, mom set up a SDB, jointly held with her son, Leo. Leo testified that mom had $50,000 in the SDB. Later, another son, Wendell, accessed the SDB with mom present, and removed cash and deposited it in another SDB. Wendell gave evidence that the amount removed was $30,000. Subsequently, Leo, as mom’s guardian, sued Wendell for the return of the difference, being $20,000.

The Court and the Court of Appeal had to grapple with competing evidence as to the amount in the SDB: Leo said that there was $50,000, and Wendell said that there was only $30,000. The court agreed with Leo, and the Court of Appeal upheld the lower court’s decision.

The matter came down to credibility. The lower court reviewed the evidence in detail, and found that Leo’s story was more credible than Wendell’s. When Leo attended to open the SDB with mom, Leo’s common-law spouse attended with them. She gave evidence that the SDB contained $50,000. When Wendell attended with mom, mom’s caregiver was apparently present when the money was counted. However, she did not give evidence.

In deciding the case, the Court of Appeal reviewed the standard of proof required in such cases. The Court of Appeal confirmed that the standard of proof in civil cases is proof on a balance of probabilities: there is no “sliding scale”, such as a requirement of proof to a high degree of probability.

We often see these types of claims. They can apply to cash in an SDB, or under a mattress. These claims are hard to prove or defend.

Clients should be cautioned that undocumented cash, wherever kept, is hard to account for. Disputes can easily arise, where one party claims it is more than what is claimed by another party.

For an earlier discussion of a case where the allegation was that the deceased had a box of money in his house containing $210,000, but only $96,000 was found in a sock, see my blog, The Perils of Keeping Money Under the Mattress, here.

 

 

Have a great weekend.

Paul Trudelle

11 Jan

Friends: The One About Mount Pleasant Cemetery

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

A recent decision of Justice Dunphy recounts the wonderful history of Toronto’s cemeteries which ultimately grew into the Mount Pleasant Group of Cemeteries.

The decision begins at the beginning:

Forty-one years before Canada was launched as a nation and six years before the City of Toronto was incorporated, Thomas Carfrae the younger, Peter McPhail and a number of other inhabitants of what was then known as the Town of York brought a petition to the Legislative Council of Upper Canada. York’s population had surged after the War of 1812. It was approaching 2,000 and was still growing. However, it had only a Catholic and an Anglican cemetery while people of all faiths were arriving daily. They had passed the hat at a number of public meetings and raised $300 – a sum of money sufficient to purchase six acres of land a mile outside of town at the northwest corner of Yonge and Bloor. Their goal: to purchase the land and hold it for the purpose of a “general burying ground, as well for strangers as for the inhabitants of the town, of whatever sect or denomination they may be”. They judged that due to the recent rapid growth of the town “and the small portions of ground … allotted for the purpose of cemeteries”, there was a need.

They judged correctly. Their petition to the Legislative Council of Upper Canada found favour and a statute named “An act to authorize certain persons therein named, and their successors, to hold certain lands for the purposes therein mentioned” was duly passed and received Royal Assent in 1826:  Acts of U.C. 7 Geo. IV, c. 21. The land that came to be known as “Potters Field” was purchased and started operation as a cemetery soon afterwards.

The cemetery group became known as the Mount Pleasant Group of Cemeteries. It has grown to include 10 cemeteries, 4 crematoria, 14 mausoleums and 5 visitation centres on 1,222 acres of land containing the resting place of 600,000. The Mount Pleasant location arboretum is said to be “one of the finest tree collections in North America”. “Practically every tree that will grow in this climate is found here.”

The decision, Friends of Toronto Public Cemeteries Inc. v. Mount Pleasant Group of Cemeteries, 2018 ONSC 7711 (CanLII), relates to the current management of the cemeteries. Ultimately, Justice Dunphy found that the current trustees of the Mount Pleasant Group of Cemeteries were not appointed in accordance with the 1826 Act. He also found that some of the operations of Mount Pleasant Group of Cemeteries went beyond the scope of the statutory trust.

For a video account of the beginnings of Mount Pleasant Group of Cemeteries, click here.

For information about the Friends of Toronto Public Cemeteries, click here.

Thank you for reading.
Paul Trudelle

28 Dec

Happy New Year! And Be Careful!!

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

The end of 2018 is fast approaching. 2019 will soon be upon us. I wish you health and happiness for the new year.

And by all means, get past New Year’s Day!

A 2010 study done at the University of California found that deaths spike in the two weeks around Christmas and New Year’s Day, with January 1 being the day of the year with the highest number of deaths from natural causes.

In the study, researchers looked at death certificates issued in the US over a 25 year period. This study differed from other studies that looked at deaths from self-harm, accidents and homicide in that it looked at deaths relating to natural causes, such as illness and old age.

Researchers found that 5% more people die on January 1 from natural causes than any other day.

Christmas and New Year as risk factors for death, D. Phillips, G. Barker and K. Brewer, Social Science and Medicine 71 (2010) 1463

No empirical reason for this trend is given in the study. However, several possible explanations are set out. These include:

  1. Increased psychological stress;
  2. Overcrowded [or perhaps understaffed] hospitals during the holiday season;
  3. Terminally ill patients may choose to be home and out of the hospital during the holiday season;
  4. Increased travel;
  5. People may be able to postpone death briefly in order to reach symbolic occasions;

Other theories are presented but dismissed as implausible or unlikely.

Another theory is that people postpone going to the hospital around the holidays because they want to be with their family. This can be dangerous. As reported in the Independent, “if you’ve got pains in your chest, don’t say I’m going to wait until after the holidays to get it looked at”.

 

 

Have a very happy, safe and healthy New Year’s Day, and new year!

Paul Trudelle

21 Dec

Santa Claus is Comin’ to Town, and He Has Lawyered Up!

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

In 1934, Fred Coots co-wrote “Santa Claus is Comin’ to Town” with lyricist Haven Gillespie. The song went on to be one of the highest money-making songs of all time (so far). It has been performed by over 200 artists, including, most notably, Bruce Springsteen. The song is the basis for the 1970’s classic Christmas special of the same name.

Fred Coots died on April 8, 1985. Haven Gillespie died in 1975.

In 2015, after an eight year battle, the U.S. Second Circuit Court of Appeals held that the music rights should revert to the heirs of the Coots estate. They were previously sold to a musical publishing company. However, under U.S. copyright laws, songwriters have the right to terminate publishing contracts in certain circumstances. The Court of Appeal found that Coots had effectively given notice of the termination of the copyright, and that the copyright therefore would revert to the Coots heirs in 2016.

A similar lawsuit was commenced by the Gillespie family in 2017. The family sued the music publisher Memory Lane Music for royalties claimed to be owing to the Gillespie estate.

 

 

Happy Holidays.

Paul Trudelle

14 Dec

Interim Support and Equalization Claims

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

In the recent decision of Charles v. Charles Estate, 2018 ONSC 7327, the court discussed the interplay between a claim for interim support, and claims for equalization.

There, the Applicant was the deceased’s spouse of 22 years. There was some evidence that the Applicant and the deceased may have been separated prior to the deceased’s death.

Fifteen days before the deceased died, the deceased severed the joint tenancy on the matrimonial home and other properties, transferred certain properties to his son, liquidated various RRSPs, and drew money on a line of credit secured by the matrimonial home. He also changed his will to significantly reduce the bequests to the Applicant.

The Applicant commenced proceedings for an equalization under the Family Law Act, and to set aside various transactions entered into by the deceased just prior to his death. She also commenced a claim for dependant support.

In the court decision, the court addressed the Applicant’s claim for interim support.

In deciding whether to award interim support, the court considered whether the Applicant was in need of and entitled to support. Relying on the decision of Perkovic v. Marion Estate, 2008 CanLII 52315, the court stated that the test was:

  1. whether the claimant falls within a “qualifying relationship” under the Succession Law Reform Act;
  2. whether the deceased was providing support or was under a legal obligation to provide support immediately before his death;
  3. whether the deceased did not make adequate provision for the claimant’s support.

The burden is on the Applicant to satisfy each of the three elements necessary to obtain an order for interim support on an arguable or prima facie basis.

In Charles, the court found that the Applicant was not in need of support. She earned more income than the deceased, and was the primary provider for the household. There was no evidence that the economic circumstances of the Applicant had worsened to any significant extent since the date of death.

The court did, however, order that the estate pay the interest on the line of credit incurred by the deceased.

In concluding, the court stated that the Applicant’s claim for interim support was “conflated with her property based claims”. Those claims would continue. However, they did not entitle the Applicant to claim interim support. The court did not comment on the merits of such claims.

Thank you for reading.

Paul Trudelle

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