Author: Suzana Popovic-Montag
One steady source of estate litigation is the uncertainty around estate trustee compensation. There is no statutory formula for determining the appropriate quantum. Instead, estate trustees come up with a percentage that is supposed to reflect their contributions, and the beneficiaries are left with the options of accepting, objecting, and everything in between. If matters proceed to court, judges apply an age-old customary analysis in order to find a number that suits the unique circumstances of the estate administration. One of the five factors the courts look at is the size of the estate. Whereas traditionally bigger estates have led to bigger compensation, we have seen a potential turning point out in New Brunswick in the case of Atlantic Jewish Foundation v. Leventhal Estate,  N.S.S.C. 297.
Section 61 of the Trustee Act directs that estate trustees be paid “fair and reasonable allowance[s]” for their “care, pains and trouble”. Over time, courts have set the “tariff guideline” or customary rate at “2.5% of each of the capital receipts, capital disbursements, revenue receipts, and revenue disbursements” (Freeman Estate, Re,  O.J. 3402 at para. 30). This rate must be cross-checked, however, against the five factors, which look at the actual work done, before a final quantum is reached.
Size and Complexity
Historically, estate trustees have earned more in administering bountiful estates, and vice versa. The administration of a small yet convoluted estate has typically been far less lucrative than the administration of a large estate comprised of a handful of simple assets. Courts have, however, been ready to reduce compensation when an estate, despite its net value, involves little complexity – for instance, when the assets are easy to liquefy and distribute (see Forrest Estate v. O’Donohue,  O.J. 1898 (Gen. Div.) at para. 14).
A Deviation in New Brunswick
What is unique with the compensation reduction in Atlantic Jewish Foundation is that the estate trustee’s duties were not particularly simple. He managed the deceased’s hotel, sold it at a good price, oversaw numerous agents, and generally displayed skill and sophistication. Yet the court slashed his proposed compensation in half – a pronounced reduction – and did so not on the basis that the estate was simple, but that he should not receive remuneration that was tantamount to a “windfall or a bequest”. Certainly his case was not helped by the fact that the objector, and residuary beneficiary, was a charity, and that he was seeking $900,000 for 77 hours of work …
In the wake of this case, it will be interesting to see if other courts lessen compensation because the figure is merely too high, rather than applying percentages that coincide with the work done.
Thanks for reading,
Suzana Popovic-Montag and Devin McMurtry
The Substitute Decisions Act (the “SDA”) was passed in 1992. It governs what happens when a person becomes incapable of managing their own property or personal care. Under section 3 of the SDA, if the capacity of a person in a legal proceeding is in issue, the Public Guardian and Trustee (the “PGT”) may arrange for the legal representation of that person. Section 3 also provides that the person shall be deemed to have the capacity to retain and instruct counsel.
Although section 3 seems to be fairly straightforward, the details surrounding the appointment and position of section 3 counsel are somewhat obscure. Cases such as Sylvester v Britton and Banton v Banton have added some clarity to the role of section 3 counsel. The recent case of Kwok v Kwok provides a further illustration as to when section 3 counsel is to be appointed.
In Kwok v Kwok, Jiefu Kwok was involved in two motor vehicle accidents in 2011. He suffered a traumatic brain injury as a result and commenced two legal actions in relation to the accidents. A capacity assessment was conducted in 2014, which revealed that Jiefu was incapable of taking care of himself and managing his own property. In 2015, Jiefu’s son, Derek, was appointed as his guardian for property and personal care. Derek later filed an application to be released from these roles as he stated that it was putting a strain on his relationship with his father. Derek’s mother, Ellie, brought an application to take Derek’s place and be appointed as Jiefu’s guardian of property and personal care.
The PGT took the position that section 3 counsel should be appointed to represent Jiefu and obtain his wishes before Ellie was appointed as Jiefu’s guardian of property and personal care. The PGT was of the view that Jiefu’s capacity assessment conducted in 2014 was outdated and that a more limited guardianship might be appropriate for him.
Counsel for Derek and Ellie (the “Applicants”) argued that section 3 counsel is to be used in cases where a capacity assessment has not already been conducted. They added that, since a capacity assessment was already conducted in this case, the appointment of section 3 counsel was inappropriate. Moreover, a primary concern for the Applicants was the high costs associated with the appointment of section 3 counsel.
The Court considered the arguments of the PGT and the Applicants and noted the following about the role of section 3 counsel:
- The appointment of section 3 counsel is a safeguard that protects the dignity, privacy and legal rights of a person who is alleged to be incapable
- Section 3 of the SDA does not make the appointment of legal representation mandatory
- In deciding whether to appoint section 3 counsel, the Court must consider the specific facts and issues in each case
- The Court can appoint section 3 counsel even in cases where a capacity assessment has already been conducted or where there is an existing Court order declaring that a person is incapable
The Court concluded that the appointment of section 3 counsel would not be in Jiefu’s best interests and would be a waste of resources. The Court made this finding based on the following reasons:
- There were no completing claims amongst Jiefu’s closest relatives as to who should be his legal representative. Both Derek and Ellie supported the appointment of Ellie as Jiefu’s guardian of property and personal care
- There was no evidentiary basis to question the validity of the 2014 capacity assessment
- A letter from Jiefu’s primary care physician regarding his current condition did not suggest that Jiefu’s condition had improved
- Jiefu attended Court and expressed that he supported the appointment of Ellie as his guardian of property and personal care
As a result, Derek was released from his role as Jiefu’s guardian for property and of the person and Ellie was appointed in his place.
Kwok v Kwok adds to a growing body of cases examining the role of section 3 counsel. It provides that the Court can appoint section 3 counsel even in cases where a capacity assessment has already been conducted or where there is an existing Court order declaring that a person is incapable. Furthermore, it indicates that the wishes of the incapable person are to be given a considerable amount of weight in assessing whether section 3 counsel is appropriate.
For further reading on section 3 counsel, check out these other blogs:
Thanks for reading – have a great day!
Suzana Popovic-Montag and Celine Dookie
The mysterious death of Jeffrey Epstein is generating a hubbub across the world. It reads like the beginning of an Agatha Christie detective novel and has a central figure who is reminiscent of a James Bond villain: a wealthy financier who is accused of operating a pedophilic sex trafficking ring. He has connections with scores of famous people: politicians, celebrities, royalty … In the early stages of his prosecution, he attempts to commit suicide; then, shortly afterwards, he is taken off suicide watch, the guards purportedly sleep through their checkups on him, and he is found dead.
In the aftermath, there have been conspiracy theories and much controversy, including an FBI investigation. The case has also prompted some questions regarding succession law, for it has just been reported that Epstein signed a new Will two days prior to his death. For the purposes of this post, we shall posit what would happen to the Will and the estate if this had all occurred in Ontario.
Validity of the Will
If Epstein indeed committed suicide, his suicidal mind would be considered in determining whether he had testamentary capacity, but it would not be conclusive (Topp Estate, 1983 CanLII 2329 (SKSU)). The applicable test is still the contextual factors set out in Banks v. Goodfellow.
If it comes to light that Epstein was murdered, then the Will could be attacked on the basis of undue influence. To achieve this, the objector would have to meet a fairly high evidentiary threshold, establishing “that what appears to be the testator’s will is not his or her will” (Kozak Estate (Re), 2018 ABQB 185).
As Epstein’s brother is named the sole beneficiary of the estate, if he is found to have murdered his brother, then public policy would likely bar him from benefiting from the estate (Papasotiriou, 2012 ONSC 6473).
It has been reported that the alleged victims’ lawyers are seeking to continue their action against the Epstein estate. One of these lawyers, Lisa Bloom, is demanding a freeze of the assets in the meantime. In Ontario, if the deceased dies during the time in which he or she is a defendant in litigation, Rule 11.02 of the Rules of Civil Procedure may allow for an action to be continued against the deceased’s estate.
If the alleged victims win their lawsuit against the Epstein estate, it is uncertain whether they will obtain their damages awards, for Epstein likely sheltered many of his assets. In Ontario, the claimants could launch claims of unjust enrichment and constructive trust in order to gain access to funds which have been sheltered amongst Epstein’s friends, family, and offshore accounts. Sadly for the accusers, the same dark cunning which enabled Epstein to evade justice was likely employed in securing his assets in inaccessible vaults. Just a little something to think about.
Thank you for reading … Have a great day,
Suzana Popovic-Montag and Devin McMurtry
Comedian Steve Martin’s 1977 “Let’s Get Small” album foreshadows a lot of what’s been happening in our world recently.
While Martin used the phrase “let’s get small” literally (you take a drug and shrink, rather than “get high”), our world is getting smaller in other ways, only with technology, not drugs.
Our shrinking footprint
Think of the ways that technology has shrunk our world. How many paper files do we need today? How many books? A friend toured the “new look” U of T law school recently and couldn’t believe how small and sparse the offices were for professors. The reason? You don’t need space for shelves full of books and papers anymore.
Look at the trend in condominiums – smaller, smarter, more efficient. We simply don’t need (or value) as much “stuff” – china plates, workrooms, desk space, huge freezers. I cleaned out a small office in our home recently, and took to recycling a satellite receiver, a printer, an old laptop, a DVD player and more cords than you could imagine. I hadn’t used most of it in years, and seeing the clean empty space in the office was extremely satisfying. Less is more sometimes.
A timely trend
With all of the concerns about environment footprints, the fact that we can “get small” much easier today than in the past is a huge positive. We can build laneway housing, take Ubers or use auto shares instead of owning a car – and we don’t need to print mountains of paper when electronic files are faster, simpler and far more desirable. Much of our life truly “lives” on the phone in our front or back pocket. And that doesn’t take up much space.
I’m not recommending a “get small” theme for environmental reasons though (that’s an added bonus). I’m recommending it because it can lead to a simpler and more satisfying life. Instead of thinking “what can I get”, the focus becomes “what can I get rid of.” It doesn’t have to be extreme. Every so often, you eliminate one thing you plug in, or gas up, or store away. Bigger steps might include downsizing a home or going from two cars to one.
This article in Forbes.com – Ten Hacks for Simplifying Your Life – suggests going beyond the downsizing of possessions to include downsizing toxic people in your life, onerous debt, and personal grudges, amongst other things.
Give the article a read – and consider what getting small could mean for your life.
Have a great day, and thanks for reading.
Cars have never been a huge focus for me (more of a necessity than a passion) but, at my husband’s insistence, we do go to the Canadian Auto Show in Toronto every four or five years to look at the new models and think through possible future purchases.
When we went several years ago, every manufacturer seemed to have a display centred on electric cars. This was the way of the future, clearly. You couldn’t miss it.
But something seems to have happened. When we went this year, while there were lots of electric cars on display, there was little of the hype from just a few years earlier. And the word we saw more of was something I don’t even remember seeing last time: hydrogen.
Are we almost post-electric?
Did I just wake up and miss the news about electric cars NOT being the next big automotive technology? It seems I might have. I stumbled across this Jim Kenzie review in the Toronto Star comparing a Hyundai electric car versus one of its hydrogen fuel cell cars. Check out what he had to say about the future.
Hyundai … knows as any thinking person does that gasoline will continue to be by far the dominant player for at least another half-century …
Hyundai also understands that battery-powered vehicles will never be more than bit players — again, where are we supposed to get enough electricity to replace all the gasoline we burn?
Simply, we never will.
Battery-powered electrics will mainly be a bridge to the obvious medium-to-long-term solution, which of course is hydrogen-fuel-cell electrics.
You can read the full review here.
Hydrogen may lead
It seems that many in the automotive industry agree with Jim Kenzie. Despite Elon Musk’s view that hydrogen fuel cells are “mind-bogglingly stupid”, a 2017 survey of 1,000 global auto executives concluded hydrogen fuel cell technology will ultimately outperform battery-powered electric vehicles.
A key reason? You can fill up a hydrogen-powered car in five minutes (the same as today’s gas), but electric cars can take hours.
In today’s society, new technologies are constantly being developed and trends are forever changing. It’s important to keep this in mind when contemplating estate plans and future financial investments – what appears to be the “next big thing” one year may be forgotten the next.
My conclusions from all of this are simple. My electric car guilt is now gone. I’m not going to line up for a Tesla or stress about the fact that I haven’t gone electric. Instead, I’ll look for other ways to reduce my automotive carbon footprint – and keep my eye on how hydrogen fuel cells are evolving.
Thanks for reading!
Smartphones have disrupted a lot of old school technology – the humble alarm clock being one of them. Few people under 30 own an alarm clock, and I’m sure many don’t even know what an alarm clock is.
Even for the over-30 set, a lot of us rely on our phone to wake up. But is it the best way? The alarm clock was a specialist device – it told time and woke us up. That’s it. Our phones are generalist devices. While they can do a lot of things, they may not do each task as well as a specific device made for a specific purpose. That’s why many people still buy cameras, and calculators, and stopwatches, even though their phones can do all of those tasks.
Here’s the thing about alarm clocks: they’ve come a long way. And many of these innovations could be a big improvement over using the alarm function on your phone. Take a look at these two innovative approaches to alarm clocks that could change your mind about your phone alarm:
Ruggie – no more snooze
The MIT Technology Review quotes a study that found that Americans spend 3.5 months of their lives hitting the snooze button. Since studies have shown that our snooze button habit actually hurts us more than helps us, snoozing is truly wasted time that negatively impacts our lives.
Enter the Ruggie, an alarm rug that only turns off when you get up and stand on it for several seconds. It forces you out of bed and keeps you up. Kiss the snooze button goodbye!
See the light
The sound of an alarm can be jarring, even for good-natured morning people. So here’s a twist: an alarm – the Philips Wake-up Light – that uses a combination of light and sound to wake you up. The light begins with soft dawn red before moving to orange and then yellow. And it starts 30 minutes before your actual wake up time, so you can ease gradually into wakefulness.
Other innovative approaches
This recent article on the Digital Trends site has several other “alternative” alarm clocks. Check them out – there may be one that wakes you up in a whole new way!
Enjoy your day!
Recent guidance from Ontario’s Ministry of Finance is helpful to estate lawyers looking to minimize probate-related expenses through multiple wills, says Toronto trusts and estates lawyer Suzana Popovic-Montag.
In 2014, just before a provincial election, the Ontario government (then Liberal) announced that a high-speed rail line would be built within 10 years, linking downtown Toronto, Pearson airport, Kitchener, and London.
As the CBC so adeptly noted later, the high-speed rail project soon “slowed to choo-choo speed.” But that didn’t stop the promises. In May of 2017, that same Liberal government announced that the high-speed rail project would be extended to Windsor.
It all sounded great, except there was no sign of action. We hit 2019 – five years into the “built within 10 years” promise – and not a single railway tie had been laid. And then the inevitable happened – the new Conservative government announced that all funding for the high-speed rail had been “paused.”
The downside of democracy
I like our democratic system, but the glacial pace of building key infrastructure projects highlights a huge downside. Politicians make quick headline-grabbing promises to get elected, they delay those promises once elected, and then the promises are cancelled when a new party comes to power.
The result? Nothing gets done, not even little improvements to what we already have. And this isn’t just an Ontario issue – it’s Canada-wide and often occurs when municipal, provincial and federal governments intersect on projects.
I would love to see a national Canadian transportation super-agency, staffed by smart people making good non-political transit decisions, and with the power and money to make projects happen.
But that’s unlikely to happen soon. As an alternative, I propose the Chinese model. Decree that projects be built, then build them fast. Anyone who’s been to Shanghai recently knows how quickly things can get built.
And back to trains for a moment. This one-minute, time-lapsed video shows how 1,500 Chinese workers built the railway tracks for an entire train station in just 9 hours.
Now that’s the way to get things done!
Thanks for reading … Have a great day,
We wrote several months ago about the declining value of household furniture and other items – especially antiques that were highly desired decades ago.
The general rule if you’re selling home assets (typically in an estate or when moving into a retirement home situation) is that you won’t get as much as you think. Tastes change (grandfather clock anyone?), artists fall out of favour (or never gain much market value) and items fall into disrepair. And you usually have to pay a firm to come in and assess and sell the contents. It may not leave you with much.
Mind the small stuff
What can often get overlooked in content sales is the little stuff. We all bring our personal biases when assessing what’s junk and what could be a little treasure. If you see a figurine or small carving and don’t like it, you’ll assume that others won’t like it either. Under the weight of all the other junk you have to dispose of, the item can end up in the trash.
That can be a costly mistake. I was recently visiting an estate home being prepared for sale, and the daughter of the deceased pointed to a small ceramic cat at the end of the mantle. It was, to me, nothing much of note. It was about 2 inches high and 3 inches long and had stripes. I wouldn’t have thought twice about trashing it if I was clearing out the house.
That’s what the daughter thought too, until they had a friend over who identified the cat as an original ceramic piece by Swedish artist Lisa Larson. What was going to end up in the trash was actually a small sculpture worth hundreds of dollars. Oops …
Be mindful of the art-savvy owner
If a homeowner had a good eye for art during their lifetime, there’s a good chance that even small knick-knacks were bought with purpose and could have value. So, before you clear the little stuff off the mantle of someone’s home, it may pay to have an art-savvy friend tour the house just in case.
Thanks for reading – enjoy your day,
Tracing your ancestry is big business these days. According to Ancestry.com, the company and its worldwide affiliates have 3 million paid subscribers and have collected 15 million DNA samples from individuals.
Everyone seems to know someone with a story, some happy, some disturbing. Some people discover a 1st cousin and reconnect with them (good news)! Others find out they have a half-sister they never knew about (oops)!
It can get more disturbing than that. Police have used the DNA collected by ancestry websites to narrow down suspects in murder investigations. That’s how the Golden State Killer was arrested in 2018 for rapes and murders committed 30 to 40 years previously. It’s quite the story. The killer’s relatives clearly did him no good service by happily submitting their DNA.
Using ancestry to expand your horizons
One way that we might want to use our ancestry is verifying our roots and exploring opportunities for citizenship in another country. Many Canadians already enjoy dual citizenship because they or their parents were born outside of Canada. But many do not. And there can be advantages, including the ability to travel and work there, own property, or receive health care.
One example: if you have a grandparent who was born in the Republic of Ireland, you likely qualify for Irish citizenship, which would also make you an EU citizen with all of those privileges.
The rules differ by country, and the application process is undoubtedly thorough and time-consuming, even if you are clearly eligible. But if the potential advantages are appealing, dual citizenship might be an idea worth exploring.
Weigh any downside as well
Of course, you’ll need to look at the potential disadvantages as well (for example, there may be tax obligations you hadn’t counted on). This blog post has some good tips on the practicalities of carrying two passports, but also a quick pros and cons list of holding citizenship in two countries.
Thanks for reading … Have a great day,