I’ll be honest – there are some things in life that I:
- don’t understand, and
- drive me nuts.
I’m not looking for answers – I don’t really care about the reasons “why.” What I want is to make these things go away. No explanations please – if I was interested in the why, I’d google it to find out.
So, here’s my rant. Five everyday things I don’t understand that I wish would go away:
- Please use revolving door: I’ve opened doors all my life, and there are many perfectly good doors to any office building. But all signs direct you to the revolving door, even if you have to line up to use it, and it takes twice the time to get inside. Don’t stick “emergency door” on a perfectly good and useable door. Give us a choice!
- Put your phone in airplane mode: I’ve left my phone inadvertently in “full on” mode countless times when taking flights. Why do we still have to do this? It’s clearly not a safety risk, or else we’d all be dead by now due to countless passengers ignoring the request. I don’t want to know why they ask us. I just want to stop being told to do it.
- No pass back on Presto card: I load my Toronto Transit Commission Presto card. It deducts cash every time I tap and enter a station or vehicle. I pass the card to my friend on the other side of the turnstile to tap, and it denies the tap. Why? Because you can’t pass back the Presto card. I’ve done this in New York with family dozens of times. With so many riders scamming the system by not paying, why won’t the TTC let me pay for someone else?
- Hospital gowns that tie in the back: I go for my annual physical. I’m told to strip down, and the blue gown I’m given ties in the back. It’s awkward, and I can barely make it work. My housecoat doesn’t tie in the back, why should a medical gown? The doctor is going to look at me front and back anyway – there’s no hiding. I’m tired of sitting with my bare butt on a chair because I can’t wear a hospital gown properly.
- Upsells at a car wash: I’m at a car wash. I’m given three choices: regular wash, luxury wash, or “the works.” The upper end washes promise things like “bottom blaster” and “polish”. Can anyone tell the difference? And yet, I often choose “the works” because I want my car to have every chance at a completely clean beginning. But I feel cheated every time. Give me one wash and one choice.
If you know why these things happen, you should probably keep the information to yourself. If you know how to make these things go away, please call me immediately. In the meantime, I’ll end my rant and head back to work.
Thanks for reading … Have a wonderful (and rant-free) day!
This week on Hull and Estate, Natalia Angelini and Sydney Osmar discuss Dale v Prentice, in which the Ontario Superior Court of Justice addresses whether a drafting solicitor can represent the estate in a will challenge.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
The use of artificial intelligence (“AI”) is saturating all facets of life and death. While we might often think of AI as some future product of a technologically advanced society, it is already in common use. Think of Apple’s Siri and Google Translate; both require AI in order to function.
Earlier this year, my colleague, Garrett Horrocks, blogged on a study showing the promising use of AI in detecting Alzheimer’s. This month, a recent study out from the University of Nottingham explores the use of AI in predicting premature death of middle-aged persons. The study shows promising results.
AI and Bias
While many reports are optimistic in how such predictive models can improve preventative health care, others are more cautious. A recent article from Wired raises the issue of potential bias in such AI models. The article delves into the concerns of scholars that AI might adopt and even promote bias as a result of implicit biases that already exist. Take, for example, the Amazon AI recruitment tool which was designed to review resumes of job applicants and pick the top candidates. Amazon abandoned the project after experiencing several issues, including the program explicitly discriminating against women. The program did so by penalizing candidates who graduated from women’s colleges or had the word “women’s” in their resume (e.g. “women’s chess club”).
The Wired article also raises concerns about existing biases in health care services, such as how patients of different ethnics groups are treated differently for pain with studies in the US finding that racial and ethnic minorities tend to be undertreated for pain, compared to non-Hispanic white persons. While the Wired article raises concerns about the potential biases that can be adopted and/or promoted by AI, the article also notes the potential for AI to reduce bias by focusing on objective factors affecting a person’s health.
AI and the Law
Many say that the law and lawyers are resistant to change (who still relies on faxes?). Despite any such resistance, the legal system, like everyone else, is being dragged into the world of AI, whether ready or not. Just as AI is revolutionizing health care, legal products implementing AI are being developed, with some estimating that over 100,000 jobs in the legal sector will be automated by 2036.
More importantly, however, is the ongoing need for the law to adapt to the changing world of AI. The implementation of AI in our everyday life has significant ramifications from the products recommended to us while online shopping to whether or not we might receive proper preventative health care. With the potential for ethical abuses and unintended consequences (such as discrimination), it will be interesting to see how (or if) laws and regulations develop to address these new advances in AI.
Thanks for reading!
Ante-Mortem Probate, or Pre-Death Probate, is a process of probate which validates the Will of a testator during his or her lifetime and may be particularly useful for testators who fear that their Will may be subject to a challenge following their death.
Various models of Ante-Mortem Probate have been explored in the past by American scholars and include the following proposed models:
- The “Contest Model”, reviewed by Professor Howard Fink, is where each of the beneficiaries are identified, including those that would benefit on an intestacy and the testator essentially becomes the moving party in his or her own suit against all possible beneficiaries of his or her Estate. [Antemortem Probate Revisited: Can an Idea Have a Life After Death? (1976) 37 Ohio St LJ 264]
- The “Conservatorship Model”, explored by Professor John H. Langbein, is where the testator is required to apply to the Court in a manner similar to the “Contest Model”, however, instead of each of the specific beneficiaries being involved, a Guardian Ad Litem (Conservator) represents the interest of all potential beneficiaries, including any unborn or unascertained beneficiaries. [Living Probate: the Conservatorship Model (1980)]
- The “Administrative Model”, set out by Professor Gregory S. Alexander and Albert M. Pearson is neither judicial nor adversarial. There is no requirement of notice to the beneficiaries or in fact “interested parties” as one of the significant concerns with the other models of Ante-Mortem Probate is the confidentiality of the testator. [Alternative Models of Antemortem Probate and Procedural Process Limitations on Succession (1979-1980) 78 Mich L Rev 89]
Only certain American States allow Ante-Mortem Probate, whereas Canada does not have any provinces or territories with a similar arrangement.
Given the number of suits that are commenced following the death of testators across Canada, such an arrangement could be beneficial in that at the very least, a testator who expects that there will be a challenge to his or her Estate plan could take an active part in adjudicating whether his or her Will is indeed, valid.
Considering the complicated familial arrangements that are often present in our society today, perhaps addressing challenges of things like capacity of the testator, undue influence or the presence of suspicious circumstances would make more sense before the testator’s death. This is particularly an issue where a testator’s capacity had been in question for a while and the Will being challenged was executed a decade or more before death.
There are, of course, certain potential negative effects of any Ante-Mortem Probate regime, particularly the possibility that it would encourage litigation that would not otherwise arise, following the death of the testator.
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A recent decision of the Ontario Superior Court of Justice considered an interesting question of fact and law. Will challenges in Ontario are ordinarily grounded on the basis that a testator lacked testamentary capacity, did not know and approve of the contents, or that the Will was procured by undue influence. In Cavanagh et al v Sutherland et al, however, the applicant sought to challenge the validity of her mother’s will on novel grounds; namely, that it was procured as a result of a mistake of fact.
The testator died in July 2016, leaving a Will benefiting 5 of her 6 daughters. The Will expressly excluded her sixth daughter, Carolynn, from sharing in the Estate. Carolynn objected to the issuance of a certificate of appointment on the basis that her mother lacked capacity or that the Will was procured by undue influence.
The estate trustees brought a motion for summary judgment seeking an order dismissing Carolynn’s objection and a declaration that the Will was their mother’s valid Last Will and Testament. At the hearing of the motion, Carolynn changed her position and chose instead to focus primarily on her belief that her mother had been operating on a set of mistaken facts.
Carolynn referred to a payment of $65,000 made to her by her parents in or about 2011, prior to the execution of an earlier will that also excluded Carolynn. She took the position that this payment was made in satisfaction of a loan to her father years earlier that her mother knew nothing about. Carolynn argued that her mother likely believed this payment was a gift to Carolynn in lieu of her inheritance and, accordingly, left her no benefit under the Will.
The court found that the evidence held otherwise. Notably, the evidence showed that the payment was not made in satisfaction of a loan, but rather as a result of a demand by Carolynn. In 1996, her parents had agreed to place her on title to a property to assist them in obtaining a mortgage. The mortgage was subsequently paid off in 2011, at which point Carolynn’s parents asked that she transfer her interest in the property back to them.
The evidence showed that Carolynn refused, instead asserting that there was always an intention that she remain on title to the property as legal owner. Carolynn’s parents ultimately offered to buy out her interest in the property in exchange for a payment of $65,000. Her mother later advised the lawyer who prepared the Will that this was to constitute Carolynn’s inheritance. It was clear to the court that the testator had considered this payment when the Will was drafted.
In the end, the evidence was such the court did not have to consider the effect of a true mistake of fact on the validity of a Will. However, the question of a mistake of fact would ordinarily tie into knowledge and approval and, specifically, whether the mistake was sufficient to negate the validity of the Will. In this case, it was apparent that the testator had turned her mind to the payment to Carolynn, and there was no question of a lack of knowledge and approval.
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It’s a near universal experience. Almost everyone over age 50 understands the rather uncomfortable, humble experience of the colonoscopy. For me, it wasn’t the worst experience in the world, but when I had my introduction to this procedure many years ago, I remember being delighted to hear that by the time my next one was due, they would likely have an entirely new “non-invasive” procedure in place.
For example, this “camera pill”.
Or these, which include a “virtual colonoscopy” or “at-home stool tests.”
With the profit-driven U.S. health care system just south of us, and the general hatred of the colonoscopy procedure, I knew I’d be in the clear. Bottom line (couldn’t resist that pun) – I’d never have to go through the procedure again.
So, what happened to innovation?
My, how time flies – I’m due for another colon check, but it appears that medical advancements haven’t flown quite as fast. What procedure did my doctor recommend for testing? A colonoscopy of course. Same clinic, same specialist, same 1.5 days of awful prep.
Need I say it? They can put someone on the moon, but they can’t figure out a way to check for colon polyps without a long tube going where you don’t want it to. At this rate, I think we’ll have cities on Mars before I can avoid the indignity of “now, just relax; you’ll feel some pressure, but it shouldn’t be too uncomfortable.”
Think of the positives
I do need to keep the many benefits of our health care system in mind. We live in a country that routinely checks us for common cancers – at no out-of-pocket cost. And let’s face it, not eating for two days highlights the hunger that many people experience daily. So yes, time for an attitude reset and a positive mindset as I go into battle.
But I still hope that 10 years from now, a doctor just waves a magic wand over my belly and pronounces me cancer-free. Until then, bottoms up!
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While we may not pause to give it much thought, there is a whole industry surrounding death. From purchasing burial plots and obtaining memorial/funeral services to having a loved one’s remains attended to and ensuring their final resting place is properly cared for, families and estate trustees will interact with various goods and services providers following a loved one’s death.
Often times, these goods and services providers will supply invaluable support at what can be an extremely perplexing and difficult time. Many businesses will guide families in making final arrangements and also help with the process of navigating various necessary but unfamiliar processes such as applying for the CPP death benefit. Like with any consumer goods and services, however, people may have complaints or disagreements with such service providers.
For any consumer of such services who does experience problems, the Bereavement Authority of Ontario (the “BAO”) is a regulatory body which exists to provide consumers protections and assistance with complaints. As set out on its website, the BAO administers portions of the Funeral, Burial and Cremation Services Act, 2002 (the “FBCSA”), regulates licensees under that act, and “ensures that consumers are dealing with qualified and licensed professionals who provide a variety of affordable options.”
For consumers, the BOA provides information regarding consumer rights and services in the bereavement sector, along with a mechanism to submit complaints with respect to services which have been obtained. Once complaints are submitted, the BOA can assist the parties in attempting to resolve the matter, impose certain sanctions on the service provider, or refer the matter to a discipline committee. For those who suffer financial loss as a result of a licensee’s failure to comply with their obligations under the FBCSA, the BOA also administers a compensation fund. Along with these types of consumer protections, the Bereavement Authority of Ontario undertakes a wide array of activities in regulating the bereavement sector such as granting or revoking licenses and initiating studies of alternative technologies and services relevant to the bereavement sector.
While one would hope that the last issue faced by a grieving family is complaints surrounding a bereavement sector service provider, it is helpful to know that a specialized authority exists in Ontario to assist with such complaints, if necessary.
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Any estate litigator will tell you that many of the cases that we deal with on a daily bases involve disputes regarding the beneficial ownership of assets, being jointly held assets or assets that are wholly owned by one party and alleged to be beneficially owned by another.
For reference, legal ownership or legal title refers to property held in the name of a person or persons. In contrast, beneficial ownership is what is referred to as “actual” ownership even though the property is registered in someone else’s name.
Without a clear trust agreement, it is often very difficult to argue that beneficial ownership exists and the parties to the dispute will resort to arguments over things like, who is paying taxes for the property, who is collecting rental income and other evidence that relates to the parties’ intention.
The Province of British Columbia appears to have come up with a solution to the question of whether the specific property truly belongs to the person in whose name it is registered.
The Land Owner Transparency Act has been introduced to create a public registry of property owners in the province. Notably, this is the first legislation of its kind in Canada and is aimed towards ending the use of trusts, corporations and partnerships to shield transactions from public view.
The new legislation was positively received at Transparency International Canada whose executive director, James Cohen, noted that Canada has been criticized globally for our apparently lax beneficial ownership legislation.
In accordance with this legislation, corporations, trusts and partnerships that buy land would have to disclose their beneficial owners in the registry. It is interesting to note that failure to do so will result in fines of up to $100,000.00 or 15% of the assessed value of the property, whichever is greater.
The Society of Trust and Estate Practitioners (Canada) submitted certain concerns to the province such as questions of how the new framework is to work with other relevant legislation and raised questions of privacy.
Will Ontario follow suit? Stay tuned.
To learn more about this new initiative, check out this Globe and Mail article on the topic.
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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.
It is not uncommon for the lawyer who drafted a testator’s will or codicil to subsequently be retained by the Estate Trustees after the testator’s death to assist with the administration of the estate. The rationale behind the drafting lawyer being retained to assist with the administration of the estate appears fairly self-evident, for as the drafting lawyer likely has an intimate knowledge of the testator’s estate plan and assets they may be in a better position than most to assist with the administration of the estate.
While retaining the drafting lawyer to assist with the administration of the estate is fairly uncontroversial in most situations, circumstances could become more complicated if there has been a challenge to the validity of the testamentary document prepared by the drafting lawyer. If a proceeding has been commenced challenging the validity of the testamentary document, there is an extremely high likelihood that the drafting lawyer’s notes and records will be produced as evidence, and that the drafting lawyer will be called as a non-party witness as part of the discovery process. If the matter should proceed all the way to trial, there is also an extremely high likelihood that the drafting lawyer would be called as a witness at trial. As the drafting lawyer would personally have a role to play in any court process challenging the validity of the will, questions emerge regarding whether it would be proper for the drafting lawyer to continue to represent any party in the will challenge, or would doing so place the drafting lawyer in a conflict of interest?
Rule 3.4-1 of the Law Society of Ontario’s Rules of Professional Conduct provides that a lawyer shall not act or continue to act where there is a conflict of interest. In the case of a drafting lawyer representing a party in a will challenge for a will that they prepared, an argument could be raised that the drafting lawyer is in an inherent position of conflict, as the drafting lawyer may be unable to look out for the best interests of their client while at the same time looking out for their own interests when being called as a witness or producing their file. There is also the potentially awkward situation of the drafting lawyer having to call themselves as a witness, and the associated logistical quagmire of how the lawyer would put questions to themselves.
The issue of whether a drafting lawyer would be in a conflict of interest in representing a party in a will challenge was dealt with in Dale v. Prentice, 2015 ONSC 1611. In such a decision, the party challenging the validity of the will brought a motion to remove the drafting lawyer as the lawyer of record for the propounder of the will, alleging they were in a conflict of interest. The court ultimately agreed that the drafting lawyer was in a conflict of interest, and ordered that the drafting lawyer be removed as the lawyer of record. In coming to such a conclusion, the court states:
“There is a significant likelihood of a real conflict arising. Counsel for the estate is propounding a Will prepared by his office. The preparation and execution of Wills are legal services, reserved to those who are properly licensed to practise law. Counsel’s ability to objectively and independently assess the evidence will necessarily be affected by his interest in having his firm’s legal services found to have been properly provided.” [emphasis added]
Decisions such as Dale v. Prentice suggest that a lawyer may be unable to represent any party in a will challenge for a will that was prepared by their office as they may be in a conflict of interest. Should the circumstance arise where the drafting lawyer is retained to assist with the administration of the estate, and subsequent to being retained someone challenges the validity of the Will, it may be in the best interest of all parties for the drafting lawyer to indicate that they are no longer able to act in the matter due to the potential conflict, and suggest to their clients that they retain a new lawyer to represent them in the will challenge.
Thank you for reading.