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

21 Feb

Your Rights in a Long-Term Care Home

Doreen So Elder Law, Ethical Issues, General Interest, Health / Medical Tags: , , 0 Comments

This week on our podcast Stuart Clark and I discussed the statutory Residents’ Bill of Rights that is within the Long-Term Care Homes Act, 2007.

The importance of this Act should not be overlooked by anyone who is has a loved one in a long-term care home.  Section 3 of the Act gives rise to enforceable rights as between the resident and the care home as if they have entered into a contract where the home has agreed to fully respect and promote 27 enumerated residents’ rights.

As an example, the first 4 rights are:

  1. the right to be treated with courtesy and respect and in a way that fully recognizes the resident’s individuality and respects the resident’s dignity;
  2. the right to be protected from abuse;
  3. the right not to be neglected; and
  4. the right to be properly sheltered, fed, clothed, groomed and cared for in a manner consistent with his or her needs.

While it may be difficult to determine what the Residents’ Bill of Rights means in day-to-day reality, it is a meaningful starting point for any advocate.

An important resource is the government of Ontario’s Guide to the Long-Term Care Homes Act, 2007 and Regulation 79/10, which is available for download here.

Thanks for reading and listening!

Doreen So

20 Feb

Do you lie to your doctor?

Ian Hull Estate & Trust, Estate Planning, Health / Medical, Uncategorized Tags: , , , 0 Comments

Your annual physical is approaching, and you’re still averaging three to four alcoholic drinks per night – despite the fact that you told your doctor last year that you were going to cut back.

At your appointment, your doctor reviews her notes and asks how the drinking is going. You surprise yourself by blurting out a complete lie – that you’re now going drink-free every other night and have effectively cut your drinking in half.

Your doctor is pleased, and she begins her examination. In your mind, you move on too, but with one perplexing question: why did you lie?

More common than you think

First, if you do lie to your doctor, you’re not alone. In a recent survey carried out by the University of Utah, about 80% of respondents admitted they lie to – or conceal information from – their doctor on issues that could have health implications. The people most likely to do this were women, younger patients, and those who rated their own health as poor.

The top three reasons?

  1. Not wanting to be judged or lectured
  2. Not wanting to hear how harmful their behaviour is
  3. Not wanting to be embarrassed.

This recent CBC article has more information on the research.

A new approach

Whether you blame this lying on preachy doctors who scare people into not fessing up, or on cowardly patients who don’t own up to their behaviours, one point is crystal clear: lying to your doctor does nothing to advance your health needs.

With more health professionals now available online (either by email, chat or video conference), we now have the tools to move to a more non-judgmental “health coaching” model, with regular check-ins on areas of concern.

For example, a regular smoker will still have an annual physical with their doctor, but rather than dealing with the issue of smoking annually in a single (dreaded) conversation, the doctor diverts the behavioural elements to a nurse practitioner with experience in smoking cessation who provides online coaching on a regular basis. Even if the smoking continues, the nurse practitioner can encourage the person to adopt other behaviours that at least move the needle on health (“hey, how about walking to work twice a week – is that doable?”). And with electronic medical records, they can add any changes to your file, so that your doctor stays in the loop.

In short, we free up doctors to focus on physical health needs at annual physicals (such as blood pressure and heart and lung functions) and rely on encouraging, non-judgmental health coaches to focus on behaviours that may be harming our health (such as risky sex, poor eating, gambling or drug and alcohol issues).

Some of these models exist today in various forms. So, if you’re tired of your own “dance with the truth” at your annual physical, ask your doctor about health coaching alternatives.

 

Thanks for reading.
Ian Hull

19 Feb

Hull on Estates #566 – Residents’ Bill of Rights

76admin Estate & Trust, Hull on Estates, Podcasts Tags: , , , , , , 0 Comments

This week on Hull on Estates, Stuart Clark and Doreen So discuss the Residents’ Bill of Rights within Ontario’s Long-Term Care Homes Act, 2007.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Stuart Clark.

Click here for more information on Doreen So.

19 Feb

The Latest ONCA Pronouncement on Will Challenges

Doreen So Capacity, Estate & Trust, Litigation, Uncategorized, Wills Tags: , , , 0 Comments

 

Another will challenge was before the Court of Appeal this month on February 5, 2019.  Reasons for the panel, comprised of Pepall, Trotter, and Harvison Young JJ.A., were released in writing on February 13th.  Quaggiotto v. Quaggiotto, 2019 ONCA 107, can be found here.

The issue of validity was solely focused on a codicil that was executed by Maria Quaggiotto when she was 87 years old.  The codicil left the residue of her estate to one son, Livio, while her will had previously left an equal division of the residue to both of her sons, Livio and Franco.

After a 10 day trial, Justice Rogin found that the codicil was valid.

On appeal, the challenger Franco sought to overturn various findings of fact and findings of mixed fact and law.

Ultimately, the panel upheld the decision of Justice Rogin.

The panel reaffirmed the Court of Appeal’s decision in the Orfus Estate with respect to the notion that testators are not required to have “an encyclopedic knowledge” of their assets in order to satisfy the test for testamentary capacity.

Interestingly enough, the Court of Appeal found that the trial judge was sufficiently alive to corroboration requirements of section 13 of the Ontario Evidence Act even though Justice Rogin’s decision would appear to have erroneously cited section 13 of the Ontario Estates Act for this important statutory requirement.  The adage “form over substance” did not hold water in this appeal given that the actual legal requirement was adequately considered by Justice Rogin.

Thanks for reading!

Doreen So

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

14 Feb

Elder Law Litigation Needs to Increase?

Natalia R. Angelini Elder Law, Litigation Tags: , , 0 Comments

In the last couple of decades we have seen a rise in estate, capacity and trust litigation due in large part to the aging demographic.  One would think that elder law disputes – disputes involving retirement residences, nursing homes and/or long-term care facilities – would similarly be on the rise.  What was highlighted for the attendees at a recent Personal Injury and Elder Law CLE presentation, however, is that there is limited case law in the elder law area. Although the knee-jerk reaction may be to see few cases litigated through to a final hearing as a positive state of affairs, that is not so. Rather, it seems that there are an insufficient number of claims being made, and an even fewer number that are pursued all the way to trial.

The panel sees ageism as contributing to this set of circumstances. Damage awards are typically lower for the elderly, the rationale seemingly that they have already lived most of their lives and are going to die anyway. The converse “Golden Years Doctrine” was cited as a means to argue for the better protection of elderly plaintiffs, grounded in the argument that the elderly suffer more and are more severely impacted from an injury than their younger counterparts.

Taking such cases to trial and increasing awareness (e.g. media coverage) is a way to create progress and change in this area of the law. The panel advocated for this approach, as well as stressed the importance of electing to have such cases heard in front of a jury, who may be more willing to award larger sums to litigants.

If this advice is followed, we can hope to see more decisions that can build upon the few noted cases in the area (this article references some of them), and more just outcomes for the elderly, their families and/or their estates.

Thanks for reading and have a great day,

Natalia R. Angelini

13 Feb

Fertilizer for your brain: How to grow your resilience

Suzana Popovic-Montag Estate & Trust, Estate Planning, Health / Medical, In the News, Uncategorized Tags: , , 0 Comments

Let me give you the bad news first: some people are naturally more resilient than others – and life can be tough if your resilience falls in the low end of the range.

Now the good news: your level of resilience isn’t static. You can grow it – with the right brain fertilizer – to become mentally stronger in the face of adversity. This recent New York Times article discusses some of the ways it can be done.

The article is just one of many to explore the link between greater (and lasting) resilience and activities such as mindfulness, social stimulation, and physical activity. It also sets out a great definition of resilience, courtesy of Huda Akil, a neuroscientist at the University of Michigan:

“Active resilience happens when people who are vulnerable find resources to cope with stress and bounce back, and do so in a way that leaves them stronger, ready to handle additional stress, in more adaptive ways.”

In our line of work, the “vulnerable” part mentioned in the above definition is often death, and the estate dispute that follows. From our observations, while death is one of life’s certainties, dealing with it is anything but. In estate disputes, some people are able to cope with the family death and the dispute over assets. Others crumble under the weight of grief and anger. What we’ve seen in many cases is that a higher level of resilience can make a positive difference to outcomes.

How to increase resilience

So, what’s the magic “brain fertilizer” that can increase our resilience? As it turns out, it’s not really magic at all. Better health equals greater resilience, so exercising and good nutrition go a long way to improving resilience. A strong social network also plays a key role. After that, much of it involves shifting our way of thinking – which is where a trained therapist can make a huge difference.

Take a look at the American Psychological Association’s 10 ways to build resilience  and consider the opportunities you may have to bounce back stronger the next time adversity comes your way.

 

Thanks for reading!
Suzana Popovic-Montag

12 Feb

Can Typography Expose a Sham Trust?

Natalia R. Angelini Estate & Trust, Litigation, Uncategorized Tags: , , 0 Comments

In estate litigation it is not uncommon to have reason to engage handwriting experts to attest to the authenticity of a signature on a testamentary document. However, the need to engage a typography expert to speak to the font used on such a document is a much rarer occasion. In McGoey (Re) such an expert was used to expose a sham trust.

In this case, upon Mr. McGoey’s assignment into bankruptcy, the trustee in bankruptcy sought to realize on the assets, seeking a declaration that Mr. McGoey’s interest in two properties held jointly with his wife were assets of the estate and subject to creditor claims. Mr. McGoey and his wife argued that they held title to the properties in trust for their children and, thus, outside the reach of creditors. They asserted that the trust documentation was executed in 1995 for one property and in 2004 for the other.

Upon examination by a typography expert, it was revealed that the dates of execution of the documents were not accurate, as neither Cambria (the typeface on the 1995 document), nor Calibri (the typeface on the 2004 document), were available for use by the general public until 2007. The court accepted the expert’s evidence. However, the issue was not fully resolved, since Mr. McGoey’s financial predicament was not apparent until 2010. He and his wife may have lawfully created trusts for their children between 2007 and 2010.

The court turned its scrutiny to the other circumstances of the case. Although several red flags or “badges of fraud” were found and are cited in the decision, most notable was the fact that nothing distinguished the McGoey’s use of the properties from that of an owner – they used the properties as they desired, encumbered them when they wanted and described themselves as the owners in legal papers. Accordingly, the court concluded that the trusts were shams.

Although both the expert testimony and the surrounding circumstances contributed to the court’s ruling, it seems the evidence of the typography expert would have been definitive on the question had the factual timeline been different. I expect with the ongoing creation of new fonts that we can expect to see increased use of such expert testimony in estate litigation.

Thanks for reading and have a great day,

Natalia R. Angelini

11 Feb

Getting Frozen out of Cryptocurrency?

Natalia R. Angelini Estate & Trust, Estate Planning, Executors and Trustees, General Interest, In the News, News & Events Tags: , , 0 Comments

Cryptocurrency is  aptly described in a recent post as “digital cash stored on an electronic file and traded online… like online banking but with no central bank or regulator. It also has virtual wallets which store the cryptocurrency.”

As with any online assets, access to a deceased person’s cryptocurrency is vital. Without it, heirs will not receive their intended entitlements and the cryptocurrency will remain dormant.  A stark example of such a problem can be found in the QuadrigaCX debacle.

QuadrigaCX is Canada’s biggest cryptocurrency exchange. Its’ founder, Gerald Cotton, died unexpectedly and prematurely at age 30. He was the only one who knew the password to access the holdings of the company’s clients. Once news of his death got out, thousands of clients were rushing to withdraw millions in funds. They have not yet been successful, the reason being, as one author explains, is that “…Cotten was the sole person responsible for transferring QuadrigaCX funds between the company’s “cold wallet” — secure, offline storage — and its “hot wallet” or online server…Very little cryptocurrency was stored in the hot wallet for security purposes. Cotten’s laptop was encrypted, and his widow, Jennifer Robertson, and the expert she hired have been unable to access any of its contents.”

QuadrigaCX is evidently now in financial straits. It has filed for creditor protection in the Nova Scotia Supreme Court. Further, Ms. Robertson has reportedly sought the appointment of Ernst & Young to oversee the company’s dealings while attempts to recover the lost holdings continue.

This unfortunate situation highlights the risk that may accompany cryptocurrency’s lack of regulation. It also serves as a reminder to us that with ownership of digital assets growing, we need to think about how to ensure that gifting such assets is effected, including making sure to inform our intended estate trustees of how to access the assets. Doing so is helpful because, as the above case demonstrates, it is a must in the case of cryptocurrencies to have the password relevant to the wallet where the currency is held. Further, with an asset as volatile as cryptocurrency can be, a fully informed estate trustee will be in a better position to avoid delays in the administration of an estate and/or allegations of mismanagement if he/she is able to quickly access and distribute such assets.

Thanks for reading and have a great day,

Natalia R. Angelini

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