15 Aug

Are you ready for bulletproof coffee?

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

You know the old saying – you have to hear about something three times before you stop to consider it.

I took my full “three times” with bulletproof coffee. First it was seeing a sign in a coffee shop, then it was a display in a small boutique grocery store, and finally it was a personal trainer asking me “have you tried bulletproof coffee? It’s unbelievable.”

Okay, I had to find out what this stuff was. Even though it’s about 500 calories per serving (and typically consumed in place of breakfast), people claim you gain focus and energy – and lose weight. In a nutshell, bulletproof coffee is made in a blender with:

  • 8-12 ounces of brewed coffee
  • 1 teaspoon to 2 tablespoons of Brain Octane Oil
  • 1-2 tablespoons of grass-fed, unsalted butter or grass-fed ghee

Butter, oil, and coffee? From all the reviews I’ve read, it tastes way better than you might think. The bulletproof brew is based on a ketogenic diet, with high fat, moderate proteins, and low carbohydrates. It triggers weight loss through ketosis, a metabolic state triggered by a lack of carbs that kicks fat-burning into overdrive. The idea is that your body will draw upon fat stores as an energy source, rather than simple sugars like glucose, which is derived from carbohydrates.

It’s also supposed to boost cognitive function, bringing some mental clarity into your foggy morning routine (although regular coffee does that for most people).

Lots of people swear by bulletproof coffee, but none more than the people who make it. This blog describes it all:

And if you’re looking for a full, unbiased assessment of the product and the trend, you won’t get a more thorough analysis than this one.

I haven’t tried bulletproof coffee yet. But I will the next time I pass by a coffee shop that makes it. I’ve done my reading – now I want to see the results for myself.

Thanks for reading!
Ian Hull

14 Aug

Anthony Bourdain’s Estate

Noah Weisberg Estate Planning, In the News Tags: , , , , , , , , , 0 Comments

For all that is known about chef Anthony Bourdain’s colourful lifestyle, the estate plan he left behind is surprisingly comprehensive.

It has been reported that Bourdain left behind both a Last Will and Testament and a separate Trust.

Bourdain’s Will leaves the residue of his estate to his minor daughter, Ariane.  The residue has been valued at approximately $1.2 million, and consists of savings, cash, brokerage accounts, personal property, and intangible property including royalties and residuals.  In the event that Bourdain survived his daughter, the residue was to pass to his daughter’s nanny.

Bourdain appointed his estranged wife as estate trustee.  This makes sense given that Ariane is the daughter of the marriage and that the mother will likely have her daughter’s best interests in mind while the estate is administered.  Bourdain was also mindful to include in his Will other assets – personal and household effects, including frequent flyer miles.  Given the amount of travelling Bourdain did, it was shrewd of him to specifically include this in his Will.

A separate trust was also settled, apparently containing most of his wealth.  Again, his estranged wife is named as trustee, with Ariane as beneficiary receiving money from the trust when she turns 25, 30, and 35.  Presumably, Bourdain settled a trust to avoid the payment of taxes and the publicity associated with probate – another sign of a well thought out estate plan.

While so many celebrities succumb to poor estate planning, it is refreshing that in addition to teaching us about cooking, travelling, eating, and so much more, Bourdain also taught us about the importance of a thorough estate plan.

 

Noah Weisberg

Find this blog interesting, please consider these other related blogs:

13 Aug

Post-Nuptial Agreements

Noah Weisberg Estate Planning Tags: , , , , , , , 0 Comments

Kanye West’s 2005 smash-hit, Gold Digger, includes lyrics that, “if you ain’t no punk; holla, ‘we want prenup! We want prenup!’; It’s somethin’ that you need to have”.  Certainly, an individual entering into marriage with prior wealth, should consider a prenuptial agreement.  What should spouses do though who do not have a prenuptial agreement and receive wealth after marriage?

Unlike a prenuptial agreement, a post-nuptial agreement, as its name suggests, is entered into after marriage.  Post-nuptial agreements are gaining in popularity amongst spouses who inherit property as a beneficiary of an estate or are pulled into the family business on the death of the parent.

Post-nuptial agreements are also being utilized as an estate planning protective measure.

Like a prenuptial agreement, a post-nuptial sets out how the assets of a married couple are to be distributed in the event of death or divorce, and can be as detailed as including the jurisdiction of the divorce and social media rules.

Entering into a post-nuptial agreement shouldn’t necessarily be viewed in a negative light.  The process of going through a post-nuptial agreement can be a cathartic experience for couples – it is an opportunity to look at assets and debts, air grievances, and discuss important parameters in a marriage such as payments to children from a prior marriage.

Given that marriage brings about special legal rights and obligations, those considering a post-nuptial agreement should consider speaking with a professional.

Noah Weisberg

Find this blog interesting, please consider these other related blogs:

10 Aug

Gifts and the Importance of Timing

Hull & Hull LLP Beneficiary Designations, Estate & Trust, Estate Planning, Trustees, Uncategorized, Wills Tags: 0 Comments

In order for a gift to be valid, there must be delivery. The issue of the timing of the delivery of a gift was explored in the recent Quebec decision of Estate of Tilden, 2018 QCCS 2971 (CanLII).

There, the Liquidator (a role similar to that of an estate trustee) of the Estate of Robert Tilden claimed that a gift made by the deceased was not perfected by delivery prior to the death of the deceased, and therefore lapsed, and must be returned to the estate.

The facts of the case are quite bizarre. The deceased was involved in a family law proceeding. He did not attend at a family law mediation. A legal assistant called the respondent, the deceased’s cousin and best friend, to ask about the deceased’s whereabouts. Late on September 17, 2015, the respondent drove to the deceased’s cottage to look for him. The deceased was not there. The cottage was clean and nothing appeared out of the ordinary. The respondent returned home, stopping to pick up his mail on the way. In his mail, he found a letter from the deceased. The letter indicated that the deceased had left two boxes for the respondent in the basement of the deceased’s cottage. The respondent returned to the cottage, and in the boxes he found hashish and over $600,000 in cash.

While the respondent was at the cottage, a neighbour arrived, also looking for the deceased. The respondent said that the deceased was not there, and the neighbour left. The respondent then put the cash in his car and left.

The next day, the respondent found a letter with the cash. In the letter, the deceased said that some of the cash was to be delivered to another friend, and that the rest was for the respondent.

That same day, another relative received a letter containing a cheque in the amount of approximately $230,000. The relative was concerned about the deceased, and phoned the police. The police attended at the cottage and found the deceased dead in a sleeping area above the garage. They also found letters in the kitchen setting out how the deceased wanted his estate divided. The respondent gave evidence that he did not notice these letters on both occasions when he was at the cottage.

The cause of death was determined to be suicide, and the date of death was determined to be September 17, 2015: the same day that the respondent picked up the cash.

The respondent asked the court to conclude that the deceased died AFTER the cash was picked up, and therefore there was a valid gift of the cash. He argued that the court should presume that the deceased waited until the respondent left the cottage with the box of money before taking his life.

The court refused to make such a finding. The court held that such a presumption was too much of a stretch, based on the facts as known. The court’s reasoning included consideration of the following:

  1. It is not “clear and obvious” that the deceased planned to wait for the respondent to take the box of money before committing suicide;
  2. The deceased would have had no way of knowing that the respondent would go to his cottage immediately upon receiving the letter, to pick up the gift;
  3. In the deceased’s “letter of wishes” left the cottage to the respondent. Therefore, the deceased could have expected the respondent to search the cottage after he had died;
  4. A presumption that the deceased waited for the respondent to pick up the gift before he committed suicide presumed that the deceased knew that the gift had to be completed between two living persons. If the deceased knew this, he wouldn’t have hid from the respondent, but would have given him the cash;
  5. If the deceased was hiding from the respondent when he first attended at the cottage, he wouldn’t have seen that the respondent left without the box of money, and wouldn’t have known that the respondent would return shortly thereafter;
  6. It did not make sense that the deceased waited for “delivery” of the gift to the respondent, but not to the other friend who was to receive part of the cash;
  7. The deceased left other property to the respondent in his valid will. The court queried why the deceased would do this with other property, but not with the cash.

The court concluded that the gift of the money was likely meant to be found after the deceased died, but was to be treated as a “secret”. However, in the circumstances, the gift failed. The respondent was ordered to repay the gift of cash made to him. However, as some consolation, no costs were awarded against the respondent.

For another discussion of a case involving an incomplete gift, see our blog, here.

 

Thanks for reading. Have a great weekend.

Paul Trudelle

09 Aug

Due Execution and the Presumption of Validity: Should We be Doing More?

Rebecca Rauws Wills Tags: , , , , , , , , 0 Comments

A recent decision of the Hong Kong Court of Appeal addresses the importance of the solicitor’s role in preparing and attending to the execution of a Will, particularly in the context of a Will challenge. The decision is discussed in this article. Although the decision is from Hong Kong, the test applied in respect of testamentary capacity is, as it is in Canada, the classic criteria from Banks v Goodfellow. In this regard, I found it interesting to consider the Hong Kong Court’s decision.

In Ontario, when a Will has been duly executed, meaning that it has been executed in accordance with the requirements set out in the Succession Law Reform Act, R.S.O. 1990, c. S.26, there is a presumption that the Will is valid. However, where suspicious circumstances are shown to exist surrounding the preparation and execution of a Will, this presumption will be spent, and the propounder will be required to prove that the testator had the requisite testamentary capacity to execute the Will. We have previously blogged about which party must prove certain elements in a Will challenge.

According to the article, the same presumption arising from due execution appears to exist in Hong Kong. In the decision of Choy Po Chun & Anor v Au Wing Lun (CACV 177/2014), the Hong Kong Court of Appeal places some additional responsibility with respect to the “due execution” of Wills on solicitors preparing them. In particular, the Court of Appeal sets out that a solicitor should undertake proper groundwork and make proper enquiries, such as following a checklist from the British Medical Association regarding the assessment of mental capacity, and the “golden rule” that a Will for an elderly or ill testator should be witnessed or approved by a medical practitioner who has examined the testator.

In this decision, the Court of Appeal set aside the lower court’s decision that the Will in question was valid. As the solicitor had not taken the additional steps noted above (namely following the checklist and the “golden rule”), it could not be presumed that the Banks v Goodfellow criteria had been met, and therefore each element of the test should have been asked, and proven by the propounder of the Will.

In reviewing the guidelines set out by the Court of Appeal, as summarized in the article, it seems as though the solicitor is being asked to consider whether suspicious circumstances may appear to exist, and to take additional steps if that may be the case. In particular, the Court of Appeal suggests the following:

  • Where Will instructions are given by the children of an elderly testator who is not in good health, the lawyer should meet with the testator personally to confirm instructions;
  • In the case of an elderly or infirm testator, the solicitor should follow the checklist noted above; and
  • The solicitor should follow the “golden rule” when preparing a will for an aged or seriously ill testator.

While this decision is not binding in Canada, it nevertheless raises some interesting points, which a prudent solicitor may wish to consider and implement in their practice. For instance, it may be advisable to confirm instructions directly with the testator if initially provided by another individual, and take steps to confirm whether a testator has the requisite capacity in circumstances where he or she may be elderly and/or in poor health.

Thanks for reading,

Rebecca Rauws

 

Other blog posts that you may enjoy:

08 Aug

Providing eldercare? Have an estate discussion

Suzana Popovic-Montag Beneficiary Designations, Elder Law, Elder Law Insurance Issues, Estate & Trust, Estate Planning, Uncategorized, Wills Tags: , , 0 Comments

We’ve seen it too many times in our estate litigation practice. An adult child moves in with an elderly parent and looks after them in the years leading up to the parent’s death. The parent wants to acknowledge the help the child has given and the sacrifice they’ve made so, before they die, they amend their will to include an additional gift or percentage share of their estate to the caregiver child.

When the parent dies, the other children in the family are crushed. They all loved their parents equally and were expecting an equal division of the estate. An estate that’s divided 60-20-20 amongst three siblings hardly seems fair to them.

But what if it is? What if the caregiver child gave up their career early to look after the parent? What if they put their own social life and outside interests on hold to perform the daily tasks that needed to be done? Isn’t that child entitled to some recognition for these sacrifices?

The issue is a simple one: fairness and equality can be two different things. When fairness trumps equality, and requires an unequal division of an estate, that’s when the problems begin, because fairness means different things to different people.

The solution? Talk

Eldercare provided by one of several children is a common situation and, in my experience, family members should discuss estate expectations, and the earlier the better. So much can be gained by talking while the parent is still alive and able to express their thoughts and wishes.

The children too have a chance to express their thoughts. For example, what if one child actually wanted to contribute more to eldercare but didn’t want to usurp the role of the child currently giving care? The only way that will come out is through a family discussion.

Yes, it can be awkward starting a conversation about eldercare and estate issues. No one wants to appear needy or greedy. But the last thing the parent wants after they die is family disharmony and bitter relationships. To avoid that, take the bull by the horn, swallow hard, and start talking. Even if bad feelings emerge, it’s better to air the issues now while there is still time to resolve them.

This recent Globe and Mail article reinforces the need for professional advice in drafting a will, but also has a good discussion on the fairness versus equity issues.

Thanks for reading … Have a wonderful day!

Suzana Popovic-Montag

07 Aug

Hull on Estates #552 – Distribution in light of a number of potential Wills

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes, Wills Tags: , , , , , , 0 Comments

In today’s podcast, Paul Trudelle and Rebecca Rauws discuss the recent decision of Eissmann v Kuntz, 2018 ONSC 3650 and the distribution of an estate in light of a number of potential Wills.

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 Paul Trudelle.

Click here for more information on Rebecca Rauws.

07 Aug

Estate Planning Bucket List

Rebecca Rauws Estate Planning Tags: , , , , , , , , 0 Comments

I hope that everyone had a wonderful long weekend and has been able to check a couple of items off their summer “bucket list”. If the summer has been passing you by a little too quickly, and you feel that you are missing out—don’t worry! A recent essay in the Wall Street Journal makes the case for, at the least, scaling back on bucket lists:

Nobody really needs to go falconing in Mongolia or ride on the back of a nurse shark in Alaska for their life to be complete. They need to raise kids who won’t grow up to hate them. Or take care of their aging mother and make sure she gets a nice send-off.

That being said, there are a couple of things that we at Hull & Hull would recommend adding to your “bucket list”:

  • Have a Will and Powers of Attorney: If you don’t take the time to set out what your wishes are, you risk those wishes being either unknown, or not respected.
  • Review your Will and Powers of Attorney & Know what they say: You should be confident that you not only know exactly what your Will and Powers of Attorney say, but that they continue to represent your wishes. Particularly if your estate planning documents were prepared a number of years ago, it is important to review these documents and ensure that you recall their contents, so as to avoid any unexpected outcomes. If you are familiar with the contents of your Will and Powers of Attorney, you are more likely to be triggered by changes in circumstances that may affect you, and to take steps to adjust your estate planning documents accordingly.
  • Revisit your estate plan: It is important to review your estate plan and consult with your lawyer regularly. There are a number of life events that can impact the effect of your Will, including marriage, divorce, the birth of a child, the death of an estate trustee, the death of a beneficiary, a beneficiary developing a disability, changes in the law, and the list goes on. If you aren’t revisiting and updating your Will regularly, based on changes in circumstances, the way in which your estate is ultimately distributed on your death could be vastly different than what you originally envisioned.

Thanks for reading,

Rebecca Rauws

 

You may also find these other posts to be of interest:

03 Aug

O Brother, Where Art Thou? Benjamin Orders

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

A testator provided in her will that a share of the residue of her estate was to go to three of the testator’s brothers. If any one of them predeceased the testator, their share would go to two nieces of the deceased.

The testator was predeceased by two of her brothers. A third could not be located. What was the estate trustee to do?

This question was addressed in the July 27, 2018 decision of Steele v. Smith, 2018 ONSC 4601 (CanLII). There, the Public Guardian and Trustee suggested that the share payable to the missing brother be paid into court, and that further efforts be taken to locate him. The estate trustee, on the other hand, asked the court for a “Benjamin Order”, allowing him to distribute the estate as if the missing brother had predeceased the testator.

The court reviewed the history of the Benjamin Order. The Order derives from the case of Neville v. Benjamin, [1902] 1 Ch. 723. There, the deceased was survived by twelve children. A thirteenth disappeared while on vacation, and after it was suspected that he had stolen money from his employer. The court held that the burden was on the missing person’s administrator (or those claiming through him) to prove that the missing person had survived the deceased. In Benjamin, the burden was not met, and the estate was allowed to be distributed as if the missing person had predeceased.

Benjamin Orders are rare, and not easy to obtain. The court will consider the “sufficiency” of the inquiries made by the estate trustee. In considering this, the court will look for information about:

  1. How much time has elapsed since the death of the testator?
  2. What specific steps have been taken to locate the missing person, and over what period of time?
  3. Who has made the inquiries? Are they appropriately qualified?
  4. Do the inquiries take into account consideration of the possible location of the missing person?
  5. Are further inquiries likely to produce any more information?
  6. What is the amount at state?

In Steele v. Smith, the estate trustee is said to have gone to “extensive lengths” to determine the missing brother’s location in the eighteen months since the testator’s death. The court held that the estate trustee had exhausted all available avenues of inquiry, and that there was no evidence that further efforts would yield positive results. Further, there was no reason why the missing brother would choose not to be found. Unfortunately, the value of the share of the residue in issue is not disclosed in the decision.

The court ordered that the estate trustee was at liberty to distribute the estate as if the missing brother did not survive the testator.

One of the benefits of a Benjamin Order is that it gives protection to the estate trustee. If the missing brother later appeared, he would have no claim as against the estate trustee. However, he may have a claim as against the beneficiaries who benefitted from the Order.

Thank you for reading.
Paul Trudelle

02 Aug

Aging in Place in Canada

Nick Esterbauer Elder Law, General Interest, In the News Tags: , , , , , , , , 0 Comments

A recent survey commissioned by HomeEquity Bank suggests that the majority of older Canadians plan on staying in their homes as they age (otherwise known as aging in place) rather than downsizing and/or moving into assisted living or retirement communities.  93% of survey respondents aged 65 or older felt that it was important that they remain at their current home throughout retirement.  69% of them advised that their primary reason for wishing to remain at home was to maintain independence as they age.

The older respondents (75 years or older) advised that it was important to them that they remain in their current home to stay close to family, friends, and/or the community (51%) and that emotional attachment and memories were also contributing factors (40%).

In order to remain living at home as long as possible into retirement, advance planning in terms of finances and logistics may be necessary.  A recent article appearing in Forbes suggests that the following steps, unrelated to financial planning, may be especially useful in facilitating successful aging in place:

  • Maintaining social connections to avoid social isolation;
  • Identifying who will help, whether family members, friends, or public services;
  • Planning for the transition as needs change over time and identifying the resources and services available in the community;
  • Preparing the home to accommodate increased needs (for example, by installing grab bars and a chair in the shower);
  • Reviewing and updating the plan to age in place as may be necessary (due to a change in health, available support, or financial constraints).

Notwithstanding one’s plans to continue living at the family home, increasing longevity, a lack of liquidity, unrealistic expectations in terms of income sources after retirement, and the high cost (or local inaccessibility) of caregiving services may contribute to a decision to sell the home and relocate earlier than intended.

Thank you for reading.

Nick Esterbauer

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