Category: Hull on Estate and Succession Planning

06 Mar

Hull on Estates #541 – Cross claims and time-barred

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Today on Hull on Estates, Paul Trudelle and Kira Domratchev discuss the decision of the Ontario Court of Appeal in Levesque v Crampton Estate, 2017 ONCA 455, which dealt with the question of whether a crossclaim against the Estate of Father Dale Crampton was time-barred by s. 38 (3) of the Trustee Act.

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Click here for more information on Paul Trudelle.

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20 Feb

Hull on Estates #540 – Constructive Trusts

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In today’s podcast, Natalia Angelini and Doreen So discuss the case of MacDonald v. Estate of James Pouliout, 2017 ONSC 3629, which was an interesting decision on constructive trusts, the limitation period applicable to dependants relief, and vesting pursuant to section 9 of Estate Administration Act.

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Click here for more information on Natalia Angelini.

07 Feb

Make it your year for “best picture” critical thinking

Ian Hull Estate & Trust, Estate Planning, Hull on Estate and Succession Planning, Hull on Estates, Trustees, Uncategorized, Wills 0 Comments

Do you ever wonder how your emotions impact your decision-making? Or more specifically, how many sub-optimal decisions you make based on emotion?

We get caught up in the hype, or succumb to an emotional appeal, or bring our business to someone we like rather than someone who can get the job done. It’s easy to have happen, and it happens to many of us quite often.

A high-profile example? The Academy Awards each year. You’d think that 6,000 people would select “best pictures” that are regarded as a high artistic achievement for years to come. But in fact, emotion, hype and other factors often come into play. As a result, many past winners of best picture are quickly forgotten, while many non-winners become timeless classics.

See for yourself – don’t you agree?

So how can you make “best picture” decisions in your life – those decisions where you look back five years later and say “yup, that was a great move.” These can be especially important for estate and financial management matters where the bottom line is usually what matters.

The key is to take emotions (that sales guy is nice) and extraneous factors (I’ve always banked here) out of the equation and use your critical thinking to decide. Here are three areas you might want to review:

  • Investment fees: High fees can be justified by high performance, but are you getting value for the thousands of dollars you spend in management fees each year? The tough part is that there’s often a personal advisor relationship at stake. But it’s your money: take a good hard look and decide.
  • Banking: We’re sometimes proud of the long-term banking relationships we have, but pride is not a great emotion for financial decision-making. Just because your bank was great when it gave you a law school loan when you were 23 doesn’t mean it’s providing great value today. Yes, it’s a hassle to switch, but a review every few years can ensure you’re still getting “best picture” service and value.
  • Service providers: The house cleaning person, the dog walker, the cottage checker, the tutor for your children – there are definitely great ones out there. But are you getting the best? Use your critical thinking – not your emotions – to make any changes you need to.

For a broader view of emotion and financial decision-making, this article describes the issues well, with some tips on making better decisions.

Thank you for reading,
Ian Hull

06 Feb

Hull on Estates #539 – The basics of the rule in Saunders v. Vautier

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This week on Hull on Estates, Stuart Clark and Nick Esterbauer discuss the basics of the rule in Saunders v. Vautier and its expansive role in estate and trust proceedings.

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23 Jan

Podcast #538 – Supreme Court of Canada: Cowper-Smith v Morgan

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Today on Hull on Estates, Noah Weisberg and Rebecca Rauws discuss the recent decision of the Supreme Court of Canada in Cowper-Smith v Morgan , 2017 SCC 61, and the expanded scope of the doctrine of proprietary estoppel.

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Click here for more information on Noah Weisberg.

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09 Jan

Hull on Estates #537 – Calderon Estate: Standing and Limitation Periods

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In today’s podcast, Jonathon Kappy and Umair Abdul Qadir discuss the Honourable Justice McEwen’s recent decision in Calderon Estate v Prince, 2017 ONSC 6584, on the issues of standing of a non-party and the application of the two-year limitation period under the Trustee Act.

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05 Jan

No Take Backs: Gifting and Changes of Heart

Hull & Hull LLP Beneficiary Designations, Estate & Trust, Estate Planning, Hull on Estate and Succession Planning, Hull on Estates, Trustees, Wills Tags: 0 Comments

“This is one of too many cases that appear in our courts demonstrating family disputes over what the preceding generation has left behind. In coming to court for resolution, the parties risk any potential for a continuing, friendly or at least cordial relationship amongst siblings; the present generation. At times the problem is over the failure of the children to acknowledge the intention of their parent as expressed in a will. Here, unhappily, the problem arises from the actions and apparent change of heart by the father … .”

This lament comes from the opening paragraphs of 1268223 Ontario Limited v. Fung Estate, 2016 ONSC 8020 (CanLII). There, the father incorporated a company, being the plaintiff. His daughter was sole officer, director and shareholder of the company. The company then purchased a building in Toronto with funds provided by the father. Years later, the property was sold. The father said that he needed money in order to cover other debts, and received a cheque from the company for $1,070,000.

The father never repaid the money. The daughter then sued the father for repayment. The father defended, alleging that the property and the sale proceeds were held in trust for him. After he died, his estate continued the defence.

At trial, the judge found that the father gifted the company and the purchase money for the property to the daughter. There was extensive evidence to support this, including the fact that the father had made similar gifts to his other two children, the fact that the father had told the daughter that “I am going to buy you a property.”, the fact that the mother referred to the property as being the daughter’s property or the daughter’s mall; the fact that none of the documentation surrounding the purchase of the property suggested that it was a purchase in trust for the father, and the fact that, although the father remained involved in the operation of the property, it was the daughter who determined that the property should be sold. Perhaps most tellingly, in an alleged exchange between the father and one of his sons, the son said “you gave it to her…you can’t take it back”, to which the father said “so what…I want it back”.

The trial judge concluded that “There is no basis upon which [the father or the father’s estate] can claim the ownership of the money taken. There is no evidence that there was any intention that the company or the property it purchased, operated and sold, was for the benefit of anyone other than [the daughter].”

It is not clear if the presumption of resulting trust was argued. The presumption is not addressed in the reasons for decision. However, it is likely that the daughter’s evidence could have rebutted the presumption.

The decision was upheld on appeal. The Court of Appeal found that the evidence supported the three criteria for a gift set out in McNamee v. McNamee, 2011 ONCA 533 (CanLII), being an intention to make a gift, an acceptance of the gift by the done, and a sufficient act of delivery or transfer.

Thank you for reading.

Paul Trudelle

27 Dec

Hull on Estates #536 – Lost Wills and Rebutting the Presumption of Revocation

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In today’s podcast, Paul Trudelle and Sayuri Kagami discuss the court’s reasons for finding that the presumption of revocation had been rebutted in Levitz v Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253 where an original will was lost.

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Click here for more information on Paul Trudelle.

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12 Dec

Hull on Estates #535 – Limitations on the Obligation to Account

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In today’s podcast, Natalia Angelini and Garrett Horrocks discuss the court’s reasons for declining to order a formal passing of accounts in the McLoughlin Estate decision.

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Click here for more information on Natalia Angelini.

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28 Nov

Hull on Estates #534 – Gifts and Cheques

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Today on Hull on Estates, Jonathon Kappy and Doreen So discuss the issue of gifts that are made by way of a cheque in the context of the Court of Appeal’s decision in Teixeira v. Markgraf Estate

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 Jonathon Kappy.

Click here for more information on Doreen So.

 

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