Category: Hull on Estates

12 Jun

Hull on Estates #548 – Four Corners versus Armchair

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In today’s podcast, Jonathon Kappy and Kira Domratchev discuss the British Columbia Court of Appeal decision of Killam v Killam (2018) BCCA 64, and the “four corners” approach versus the “armchair” approach in interpreting the testator’s intention.

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 Kira Domratchev.

29 May

Hull on Estates #547 – Test for Mutual Wills

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This week on Hull on Estates, Paul Trudelle and Doreen So discuss the test for mutual wills in the decision of Rammage v. Estate of Roussel.

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 Doreen So.

 

15 May

Hull on Estates #546 – Attorneyship planning options

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This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss attorneyship planning options and the importance of full consideration of what may seem like basic options in protecting the interests of clients during periods of mental incapacity.

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 Natalia Angelini.

Click here for more information on Nick Esterbauer.

01 May

Hull on Estates #545 – The availability of summary judgments

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In today’s podcast, Ian Hull and Rebecca Rauws discuss the availability of summary judgments, and their use in estate litigation, in the context of the recent Ontario Court of Appeal decision in Aird & Berlis LLP v Oravital Inc., 2018 ONCA 164.

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 Ian M. Hull.

Click here for more information on Rebecca Rauws.

03 Apr

Hull on Estates #543 – The Uncertainty of Death and RRSP Taxes

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In today’s podcast, Noah Weisberg and Sayuri Kagami discuss the Alberta decision of Re Morrison Estate, 2015 ABQB 769, and the issue of who is responsible for the often hefty taxes payable on registered accounts of a deceased person: the beneficiary of the account or the deceased’s 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 Noah Weisberg.

Click here for more information on Sayuri Kagami.

20 Mar

Hull on Estates #542- Harvey v Talon International Inc.: The Importance of Pleading Earnest

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In today’s podcast, Jonathon Kappy and Garrett Horrocks discuss the Ontario Court of Appeal’s decision in Harvey v Talon International Inc., a case that clarified the importance of proper pleadings in real property claims.

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 Garrett Horrocks.

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

26 Jan

What Hat Are You Wearing, and Why It Matters

Hull & Hull LLP Beneficiary Designations, Capacity, Estate & Trust, Estate Planning, Hull on Estates, Power of Attorney, Support After Death, Trustees, Wills 0 Comments

We act in different capacities: sometimes in a personal capacity, and sometimes in a representative capacity, such as in the capacity as Estate Trustee. What capacity we are acting in can sometimes have a significant impact on our legal rights.

Take, for example, the Court of Appeal decision in Bennett v. Bennett Estate, 2018 ONCA 45 (CanLII). There, four brothers, Dennis, George, Donald and John, owned several parcels of land. They entered into an agreement that provided a right of first refusal in the event that any of them sought to sell any of the lands to a third party. Donald died, and was survived by his wife, Darlene. John died, and his property was transferred to his wife Joyce and two sons.

In 2012, Joyce and her sons proposed to sell their property to a third party. The agreement of purchase and sale acknowledged the right of first refusal, and the sale was conditional upon George, Dennis and the estate of Donald not exercising their right of first refusal. Darlene purported to exercise her purported right to purchase the property.

The third party purchaser took the position that Darlene could not exercise the right of first refusal because she was not a party to the first right agreement. It was acknowledged that Donald’s estate was entitled to exercise the right of first refusal. However, Darlene claimed to exercise the right of first refusal not as estate trustee of Donald’s estate, but as a family member. The motions judge rejected this submission based on the judge’s review of the first right agreement, and the Court of Appeal upheld the motions judge’s ruling.

On appeal, Darlene submitted that she in fact exercised the right of first refusal on behalf of Donald’s estate. However, there was no evidence of any right of Darlene to act on behalf of the estate. In fact, the third party specifically asked Darlene to produce proof of her authority to act on behalf of Donald’s estate, but Darlene refused to produce such evidence. “The appellant [Darlene] had many opportunities to establish the facts upon which she seeks to rely but chose not to do so. As a result, there was no evidence before the motions judge – and no evidence before this court on appeal – concerning the appellant’s ability to exercise the right of first refusal on behalf of the [Donald’s] estate.”

In assessing legal rights and positions, it is important to not only assess what those legal rights are, but to consider in what capacity we hold them.

Thank you for reading. Have a great weekend.
Paul Trudelle

17 Jan

The ultimate “selfie”: Video record your health care wishes

Suzana Popovic-Montag Estate & Trust, Estate Planning, Health / Medical, Hull on Estate and Succession Planning, Hull on Estates, Power of Attorney, Uncategorized 0 Comments

In an ideal situation, if you suffer a health crisis, you’ll be able to communicate your health care preferences directly to your doctors or hospital staff. But if you’re not able to communicate your health care wishes, you need someone to do that on your behalf.

Enter the Power of Attorney for Personal Care (or a similar health care directive document specified by your province). This document typically describes your health care preferences in end of life situations, and also names a substitute decision maker to make health care decisions on your behalf in the event you’re no longer able to.

This decision maker will look to your stated health care preferences in making decisions, but as you can imagine, it’s impossible to anticipate every medical situation. Canadian Virtual Hospice has an excellent article on the advantages and limitations of health care directives. To make the most of what a directive can do, Dying With Dignity has a very thorough planning kit that’s tailored to the requirements of each province:

Video option – the unselfish selfie

In addition to, or instead of, paper-based health care instructions, a recent U.S. article highlighted some reasons why a video directive may be a powerful tool in helping doctors and substitute decision makers arrive at an appropriate course of treatment.

A Texas-based company, MyDirectives, has developed a website and a smartphone app to help people record videos and upload them to an online cloud that doctors and loved ones can access with a code.

Let’s face it, in a medical emergency, there may be little or no opportunity to locate and read paper-based forms. But a video health care directive can be accessed bedside on a smartphone, with doctors, nurses and the substitute decision maker seeing firsthand the patient’s treatment preferences.

While video may not be a substitute for a written health care directive, it could offer powerful guidance in a difficult situation. Whether you record a video yourself, or use a third-party provider, it’s an idea worth considering.

Thank you for reading … Have a great day,
Suzana Popovic-Montag

 

10 Jan

It’s hard to read the label when you’re inside the bottle

Ian Hull Hull on Estates, Power of Attorney, Trustees, Uncategorized, Wills Tags: , 0 Comments

One quality often overlooked in this frantic information era of texts, tweets, and instagrams is clarity. Our communications and responses are faster than ever, and you’ve likely seen first-hand how clarity can suffer. In a perfect world, we’d have a friend by our side objectively reviewing each communication and setting us straight when our message wasn’t clear.

“Don’t put it that way – it sounds like you’re angry,” or “It’s not clear where you’re meeting, better spell it out.”

Of course, there is no objective friend by our side 24/7. And in our daily back and forth with friends and family, the lack of an objective voice usually doesn’t matter. If there is confusion, it’s easily resolved by a follow-up message. We may live inside our own little bottles, but reading the label “right” the first time doesn’t matter that much in our day-to-day living.

Clarity in estate planning – get outside the bottle

But what about communications that can have a more profound impact, like our estate plan, where we detail our final wishes for end-of-life care and the distribution of our assets? There are few tasks in which clarity is more important. You can’t send a final “clarifying” text from the grave, so you have one chance to get it right. And if you don’t have objective, outside advice, it’s remarkably easy to get it wrong. What is crystal clear to you may not be to others.

The recent case of a dying Florida man is an excellent example. The 70-year-old man was found intoxicated and unconscious outside of his nursing home. When doctors took off his shirt, they found the words “Do not resuscitate” tattooed on his chest, with a tattooed signature underneath:

While the message was quite clear on its face, doctors faced a dilemma. They had an unconscious, dying man in front of them, with a tattoo that told them to take no further action. Was this what the patient truly wanted? Was it a legally valid instruction, or an ironic joke? Doctors were aware of a case reported in a medical journal where a man had “DNR” tattooed on his chest and was admitted to hospital. When doctors saw the tattoo, they asked him if that was indeed his wish, and he said it wasn’t at all – he had lost a bet in a poker game and the tattoo was the result.

So, when it comes to your own planning, make clarity a priority. Objective, professional advice can ensure that your “message to the world” about your estate will both reflect your wishes and be read accurately by others. Take a look at the four-step approach taken by Toronto firm Creaghan McConnell Group in helping Canada’s leading families preserve and pass on wealth. Their step number one? Family clarity.

Make it your priority too – and take a pass on the tattoos!

Thank you for reading,
Ian Hull

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