Category: General Interest
Right from the start, 2021 is starting to look like it will be another extraordinary year of historic significance. In the world of estates, trusts, and capacity litigation, there was a decision released on January 5th where serious breaches of fiduciary duty by an attorney for property were found and the PGT was ordered to take over. The facts in Public Guardian and Trustee v. Cherneyko et al, 2021 ONSC 107, read like a law school case study and the reasons are worth noting.
Jean Cherneyko is a 90 year old woman. Jean did not have any children of her own. Her closest known relative was a niece in the US. By the time of the PGT application, Jean was in a long term care home. Prior to that, Jean lived alone in the same home that she had lived in since 1969. Jean had a friend named Tina who she had known for about five years. On August 15, 2019, Jean and Tina went to a lawyer’s office. Jean named Tina as her attorney for property and personal care. Jean also made a new Will which named Tina as the estate trustee and sole beneficiary of her estate. A week or so later on August 27th, Jean and Tina went to Jean’s bank where $250,000.00 was transferred to Tina, and $195,329.50 was transferred to Jean’s niece. Days later on August 31st, Jean was hospitalized for acute delirium and progressive cognitive decline. During Jean’s admission, Tina noted that Jean had become increasingly confused over the prior few months and that Jean exhibited lethargic behaviour and complained of bodily soreness. On September 1, 2019, Jean was diagnosed as being cognitively impaired. Thereafter, Jean was transferred to long term care on October 1st based on Tina’s authorization as Jean’s attorney for property. Short time after that, Tina’s son moved into Jean’s home and the PGT started to investigate in March, 2020 when the bank froze Jean’s accounts.
As a result of their investigation, the PGT brought an application to remove and replace Tina as Jean’s attorney for property. The PGT also sought to set aside the $250,000.00 transfer to Tina and the return of various other sums that were received by Tina, which totalled approximately $350,000.00.
First, the Court found that the transfer of $250,000.00 to Tina was not a gift. Tina failed to rebut the presumption of resulting trust for the gratuitous transfer. Tina put forth evidence that there was a bank manager who spoke to Jean at the time of the transfer, and that the banker told Jean that she would have still have enough money to live after the transfers to Tina and the her niece. This evidence was tendered through Tina’s affidavit without any direct evidence from the banker. The Court disregarded Tina’s reliance on the banker’s involvement because Tina herself had deposed that Jean was having “moments of delirium and irrationality, her condition fluctuated between lucidity and confusion” in late August, 2019 (para. 31) and there was no evidence that the banker was informed.
The Court also seriously questioned whether any of the payments to Tina were truly what “Jean wanted” because Jean’s power of attorney for property clearly stated that there was to be no compensation. The Court agreed with the PGT’s contention that Tina should not have paid herself $2,000.00 per month in compensation and on how that sum was unreasonably high given that Jean’s long term care costs were only $2,701.61 per month.
The value of the transfers, which was about a quarter of Jean’s net worth at the time, when considered in the context of Jean’s September 1st diagnosis also led the Court to find that Jean lacked capacity to gift Tina such a substantial sum.
The Court’s focus on context, timing, and proportionality as benchmarks in its analysis are very important for litigators and advisors to keep in mind.
Stayed tuned this week for Part 2 on Cherneyko: the breaches of fiduciary duty.
Thanks for reading,
When sick, elderly or injured patients are hospitalized, the hospital usually has a discussion with the patient or their substitute decision-maker about end-of-life decisions. In particular, there usually is a difficult discussion about the extent to which the patient is to be resuscitated in the event of heart stoppage. Often, the patient wants to be allowed a natural death, with no heroic measures to prolong life, such as intubation or other artificial life supports. Such decisions can be made for a number of reasons, such as the person’s religious beliefs, a desire to avoid the pain and possibly harmful effects of resuscitation efforts, or a concern about quality-of-life post-resuscitation.
(It has been argued that calling the decision a “DNR” is stigmatizing, and should be called an “Allow Natural Death” order instead.)
If a decision to forego resuscitation is made, a “Do Not Resuscitate” (“DNR”) order is completed. The decision is noted on the patient’s file, and often on the whiteboard by the hospital bed.
Difficulties can arise, however, when the person is not hospitalized at the time. If the person is at home and suffers an incident, the attending paramedics may have no way of knowing about any DNR decision. Ontario does not have any form of registry for DNR decisions, so paramedics have no way of searching on-line for DNR decisions.
In an interview with CBC Judy Nairn, Executive Director of Hospice Waterloo Region, suggested that people at home with concerns about their DNR order being honoured should put it on their fridge door: paramedics always look their first.
The news report referred to a 67-year-old woman who was so concerned that her DNR wishes be respected that she wears her DNR request around her neck.
It is not enough just to make the decision about resuscitation efforts. It is important to take steps to ensure that the decision, once made, is respected and acted upon.
Thank you for reading.
 For this reason, the frail and elderly should also always keep contact information and details of any medical conditions and medications on their fridge.
This week marked the airing of the final episodes of Jeopardy! featuring Alex Trebek as host.
Alex Trebek died on November 8, 2020 at the age of 80. Alex announced in March 2019 that he had stage IV pancreatic cancer. Despite this, he continued his hosting duties. He taped his final episode on October 29, 2020, which is being aired on January 8, 2021.
Alex’s openness and honesty about his diagnosis had a significant impact on awareness of pancreatic cancer and the need for early screening. Alex has spoken publicly about the need for more attention and awareness of the disease. He regrets not recognizing sooner the symptoms of persistent stomach pain, mid-back pain, unexplained weight loss and yellowing of the skin and eyes. See his public service announcement, here.
Alex was born in Canada. He received the Order of Canada in 2017. He also received many other awards and recognitions honouring his contributions to television and geographic education.
To me, Alex Trebek is and always will be Jeopardy! My father loved the program, which he called, in his French accent, “G-O pardy!”. My mother, at 94, is still an avid fan. We know better than to try to call her between 7:30 and 8 pm.
Thank you for reading.
As 2020 has come to a close, we all fervently hope that the coming year will be better than the last.
In that spirit of optimism, I have reflected on some resolutions as a lawyer.
- Improve Health – But, make it specific in some way. Like resolving to run in a 10k race later in the year.
- Sharpen Communication – Work to better client and colleague communication and consultation.
- Provide Recognition – It takes little effort to recognize the efforts of those around you, and to provide praise, and celebrate achievements.
- Finish CPD – Do those Continuing Professional Development hours early and before it becomes a worry.
- Get Organized – Attend to that one matter that you routinely avoid. Admit it. You have one.
- Manage Time – Make it specific in some way. Hold incoming emails until later in the day, instead of constantly interrupting workflow.
- Embrace New Technologies – It takes time and is anxiety making, but is usually a benefit. This is then followed by Cybersecurity nervousness.
- Seize the Future – Think about the future in a different way. Law and work itself have changed significantly in the last year. Such as working from home.
- Drink Less. The pandemic put an end to in-person networking, seminars, and social events but, this might be followed by more drinking. After the “Spanish Flu” it was the “Roaring Twenties”.
- Be Grateful – That the last year is over and although we all still have to be vigilant, this pandemic will end.
Studies have shown that only a small percentage of New Year’s resolutions actually get implemented! Good luck!
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On December 2, 2020, we blogged on Germany’s recent decision to expand pension payments to spouses of Holocaust survivors who are now deceased. Under the amended criteria, spouses are entitled to this payment for up to nine months. Prior to this decision, pension payments expired upon the survivor’s death.
Deeply intrigued by this dark period in our relatively recent history and the effects it continues to have on the heirs and estates of survivors in our modern world, we have again chosen to focus our blog on Holocaust reparations – this time from the French government.
In 2014, France agreed to pay reparations, in the amount of $60 million to certain qualifying Holocaust survivors, their heirs and their estates (known as the “The 2014 Agreement”). This Agreement was proposed in response to a lawsuit initiated by non-French survivors who had been deported to death camps from France via S.N.C.F., which was a state-owned railway system. Survivors argued that S.N.C.F. was complicit with the Nazis’ premeditated murders during World War 2. France ultimately agreed to pay survivors who had been transported to concentration camps via S.N.C.F. reparations in exchange for recipients agreeing to renounce their right to sue.
The 2014 Agreement sought to distribute reparations to victims who had been largely ignored under prior agreements and settlements.
Former Ambassador and the State Department’s expert advisor on Holocaust issues, Stuart Eizenstat, assisted in negotiating this Agreement. As a result of the Agreement, forty-nine survivors received approximately $400,000 in reparations. Thirty-two spouses of survivors who had already passed on received up to $100,000 under this Agreement. Heirs and estates of deportees were also eligible for payment.
Holocaust survivors constitute a unique population of individuals who were robbed of the opportunity to inherit wealth. Though reparations cannot make up for the suffering of the past, they represent a recognition of fault and soothe, for some, the pain of loss.
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Suzana Popovic-Montag & Tori Joseph
In the 1944 film-noir classic Double Indemnity, Fred MacMurray plays Walter Neff, a successful salesman at Pacific All Risk Insurance. He has an affair with Phyllis Dietrichson, the wife of a client, played by Barbara Stanwyck, and the two concoct a classic caper: To kill her husband, make it look like an accident, and collect the insurance money.
The title takes its name from a clause in some life insurance policies that would double a benefit in the case of accidental death, like falling off a train, the fate that allegedly befell Mr. Dietrichson and energizes a very suspicious Edward G. Robinson to find out the truth.
While Billy Wilder’s classic film trips up the protagonists’ best-laid plans at several turns, the aim of the insurance company is to uncover a fraud (it would be up to the courts to determine the killer). At law, such a concept is caught by what’s known as the Slayer Rule.
Cleaver et al. v Mutual Reserve Fund Life Association established a general rule of public policy that forbids a criminal from profiting from his or her own wrongdoing. The facts were these: A husband had taken out an insurance policy for the benefit of his wife. The policy was to pay out in the event of his death to the wife, should she be alive, otherwise to his estate. The husband died leaving a Will, the wife was convicted and imprisoned for poisoning him, and Cleaver was appointed administrator of her assets. The insurance benefit was denied to the wife on public policy grounds, and was instead paid out to the estate. In Latin, it’s known as ex turpi causa (“from a dishonourable cause an action does not arise”) and it has been Canadian law since Cleaver was decided in 1892.
One of the most important developments over the last century has been the critical element of moral culpability under section 16 of the Criminal Code of Canada as it relates to the Slayer Rule and insurance entitlements. In the 2012 decision Dhingra v. Dhingra Estate, the Ontario Court of Appeal reversed a lower court’s decision that applied the Rule to a person found not criminally responsible (NCR), holding,
“It seems to me that if a person found not criminally responsible on account of mental disorder is not “morally responsible” for his or her act, there is no rationale for applying the rule of public policy. That rule is founded in the theory that people should not profit from their crimes or, more broadly, by their own wrongs. […] It was an error for the application judge to describe the appellant as having “committed second degree murder.”
So, while an NCR designation may permit the courts to clear a path for the release of the insurance benefit, the following scenarios are still treated as black letter law when a killer strikes, is in their right mind, and:
1) Where insurance proceeds are in question;
2) Where the slayer is a beneficiary under a will;
3) Where the slayer is an heir of his intestate victim;
4) Where the slayer and the deceased were joint tenants.
Thanks for reading!
Ian Hull and Daniel Enright
A legal claim “in personam” is against a particular person. My claim against David for $100 for an unpaid debt is an in personam claim. It affects him alone. This is to be contrasted with an “in rem” claim, which is Latin for “against or about a thing”. In estate litigation, when we are proving the validity of a Will, the proceeding is said to be “in rem”, as the determination does not just affect the beneficiaries, but third parties who may be called upon to rely on the determination of validity. A judgment in rem is said to bind “the whole world.”
In a recent article published at 24 Green Bag 2d 15, Florence Ashley discusses in rem case names. The article, “Humorous Styles of Cause in In Rem Actions: A Comparison of Canada and the United States”, lists the author’s selection of the fourteen funniest in rem styles of cause. Read the article for the author’s selection justification.
- South Dakota v. Fifteen Impounded Cats (SD 2010);
- Case of One 1985 Nissan 300ZX, VIN: JN1C214SFX069854 (4th Cir 1989);
- United States v. One Tyrannosauras Bataar Skeleton (SDNY 2013);
- United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls (D Wisc 1976);
- United States v. 11 ¼ Dozen Packages of Articles Labeled in Part Mrs. Moffat’s Shoo-Fly Powders for Drunkenness (WDNY 1941);
- United States v. One Solid Gold Object in Form of a Rooster (D Nev 1960);
- United States v. Approximately Thirteen Unoccupied Burial Plots Situated at Forest Lawn Memorial Park’s Hollywood Hills Cemetary [sic] (CD Cal 2017);
- United States v. Ninety-Five Barrels (More or Less) Alleged Apple Cider Vinegar (SCOTUS 1924);
- United States v. Approximately 64,695 Pounds of Shark Fins (9th Cir 2008);
- United States v. One Package of Japanese Pessaries (2d Cir 1936);
- Royal Bank of Canada v. “I Wonder” (The) (Can Fed Ct 1985);
- A Quantity of Copies of Books v. Kansas (SCOTUS 1973);
- United States v. 2,507 Live Canary-Winged Parakeets (SD Fla 1988); and
- 62 Cases of Jam v. United States (SCOTUS 1951).
Note that only one of the cases is Canadian. In the article, the author explores WHY Canadian in rem titles of proceedings are just not as funny.
Thanks for reading.
One of the assets of many estates is a big container of pennies. What can be done with these tiny assets?
In Canada, production of the penny stopped in 2014. However, the penny retains its value. Although the penny has been phased out, it still remains legal tender.
Banks will still accept pennies. However, most banks will require that they be rolled.
Don’t want to roll? Coinstar has kiosks around the city where you can dump your coins and convert them into cash for an 11.9% fee. If you choose to receive the value on a gift card, there is no fee.
Transporting them to the bank will not be easy. As each penny weighs approximately 2.5 grams (weight varies depending on composition), a kilo of pennies would only have a value of $4.00 (or $1.81 a pound).
[Fun fact: one pound of dimes, quarters and half-dollars all have the same value: $20. (Figures are for US coins. Canadian values should be similar, or close enough.) Good to know if you are in the midst of a looting and are not sure which bag of money to take. Pennies and nickels don’t fall into this pattern. Best leave the pennies and nickels behind.]
Part of the reason for eliminating the use of the penny was financial: the cost of producing and distributing each penny was 1.6 cents in 2012. Other reasons given by the Royal Canadian Mint include “the increased accumulation of pennies by Canadians in their households” (ie, that giant jar of pennies every estate seems to have), environmental considerations and the significant handling costs the penny imposed on the economy.
According to a 2014 report, the Royal Canadian Mint has redeemed 4 billion pennies. However, 31 billion were still in circulation at the time.
The redeemed pennies are being recycled. The pennies are first sorted according to metal content. Pre 1997 pennies are between 95% and 98% copper. Post-2000 pennies are 94% steel, with copper plating.
Before taking your pennies to the bank, you may want to sort through them first. Some pennies have significant collector value. For example, a certain 1936 Canadian penny, the “dot” coin, has the likeness of King George V on one side. New coins were to be made following George V’s death, using the likeness of his heir apparent Edward VIII. However, Edward VIII abdicated in 1936. The Royal Canadian Mint didn’t have a mold of the “new guy”, George VI, so the mint made pennies in 1937 using the prior monarch. The pennies have the year “1936”, with a raised dot below the date to signify that they were in fact made in 1937. In 2013, one of these sold for $253,000 US.
Mentalfloss has a list of other things to do with pennies, other than depositing them at the bank. The list includes putting them in a sock, freezing them, and using them as a cold compress. Another option is to glue them onto other things, like a vase, coaster or picture frame. Penny floors, anyone?
As Eddie Shack used to say, “Look after the nickels and dimes, and the dollars will look after themselves.”
Thanks for reading.
“To weep is to make less the depth of grief.”
(Henry VI, Part III Act II, Scene I)
The numbers are breathtaking: over 12,000 Canadians have died of covid-19. Between covid and non-covid deaths, over 1.2 million Canadians are in some stage of grief. With the holidays just over the horizon, and the numbers showing no signs of ebbing, this time of year, already fraught for so many, is going to pose new and difficult challenges for so many of us. And according to Naheed Dosani, a palliative care physician and health justice activist, we’re not talking about grief enough.
In a recent interview with CBC News, Mr. Dosani shared his experience with “grief circles,” a gathering of colleagues where tears laughter and memories are shared in honour of the people for whom they have cared. Grief circles have moved online, but the number of participants are increasing, partly, he says, “because there’s more grief than ever before.” Shelly Cory, executive director of Canadian Virtual Hospice, sees this as “the hidden crisis of the whole pandemic.” Cory is a co-founder of the Canadian Grief Alliance, a coalition of leaders in bereavement and grief:
“Canadians have been robbed of goodbyes with dying friends and family or people they care about and forced to grieve in isolation without funeral rites. They and those working on the front lines of health care are at heightened risk for prolonged, complicated grief marked by depression, and the risk of suicide. Existing grief services are fragmented, under-funded and insufficient. Left unaddressed, significant long-term social, health and economic impacts will result.”
While Ms. Cory and Mr. Dosani are urging the federal government to implement a National Grief Strategy, the stark numbers reveal a tragic truth: we’re not talking to each other enough about grief. While lockdowns and safety measures may be preventing us from being present with a loved one at the end, grief and grieving is itself in a kind of quarantine. Unable to hug her mother and father-in-law after the death of her husband, Heather Ramey recently told Maclean’s magazine, “I want something more for my children other than this.”
Complicated grief, more than just prolonged sadness, can have devastating effects including PTSD, depression and suicidal thoughts. Pandemic related isolation and loneliness, and in particular around the holidays, can make matters more pronounced, or even worse.
It’s hard, it’s sad, but grief is still a process like any other. While grief is unique to each of us, the Centre of Addiction and Mental Health (“CAMH”) reminds us of a few suggestions to get started:
• Get clarity by naming the struggle and identify five things that have been hard, then tackle
them one at a time.
• One day at a time. If we only focus on smaller issues in a given day, we break things up
into smaller, more manageable pieces.
• Self-care, self-care, self-care. While grief can often lead us to take care of others, check in
with yourself every day. Take some time for yourself and be compassionate with yourself.
• Talk to someone. As the saying goes, “a burden shared, is a burden halved.”
It’s this final point that remains so challenging during a lockdown.
While there are several online resources and articles from local hospitals to the Harvard Business Review, it’s critical to remember to reach out and show your support, or ask for support, during a difficult time. Be it a front-line health worker like Mr. Dosani, or a colleague from years ago, or a friend you haven’t heard from in a few days: We need to talk each other more.
Ian Hull and Daniel Enright
Attending a Virtual Conference: Insights from the Family Dispute Resolution Institute of Ontario Conference
On November 16, 2020, the Family Dispute Resolution Institute of Ontario (“FDRIO”) held its annual Conference. Hull & Hull LLP was proud to once again sponsor this excellent event. Due to social distancing requirements the Conference was completely virtual, including presentations, break-out sessions, and wellness breaks.
Although the Conference is geared toward family lawyers and professionals working in the field of family dispute resolution, estates matters are often impacted by family tension and disagreement. Consequently, family dispute resolution strategies and insights are valuable tools for any estates practitioner and particularly for estates litigators.
Addressing Anti-Black Racism and Confronting Unconscious Bias
This year’s keynote speaker was Moya Teklu, a member of Legal Aid Ontario’s General Counsel’s Office and Adjunct Professor at the University of Toronto – Faculty of Law. Ms. Teklu delivered an impactful presentation entitled “Addressing Anti-Black Racism” and provided tips for approaching discussions about race, racism, privilege, and marginalization.
Unconscious bias refers to the rapid judgements about other people and situations that a person makes without awareness of their own thought process. These judgements are formed based on a person’s lived experience, cultural context, and personal background. Legal professionals have a responsibility to develop cultural competencies and awareness of unconscious biases to prevent their interference with the lawyer-client relationship and advocacy. Ms. Teklu’s presentation incorporated many interactive exercises to teach legal professionals how to critically confront and to reduce their unconscious biases in order to combat anti-Black racism within our profession, the legal system, and the community at large.
Best Practices for Technology in the Time of COVID-19
Legal technology has become a hot topic over the past nine months as legal professionals have adapted to the challenges posed by the COVID-19 pandemic. While technology has allowed legal professionals to carry on work during these unprecedented times, many of the tools we use every day can increase law firms’ susceptibility to cybersecurity threats.
Speakers Colm Brannigan, Mauro Gris, Steven Bradley, and Vicky Ringuette addressed these concerns directly in their presentation entitled “A Brave New Techy World – Advanced Options for Your Practice.” The Presenters touched on product guidance when using platforms including Google Hangouts, Zoom, and Cisco WebEx in order to create safe meeting environments for practitioners and their clients. Some security tips for video conferences include avoiding taking screenshots, using secure passwords, and regularly updating software.
Hull & Hull LLP congratulates FDRIO on yet another informative Conference. For more information on the Conference, visit FDRIO’s website.
Thanks for reading!