Category: General Interest
Ontario has officially declared a state of emergency amid the COVID-19 pandemic, and efforts to quell the spread of the coronavirus are now stronger than ever. Indeed, the Federal Government is urging everyone to engage in social distancing, and the courts are no exception.
On March 15, 2020, the Superior Court of Justice published a Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings (the “Notice”), wherein it announced the suspension of Superior Court of Justice regular operations.
Specifically, the Notice states that all criminal, family and civil matters scheduled to be heard on or after March 17, 2020 are adjourned except for urgent and emergency matters. Matters considered to be “urgent” are set out in the Notice and include motions and applications related to public health and safety and COVID-19; the safety of a child or parent; and time-sensitive civil motions with significant financial repercussions if not heard, among others.
To bring an urgent matter, the motion and application materials can be filed with the court by email. Notably, where it is not possible to email a sworn affidavit, an unsworn affidavit can be delivered as long as the affiant participates in any telephone or videoconference hearing to swear or affirm the affidavit. Urgent matters may be heard and determined in writing, by teleconference or videoconference, unless the court determines that an in-person hearing is necessary and safe.
Although people are being advised to avoid unnecessary attendances at Court, they nevertheless remain open and parties can continue to process “regular filings”. However, the flexible procedures that have been put in place for urgent matters do not extend to regular filings, which remain subject to the Rules of Civil Procedure.
The court’s response to COVID-19 is a prime example of how the legal system as a whole is being forced to lean on technology in these unusual and uncertain times. While many legal professionals have already adopted digital practices, the courts continue to be behind the times. The Auditor General’s latest audit of Ontario’s court system found that “the Ministry’s pace in modernizing the court system remained slow, and the system is still heavily paper-based, making it inefficient and therefore keeping it from realizing potential cost savings”. Perhaps this period will give the much-needed impetus for courts to modernize their operations by using electronic service, filing, hearings, and document management more routinely. This would likely be a welcome change for all.
Thanks for reading and stay safe!
The Victorians consigned themselves to more subtlety in their works of entertainment than we at present do. To all appearances, theirs was decidedly not an age capable of enjoying rap music and HBO comedies. The spiciest themes in their art, therefore, would include marriage intrigues, duels, financial scandals – or, as we see in George Eliot’s Middlemarch – controversial wills and eccentric testators.
The wills and estates subplot in Middlemarch is comprised of all the ingredients that you may see in a modern legal drama: a rich and erratic miser (Mr. Featherstone) manipulating his relatives with implied promises of future bequests; the idle protégée (Fred Vincy) who accumulates debts with the idea that the testator will bail him out; concern over the testator’s attachment to his young caregiver (Mary Garth); a train of impoverished relatives ill-concealing their greedy expectations; and much discussion on why “blood” was deserving and why “strangers” were not.
It is remarkable how little has changed in a century or so with respect to wills and estates. Then, as now, a Mr. Featherstone who promises a bequest, receives consideration, and then goes back on his word, may be found to have broken a binding contract – as occurred in Legeas v. Trusts & Guarantee Co. Likewise, a ruling of unjust enrichment (Moore v. Sweet) or specific performance (Folsetter v. Yorkshire & Canadian Trust Co.) could be made against him/his estate.
Still relevant today are the challenges of undue influence and incapacity. In the story, the scheming relatives are alarmed at Mr. Featherstone’s connection to Ms. Garth. She, all too aware of an undue influence allegation, refuses her patron’s money and ignores him when he orders her, while on his deathbed, to destroy his wills. In return, he throws his cane at her, which is perhaps evidence of incapacity.
Much as we may laugh at the relatives in Middlemarch who repeatedly visit Mr. Featherstone to remind him of his obligations to his “own flesh and blood”, our own law continues to ascribe significance to bloodlines. The Succession Law Reform Act defines “child” based upon conception, and the statute’s intestacy provisions speak of “issue” and the “nearest degree” of kindred. As many an adopted child and step-child knows, with respect to estates law, blood still matters.
There are some marked differences between Eliot’s England and modern Canada. Whereas Fred Vincy was loaned money in part because the creditors knew he was favoured by Mr. Featherstone, we now have businesses openly and explicitly offering advances to those who “have an inheritance coming”. Although we still use the Banks v. Goodfellow test for evaluating capacity, there have been some innovations, such as capacity assessments done after death and more nuanced, neuroscientific understandings of capacity. Lastly, if Mr. Featherstone had died in Ontario in 2020, he could not take as much comfort in tantalizing relatives and then crushing their hopes, for we have dependency support laws whereby testators must provide “adequate provision” for their “dependents”. Perhaps the creation of such laws was influenced, in part, by the ghoulish conduct of such Victorian literary characters.
Thank you for reading. Enjoy the rest of your day!
Suzana Popovic-Montag and Devin McMurtry.
Yesterday, I blogged about estate planning for cryptocurrency, a type of digital asset. Today, I provide a snapshot of what happens to some of your other digital assets when you die.
Facebook: When a Facebook user dies, their profile can either be memorialized or permanently deleted. The Facebook user can opt for one or the other while they’re still living. If a user does not choose to have their profile permanently deleted, Facebook will automatically memorialize the profile whenever they become aware of the user’s death. When a user proactively chooses to memorialize their profile, they can appoint a “legacy contact” to manage their memorialized profile. The legacy contact will have the authority to manage the memorialized profile but will not be permitted to log in to the deceased’s account, read the deceased’s messages, and add or remove friends.
Instagram: When an Instagram user dies, their account can either be memorialized or deleted. Anyone can request for a deceased person’s account to be memorialized, but only an immediate family member can request for an account to be deleted. Instagram will not memorialize an account without sufficient proof of death, such as a link to an obituary or news article. To delete an account, the requester is required to verify that they are an immediate family member by providing documentation such as the deceased person’s birth certificate, death certificate, or a Certificate of Appointment of Estate Trustee for the deceased’s estate.
Twitter: When a Twitter user dies, a person authorized to act on behalf of the deceased’s estate or a verified immediate family member of the deceased can request to have the deceased person’s account deactivated. In order to complete this request, Twitter requires a copy of the requester’s ID and a copy of the deceased’s death certificate. Twitter also does not permit anyone to access the deceased person’s account.
LinkedIn: When a LinkedIn user dies, anyone can request to have that person’s LinkedIn profile removed. A person can request that an account be removed by filling out a form with information on the deceased and submitting the form to LinkedIn for their review.
Google: When a Google user dies, their immediate family members and/or the executor of their estate can request to close the deceased’s account. Google will not permit anyone to log into the deceased person’s account; however, individuals can ask Google to provide content from the account. With respect to these requests, a court order issued in the United States is apparently required before Google releases any information. To circumvent this, Google users can use their Inactive Account Manager to automatically share their data with “trusted contacts” after a period of inactivity.
As illustrated by the above, different online platforms restrict a family member’s and/or executor’s access to a deceased person’s online accounts to varying degrees. Notably, most platforms will not allow anyone to log in to a deceased person’s account. As such, if a person would like trusted relatives or friends to be able to access their online accounts following their death, they may want to take steps to ensure that their login credentials will be available to those trusted persons.
Thanks for reading!
There’s a really good chance that if you live anywhere in the world that is not completely disconnected from the rest of society, you would have heard about COVID-19, and the fact that it has officially reached every single continent (except for Antarctica). The World Health Organization (WHO) has maintained that the containment of COVID-19 must be the top priority for all countries, given the impact it may have on public health, the economy and social and political issues.
Around 1 out of every 6 people who gets COVID-19 becomes seriously ill and develops difficulty breathing. Older people, and those with underlying medical problems like high blood pressure, heart problems or diabetes, are more likely to develop serious illness.
In a statement released on March 4, 2020, the WHO indicated “although COVID-19 presents an acute threat now, it is absolutely essential that countries do not lose this opportunity to strengthen their preparedness systems.”
The value of preparedness is being played out in a Seattle suburb, where COVID-19 has spread to a local nursing home, resulting in a quarantine of residents and staff. In the US, nursing homes are being criticized for being incubators of epidemics, with relaxed infection-control practices and low staffing rates, among other issues. Friends and family of residents in this Seattle facility are in an unenviable position, worrying about the health and safety of their loved ones and considering the gut-wrenching possibility that their loved ones might die alone. To read more about this issue, click here.
With the number of confirmed positive cases of COVID-19 on the rise in Ontario, I wonder how our long-term facilities are preparing to deal with an outbreak should one occur?
In the spirit of prevention, it is important to consider reducing the frequency of visits with our elderly loved ones, and spreading knowledge and information about hand-washing and other preventative measures.
For more information about COVID-19, click the links below:
Government of Ontario: https://www.ontario.ca/page/2019-novel-coronavirus
World Health Organization: https://www.who.int/emergencies/diseases/novel-coronavirus-2019
Thanks for reading!
This blog is the second and final blog in my series discussing estates-related topics in the film The Grand Budapest Hotel. While the first part focused on the application of forfeiture rules in the context of a testator’s murder, this blog specifically discusses the policy considerations that arise as a result of the further Last Will and Testament executed by one of the film’s characters, Madame D.
As a brief refresher, late in the film, a further Last Will and Testament executed by Madame D is discovered, the operation of which is only to be given effect in the event of Madame D’s death by murder. While the concept makes for an interesting twist in the film, in reality the purported condition precedent that the Will takes effect only upon death by murder likely means nothing in the context of Madame D’s estate planning.
Part I of Ontario’s Succession Law Reform Act specifically contemplates that a Will is revoked by, among other actions, the execution of a subsequent Will made in accordance with the provisions of that section. It is not made clear in the film which of Madame D’s two Wills were executed last. If the further Will was executed most recently and complied with all of the requirements of due execution, the prior Will would have been revoked and the second Will would likely prevail irrespective of the condition precedent.
Alternatively, a Will may also be revoked by a written direction of the testator to do so. Failure to expressly revoke a prior Will can potentially create problematic administration scenarios in which a testator may have believed, albeit mistakenly, that a prior Will had been revoked when in fact it had not.
While executing a Will in accordance with the provisions at Part I of the Succession Law Reform Act is sufficient in and of itself to revoke prior Wills, it is nonetheless prudent from an estate planning perspective to include a written intention to revoke prior Wills (provided, of course, the testator intends to do so).
Separately, even if we were to disregard the provisions of the Succession Law Reform Act, there would be a number of practical policy concerns if a Will whose effects were subject to a condition precedent. Notably, a reasonable debate could arise between beneficiaries in scenarios in which the cause of death is ultimately unclear.
The film suggests Madame D’s reason for executing a further Will to take effect on her murder is to ensure her nephew could not benefit from her demise at his hand. However, as discussed in Tuesday’s blog, that goal is accomplished by the operation of the slayer rule. Alternatively, Madame D could have relied on a common estate planning technique by making her nephew’s interest in her estate, rather than the Will in its entirety, subject to a condition precedent.
While Ontario prohibits conditions precedent that are deemed to be contrary to public policy, such as restraining marriage or promoting discriminatory behaviour, other conditions precedent are recognized at law. For example, Madame D could have simply made Dmitri’s interest contingent on his reaching a certain age, or reaching a certain milestone in his life, such as graduating from university. Instead, the purported condition precedent that the further Will was to take effect on her murder likely has no effect at all, provided the evidence shows it was executed after the initial Will and in compliance with the provisions of Part I of the Succession Law Reform Act.
Thanks for reading.
Recently, I experienced a series of coincidences involving American filmmaker Wes Anderson. In the span of a handful of days, I came across the newly-released trailer of his upcoming film, The French Dispatch, and had the opportunity to revisit his 2014 hit, The Grand Budapest Hotel.
Not having seen the latter in several years, I had entirely forgotten a key plot point involving a handful of curious estate planning decisions. Although the film was released six years ago, I nonetheless attach a mild spoiler warning.
The plot of the film revolves around a specific bequest of a work of art made by one of the characters in the film, Madame D. The painting, Boy with Apple, is left to Ralph Fiennes’ character, Gustave H, the proprietor of the film’s namesake hotel, per Madame D’s (purported) Last Will and Testament.
Her decision to leave the painting to Gustave, rather than her nephew, Dmitri, creates a firestorm of controversy, not least of all because Dmitri accuses Gustave of murdering his aunt in order to secure
his entitlement to Boy with Apple. In reality, it is strongly hinted in the film that Dmitri is responsible for her murder. As an additional twist, a further Last Will and Testament executed by Madame D is discovered later, which appears to leave the entire residue of her estate, rather than just Boy with Apple, to Gustave. However, it is stated in the film that this further Last Will is only to be given effect in the event that Madame D is murdered.
This single plot point raises a number of points of discussion and policy concerns as to what would transpire if the film were set in Ontario. This blog will explore the nature of Dmitri’s and Gustave’s potential entitlements in the Estate.
Prior blogs have explored the concept of common law forfeiture rules in Canada, which preclude an individual from deriving a benefit from their own morally culpable conduct. Colloquially known as the “slayer rule” in the context of a testator-beneficiary relationship, a beneficiary who is found to have caused the unlawful death of a testator will be deemed at common law to have predeceased the testator, thereby extinguishing any interest in the testator’s estate.
In the film, Dmitri accuses Gustave of the murder of Madame D. In the ordinary course, a conviction proper is not a necessary precondition to the applicability of the slayer rule. Rather, common law suggests that the rule applies strictly in the event that the beneficiary’s deliberate act caused the death of the testator. In theory, Gustave’s interest in the estate of Madame D could be in jeopardy despite the lack of culpability. In practice, despite his efforts to frame Gustave, the evidence would likely show that Dmitri was the culprit, thereby extinguishing any interest in Madame D’s estate.
Of course, the further Last Will purportedly being given effect only in the event a murder adds a further layer of discussion, and will be explored in greater detail in part 2 of this blog.
Thanks for reading.
This Sunday February 16, 2020 the NBA All-Star game will be played in Chicago. It is estimated that seven million people will watch that one game, and that about 450 million people are involved with basketball around the world annually. Forbes magazine has estimated the value of the 30 NBA teams at over 50 billion dollars with the Toronto Raptors valued at 1.7 billion.
On December 21, 1891 the game of basketball was invented by Canadian James Naismith. He was born on November 6, 1861 in Almonte Ontario about 50 kilometers west of Ottawa. Yet, the inventor of the game, James Naismith, never profited from any of this. In fact, he was generally in favour of advancing good values through sport and not profit. His estate did not profit either. However, his original two-page rules of the game of “Basket Ball” from 1891 were passed down to his family.
On December 10, 2010 the rules were purchased at Sotheby’s auction for a record 4.3 million dollars by David and Suzanne Booth. The couple then donated the original rules of the game of “Basket Ball” to the University of Kansas, where James Naismith had been director of athletics until retiring in 1937 at the age of 76. He died on November 28, 1939 at his home in Lawrence Kansas. The family heirs of James Naismith took the proceeds from the sale of the original rules and donated the money to the Naismith International Basketball Foundation charitable organization.
A notable legacy in a succession of events. The game of life played well, starting with James Naismith, then David and Suzanne Booth, and then the family and heirs of James Naismith!
Enjoy the game!
Today’s blog is Part 2 in my discussion of a New Yorker article by Arthur Krystal that seeks to present a realistic view of aging. Yesterday I reviewed some of the factors in the article that pointed towards the idea that we improve as we age. Today I will review the points raised in support of what the author considers to be the “truth” about aging.
I think the following sentence really sums up an important (but somewhat bleak) point that the author is making: “There is, of course, a chance that you may be happier at eighty than you were at twenty or forty, but you’re going to feel much worse.”
The article considers the physical effects of aging, as well as mental ones, namely dementia. Although we continue to explore ways of detecting, predicting, and treating dementia, we do not yet have a cure for the disease.
The New Yorker article also summarizes a (possibly even more bleak) argument made in an essay published in The Atlantic in 2014, with the title “Why I Hope to Die at 75”. The author of that article, Ezekial J. Emanuel, argues that by age 75, most people will have a difficult time generating creative and original thoughts, or being productive. Emanual doesn’t plan on killing himself at 75, but states that he won’t take steps towards actively prolonging his life, such as cancer-screening tests.
Last year I blogged about another article that discussed aging, and the concept of how we can live better, now that we are living longer. That article considered the work being done related to anti-aging and the creation of products to make older people’s lives easier. I think this is a salient point given our aging population, and is also relevant to the points made in Krystal’s New Yorker piece. Although we can admit that there are physical challenges that arise with aging, there are also ways those challenges can be ameliorated, and work continues to be done in this area.
I admit that, at the present time, I have very little authority or personal experience with aging, as it is discussed in the article. While I certainly see the author’s point about the downsides of aging, I think I will choose to favour the more optimistic view as outlined in yesterday’s blog.
Thanks for reading,
The following other blog posts may also be of interest to you:
In late 2019, an article in The New Yorker asked the question: “Why can’t we tell the truth about aging?” The author, Arthur Krystal, considers several aspects of aging, with what appears to be the aim of presenting a realistic portrait of what it is truly like to get older. I thought there were a lot of interesting points mentioned, so in Part 1 of this blog (today) and Part 2 (tomorrow), I will be considering some of those points.
For today’s blog, I will review some of the author’s points relating to the idea that we improve as we age (although the author certainly does not appear to embrace this view). Tomorrow’s blog will consider some of the more negative views and aspects of aging.
The article starts off by listing a number of recent books about aging, and compares it to the more popular view from about 50 years ago that aging is something “we do not care to face”. These days, the trend has moved towards celebrating aging, and looking at it in a positive and optimistic light. The literature is clearly capturing this view, with titles such as “Better with Age: The Psychology of Successful Aging”.
Some of the authors of the books mentioned state that the older brain works “in a more synchronized way” and the structure of the brain is altered with aging in ways that boost creativity.
There is also an interesting discussion about whether we get happier as we age. This concept seems to make sense if we consider notions such as being more comfortable in our own skin, and experiencing less social anxiety as we get older. The article mentions a study indicating that happiness over the course of our lives follows a U-shaped curve where we are happiest as children and in old age (and least happy in the middle of our lives). Apparently, however, there has been some question as to the accuracy of this curve for several reasons, the simplest one being that happy older people may be more likely to participate in happiness surveys than seniors who feel miserable, unsatisfied, and apathetic.
I quite like the sentiment expressed by Helen Small, a professor at the University of Oxford, as summarized in the article, that “our lives accrue meaning over time, and therefore the story of the self is not complete until it experiences old age—the stage of life that helps us grasp who we are and what our life has meant.”
Thanks for reading and I hope you will join me for part 2 tomorrow!
Other blog posts that may be of interest:
St. Mark Preaching in Alexandria is an impressive, substantial work: it measures 3.47 m by 7.70 m.
Gentille Bellini started the canvas in July 1504. However, he died in February, 1507, before the work was completed. The painting was eventually completed in March, 1507, by Gentille’s brother, Giovanni.
It is believed that Gentille asked Giovanni to complete the painting before Gentille died. Giovanni refused. Gentille then prepared a will in which Giovanni was to be given a collection of drawings from their father and one of the founders of the Renaissance style of painting, Jacopo Bellini, but only on the condition that Giovanni complete the painting.
Conditions precedent, although rare, are not unheard of. Consider a will that provides that the beneficiary can inherit a $300m estate if he can spend $30m in 30 days (Brewster’s Millions), a will that provides for the residue of an estate to pass to “the mother who has since my death given birth in Toronto to the greatest number of children” (Millar Estate), or a will that provides that the beneficiary can inherit a substantial gift, but only if he or she spends the night in a (haunted) house (just about every Scooby-Doo episode).
However, wills with conditions can be fraught with difficulty. There are issues of uncertainty or even impossibility of the condition. They can be contrary to public policy. The condition may also be considered to be “repugnant” to the nature of the gift. An issue arises as to whether the condition is a condition precedent, in which the gift may fail in its entirety, or a condition subsequent, in which the gift may stand but the condition may fail. Great care in drafting such clauses is required.
Thank you for reading.
 Fun fact: Yes, the Bellini cocktail is named after Giovanni Bellini. Apparently, the pink colour of the peach puree and prosecco drink reminded its inventor, Giuseppe Cipriani of Harry’s Bar, Venice, of the colour of a toga of a saint in one of Giovanni’s paintings.