Category: General Interest

21 Feb

Policy and Estate Planning in Film

Garrett Horrocks Disappointed Beneficiaries, Estate & Trust, Estate Planning, General Interest, Hull on Estate and Succession Planning, In the News, Public Policy 0 Comments

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Will was executed most recently and complied with all of the requirements of due execution, the prior Will would have been revoked and the second Will would likely prevail irrespective of the condition precedent.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problematic administration scenarios in which a testator may have believed, albeit mistakenly, that a prior Will had been revoked when in fact it had not.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.

Garrett Horrocks

18 Feb

Forfeiture in Film: The Slayer Rule in The Grand Budapest Hotel

Garrett Horrocks Estate & Trust, Estate Planning, General Interest, In the News, New Media Observations, Public Policy Tags: 0 Comments

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.

Garrett Horrocks

13 Feb

A  Notable Legacy

James Jacuta Estate & Trust, General Interest, In the News Tags: , , , , , 0 Comments

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!

James Jacuta

04 Feb

A Realistic View of Aging – Part 2

Rebecca Rauws General Interest Tags: , , , , , , 0 Comments

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,

Rebecca Rauws

 

The following other blog posts may also be of interest to you:

03 Feb

A Realistic View of Aging – Part 1

Rebecca Rauws General Interest Tags: , , , , , , , 0 Comments

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!

Rebecca Rauws

 

 

Other blog posts that may be of interest:

31 Jan

St. Mark Preaching In Alexandria: Working for Your Bequest

Paul Emile Trudelle Estate Planning, General Interest, Wills Tags: , , , , 0 Comments

St. Mark Preaching in Alexandria is an impressive, substantial work: it measures 3.47 m by 7.70 m.

Gentille Bellini[1] 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.

Paul Trudelle

[1]           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.

29 Jan

Murder Mystery

Ian Hull Estate & Trust, General Interest, Wills Tags: , , , , , , 0 Comments

Recently, Stuart Clark blogged about the film Knives Out and its relation to estate law. Another popular movie, Murder Mystery, which aired on Netflix last year, also offered some thoughtful considerations for those interested in estate law. The film, starring Adam Sandler and Jennifer Aniston, was the most popular title on Netflix in 2019. In its first three days on the streaming service, it was viewed by 30,869,863 accounts.

Just as Stuart gave a spoiler alert in his blog, this blog also contains spoilers.

In Murder Mystery, Nick Spitz and his wife, Audrey Spitz, embark on a trip to Europe. On the plane, Audrey meets billionaire Charles Cavendish, who invites them to join him on his family’s yacht for a party to celebrate Malcolm Quince’s (Charles’ elderly billionaire uncle’s) upcoming wedding to Charles’ former fiancée. While on the yacht, Malcolm announces that he will be changing his will to leave everything to his soon-to-be wife. After this surprise announcement, the lights suddenly go out, a scream is heard, and when the lights come back on, the guests are surprised to see that Malcolm has been killed. Nick and Audrey are framed for Malcolm’s death. To prove their innocence, they must find Malcolm’s real killer.

Throughout the movie, French inheritance law is heavily emphasized. As summarized by Nick in the film: “The French law states that a man’s estate must be divided equally amongst his children.” This type of estate plan is referred to as a “forced heirship.” France’s succession law is based on the Napoleonic Code introduced in the 1800s. Under France’s succession law, children are reserved a certain portion of their parents’ estate. If a parent has one child, at least one-half of the estate must be reserved for them. If a parent has two children, at least two-thirds of the estate must be reserved for them and if a parent has three or more children, at least three-quarters of the estate must be reserved for them.

Those who have watched the film may find themselves wondering if the succession laws in Ontario are similar to that of France. Unlike French inheritance law, in Ontario, a testator does not have an obligation to leave a share of their estate to an adult, independent child. Under subsection 58(1) of the Succession Law Reform Act (theSLRA”), a testator is only under an obligation to provide support for their “dependants”.

According to subsection 57(1) of the SLRA, a “dependant” includes the deceased’s spouse, parent, child, brother or sister “to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.” Therefore, if a testator was not under a legal obligation to provide for an adult child, that child may not have an entitlement to share in their parent’s estate.

Just something to think about the next time you watch the film.

Thanks for reading!

Ian Hull and Celine Dookie

17 Jan

Tattoo You

Paul Emile Trudelle General Interest, In the News Tags: , , , , 0 Comments

Tattoos are, without a doubt, popular. According to a clinical report in Pediatrics, in 2010, 38% of 18 to 29 year olds had at least one tattoo. A study conducted in 2015 found that 47% of Millennials had at least one tattoo. Tattoos, once the hallmark of rebel culture, have now crossed over into the mainstream. It may be that the rebels are the ones without tattoos.

Tattoos are now also making a mark on the administration of estates.

Take Chris Wenzel, who died in 2018. His dying wish was that his tattoos, which covered most of his body, be preserved and given to his wife. According to a CBC report, with the assistance of an organization called “Save My Ink Forever”, she was able to preserve Chris’ tattoos.

Legal issues relating to the process are discussed in the December 2019 issue of Step Journal. In an article entitled “Whose Skin Is It Anyway?”, authors Julia Burns and Matthew Watson discuss the legal implications of such tattoo preservation services from the point of view of English and Welsh succession law.

One issue is that in the common law, there is “no property in a corpse”. A person cannot dispose of their own body through their will. However, the authors note that courts are relaxing this rule, particularly where the body or parts have “a use or significance beyond their mere existence”.

Estate trustees have the responsibility of disposing of the body. The deceased’s wishes are not binding on the estate trustee. However, while not binding, they are relevant. The authors cite a decision, RE JS (Disposal of Body), [2016] EWHC 2859 (Fam), where the deceased asked that her body be cryogenically frozen. The deceased’s mother wanted to abide by these wishes, but her father did not. The court appointed the mother as estate trustee. The court could not order that the wishes of the deceased be followed, but did order that the father be restrained from interfering with the mother’s arrangements as estate trustee.

If a tattoo is property of the estate, how is it to be disposed of? The authors suggest that the will should specifically address this.

Another issue that the authors identify is whether an estate trustee would have an obligation to preserve a tattoo, assuming that it has value. Is such a tattoo an asset of the estate that the estate trustee must “call in”? There appears to be no easy answer to this. However, the authors conclude that “Common law’s strength is its ability to adapt to new social developments; treating preserved tattoos as art that can be disposed of in the same manner as any other chattel may be one of them.”

Thanks for reading.

Paul Trudelle

10 Jan

Posthumous Literary Works: Sir Terry Pratchett

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

Sir Terry Pratchett was a noted author and activist. His genre was fantasy, and more than 85 million copies of his books have been sold. He was most noted for his Discworld series of 41 novels.

Sir Terry Pratchett died on March 12, 2015 at the age of 66 as a result of early-onset Alzheimer’s disease (which he referred to as an “embuggerance”). Prior to his death, he was a vocal supporter of Alzheimer’s research and assisted suicide.

Pratchett left a significant number of unfinished works upon his death. These works will never be enjoyed. Pratchett’s daughter, the custodian of the Discworld franchise, has stated that these works will never be published.

More definitively, Pratchett told his friend and collaborator, Neil Gaiman, that he wanted whatever he was working on at the time of his death to be destroyed. More specifically, he asked that his works and computers be put in the middle of the road and run over by a steamroller.

This wish was fulfilled on August 25, 2017. His hard drive was crushed by a vintage John Fowler & Co. steamroller named Lord Jericho at the Great Dorset Steam Fair. The destroyed hard drive was put on display at The Salisbury Museum

Presumably, the destruction was agreed to by his estate trustees. Otherwise, the works would fall into his estate to be dealt with as assets of the estate.

The wishes of authors with respect to their posthumous works are not always fulfilled. Notably, Franz Kafka asked his friend and literary executor Max Brod to destroy all of his works after he died. Brod ignored this request, and as a result, some of Kafka’s most famous works, The Trial, The Castle, Amerika and The Metamorphosis were published after his death. In an essay by Scott McLemee, it is noted that Kafka was a lawyer, and must have known that his intentions set out in a couple of notes would not be binding on his estate trustee.

Thanks for reading.

Paul Trudelle

09 Jan

Knives Out

Stuart Clark General Interest Tags: , , , , , , , , , , 0 Comments

This past weekend I had the great pleasure of seeing the movie Knives Out by Rian Johnson. For those of you who have not yet seen it I would highly recommend it, especially for those interested in estate law. Although I will try my best to avoid any significant spoilers for those who have not yet seen it, if you don’t want to know anything about the movie before seeing it you should stop reading this blog now.

The plot of Knives Out offers some interesting considerations for those interested in estate law, as it centers around the possible murder of the patriarch of an affluent family, with the alleged motive for many of those accused being that he was going to cut them off and write them out of his Will. While I was watching the movie I couldn’t help but analyze the cases of some of those accused, and whether there were estate law related options that would have been available to them that would not require them to commit murder (I promise that I am fun at parties and that this job has not ruined me).

Knives Out gets into a surprising amount of detail regarding certain estate law concepts, discussing such concepts as “undue influence” in relation to those who would have benefited from the new Will, as well as the “slayer rule” which would result in any individual who was involved in the murder not being entitled to receive a benefit from the estate for public policy reasons. The movie also gets into the concept of “testamentary capacity“, and whether the deceased would have had the capacity to draft the new Will which would have cut the various individuals off.

While watching the movie the one thing that kept running through my mind was that most of the accused family members would appear to have fairly strong arguments that they were dependants of the deceased even if they were cut out of his Will. The movie makes it fairly clear that the deceased was financially supporting a majority of his family members, with his threats to cut them off financially forming the foundation of the motivation for why they may or may not have killed him.

If the deceased had indeed cut these family members out of his Will, and this matter took place in Ontario, there would appear to be a fairly strong argument that those family members that were cut out of the Will were dependants of the deceased under Part V of the Succession Law Reform Act, insofar as the deceased was providing support to them immediately prior to his death and he did not make adequate provision for them in his Will. If these family members were found to be dependants of the deceased, the court could make an order providing for their support from the deceased’s estate regardless of whether they were left anything in his Will. Although I will concede that a long and drawn out court case where various family members assert they are dependants of the deceased is probably a less interesting film than an Agatha Christie style murder-mystery, if Knives Out were real life it is unlikely that many of the family members would ultimately receive nothing from his estate (assuming, of course, they were not involved in his death).

Thank you for reading.

Stuart Clark

P.S. Rian Johnson’s The Last Jedi was better than The Rise of Skywalker. I will die on that hill. Knives Out also features a great scene where Frank Oz (a.k.a. Yoda) plays the family estate lawyer.

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