Category: General Interest

22 Aug

Never Really Lost but Recently Discovered

Doreen So Estate & Trust, General Interest, In the News, Wills Tags: , , , 0 Comments

Thanks to the New York Times, I found out about where most of Bob Ross’s paintings have been kept all these years.  Bob Ross was the iconic host of the television show, The Joy of Painting.  The PBS show ran from 1983 to 1994 and these old episodes continue to be watched on television, YouTube, and Netflix today.

In each episode, Bob taught his audience how to paint landscapes from his own imagination and memories.  According to this NYT video, Bob would paint three versions of the same painting for each episode.  Given the amount of episodes, Bob is estimated to have painted over a thousand paintings for the show alone.

Bob’s paintings are owned by a company known as Bob Ross, Inc.  Bob Ross, Inc. was originally owned by Bob, his wife, Jane, and Annette and Walt Kowalski.  The Kowalskis are credited with discovering Bob and financing his early career.  When Bob died in 1995, predeceased by his wife Jane, the Ross’s shares of the company were left to the Kowalskis.

To date, Bob Ross, Inc. does not sell Bob’s paintings.  It is a company that sells painting supplies, books and dvds, and other fun items like t-shirts and coffee mugs.

As a privately held corporation, Bob Ross Inc. can continue to hold onto Bob’s paintings for the foreseeable future.  Only time will tell if the shareholders of Bob Ross Inc. might change their minds about Bob’s paintings.  For now, the company has donated a collection of Bob’s paintings to the Smithsonian and the rest of us will just have to paint our own paintings by learning from Bob.

Just for fun, and to finish off my theme for the week, here is a video for happy little Bob Ross waffles.

Doreen So

Golden Fall Foliage Autumn Yellow Maple Tree Season

20 Aug

Parties to Bear Their Own Costs of a Contested Guardianship

Doreen So Capacity, Continuing Legal Education, Elder Law, General Interest, Guardianship, In the News Tags: , , , , 0 Comments

There was a recent decision of the Ontario Superior Court of Justice on the issue of costs in a contested guardianship proceeding.  Rather unusually, the endorsement in Howard Johnson v. Howard, 2019 ONSC 4643, dealt with the issue of costs after the parties have resolved the main dispute on consent.

In this case, there were two competing guardianship applications over Elizabeth.  The applicants on the one hand were Elizabeth’s daughter and son, Marjorie and Griffin, and on the other hand, Elizabeth’s other son, Jon.  All three of Elizabeth’s children were of the view that their mother was in need of a substitute decision maker for both the management of her property and for personal care.

While the endorsement does not specify who the competing applicants were seeking to appoint as Elizabeth’s guardian, the parties eventually settled on the appointment of CIBC Trust Corporation as Elizabeth’s guardian of property and all three children as Elizabeth’s guardians of personal care.  On the issue of costs, Marjorie and Griffin sought full indemnity costs from Jon while Jon sought substantial indemnity costs from Majorie and Griffin or, in any event, that he be indemnified by Elizabeth for any amounts not recovered from his siblings.

Pursuant to section 3 of the Substitute Decisions Act, 1992, Elizabeth was represented by counsel throughout the proceeding and on the issue of costs.  Submissions were made on Elizabeth’s behalf that she should not have to pay costs of the other parties or the outstanding balance of an invoice that was purportedly incurred by Elizabeth in a joint retainer with Jon.

The Court in this instance considered the modern approach to costs in estate litigation as set out in McDougald Estate v. Gooderham,  2005 CanLII 21091 (ON CA), with respect to Jon’s claim that Elizabeth ought to be responsible, at least in part, for his costs.  The court relied on D.M. Brown J.’s (as he was then) comments that the discipline imposed by the “loser-pays” approach to estate litigation applies with equal force to matters involving incapable persons citing Fiacco v. Lombardi, 2009 CanLII 46170 (ON SC).  Only costs incurred for the best interests of the incapable person could be justified as costs payable from the incapable’s assets.

In this case, the competing applications of the siblings were found to contain a number of ancillary issues beyond that of the appointment of a substitute decision maker for Elizabeth.  The Court was ultimately unable to see how Elizabeth would have derived any benefit from her children’s disputes.  Therefore, the children were all ordered to bear their own costs.  There was also no clear benefit to Elizabeth from the invoice that was issued to her prior to the appointment of section 3 counsel and Jon was ultimately left to pay that balance.

At the end of the day, the only costs borne by Elizabeth, as the incapable person subject to two competing guardianship applications, were the costs of section 3 counsel pursuant to the section 3(2) of the SDA.

Here is a Bon Appetit recipe for a frozen margarita pie that we could all benefit from.

Doreen So

19 Aug

The Death of a Limited Partner

Doreen So Continuing Legal Education, Estate Planning, Executors and Trustees, General Interest, Litigation Tags: , , , , 0 Comments

Earlier this year, the Ontario Court of Appeal considered the issue of an estate’s entitlement to the residual assets of a partnership upon the death of its sole limited partner.

Canadian Home Publishers Inc. v. Parker, 2019 ONCA 314, is a lawsuit between the general partner and the Estate Trustees of the deceased limited partner, David.  Canadian Home Publishers Inc. was incorporated when Lynda and David decided to purchase Canadian House and Home magazine in 1985.  Lynda and David were married at the time.  The corporation was owned by Lynda as the sole general partner and by David as the sole limited partner.  It was their intention that Lynda would run the company as her own business and David would make use of its tax losses.

The couple later divorced in 1991.  Litigation ensued and there was a previous decision about the nature of the parties’ oral partnership agreement in the ’90s.  David dies in 2012.  By the time of his death, David had received over $26 million from his interest as the limited partner.  The magazine itself was valued at over $50 million.  Lynda, as the general partner, sought a declaration that 1) the limited partnership was dissolved upon David’s death, and 2) that David’s Estate was only entitled to a share of the profits to the date of his death and a repayment of his remaining capital contribution (i.e. that the Estate was not entitled to share in the residual value of Canadian Home Publishers).

The lower court found that 1) the limited partnership was indeed dissolved upon David’s death and 2) that David’s Estate was entitled to an equal share of the residual value of Canadian Home Publishers with Lynda.  While the Court of Appeal upheld the finding that the limited partnership was dissolved on death, the second finding was overturned and the Estate was limited from any additional benefit over above its share in profits as of the date of death and a return of capital.

The Court’s analysis provides a helpful description of the differences between limited partnerships and ordinary partnerships.  A limited partner is meant to be a passive investor whose exposure to liability is limited to the extent of his or her capital contribution unless otherwise provided in the Limited Partnerships Act (see paras. 20-21).  A limited partner has no broader right to participate in the upside of the limited partnership, just as the limited partner has no broader obligation to suffer or contribute in the downside (para. 25).

Since we are talking about House & Home, here is a recipe from their website for pineapple honey ribs 🙂

Thanks for reading and until next time!

Doreen So

01 Aug

An Eye Test to Diagnose Alzheimer’s?

Kira Domratchev General Interest, Health / Medical Tags: , , , , 0 Comments

My colleague, Sayuri Kagami, recently blogged on the Introduction of National Dementia Strategy.

Canada, as most people will know, has an aging population and the issue of dementia has become more and more prevalent over the years, as it affects the ability of those afflicted, to live and function independently.

A strategy to address this problem is important given the statistics, however, another interesting aspect of this live issue is the work being done to develop a means of preventing and minimizing the impact of this disease on people in the future.

Dr. Rosanna Olsen is the leader and director of the Olsen Lab and a scientist at the Rotman Research Institute (RRI) at Baycrest as well as an Assistant Professor at the University of Toronto.

Dr. Olsen noted that early detection of dementia is important for effective treatment of the disease. Given that no test can currently detect dementia before the onset of symptoms, Dr. Olsen has undertaken research that will help in the development of non-invasive and cost-effective eye-tracking tests that will identify those at risk of dementia before the onset of the symptoms.

Dr. Olsen will receive $546,975.00 over five years for her work in establishing a set of new eye-tracking and brain-imaging biomarkers that will assist in the earlier detection of Alzheimer’s disease.

I, for one, am very interested in seeing the results of this study and how they may impact the detection of Alzheimer’s disease in the future.

If you are interested in learning more about Dr. Olsen’s efforts in this area, please take a look at the Olsen Lab website or the Baycrest article that speaks about her research.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Six Proven Ways to Prevent Dementia

New Model of Care for Those with Dementia Coming to Canada

Dementia Care and Robots

10 Jun

Just how common is elder abuse?

Nick Esterbauer Elder Law, General Interest Tags: , , , , , , , 0 Comments

Our readers will all be familiar of the issue of elder abuse, and the various forms that it can take.  It is also well-known that elder abuse if underreported, giving rise to challenges in determining just how common it is and how incidence rates may be fluctuating within the context of our aging population.

A new study by Comparitech explores the issue of the underreporting of elder abuse and extrapolates reported incidents and studies regarding underreporting to gain an appreciation of how commonly it is actually occurring in the United States.  Comparitech estimates that at least 5 million cases of financial elder abuse occur every year in the United States alone.  While damages of $1.17 billion are reported, it is believed that the actual losses to seniors total $27.4 billion.

Technology also appears to be playing a role in increasing rates of elder abuse.  Comparitech found that 1 in 10 seniors were victims of elder abuse and that the use of debit cards have become the most common tool in defrauding them of their funds.  With phone and email scams on the rise in recent years, underreporting is anticipated to become a growing problem while incidence rates continue to increase without any way to determine exactly how many seniors are affected.

Thank you for reading.

Nick Esterbauer

 

Other blog posts that you may enjoy reading:

04 Jun

Longevity and Anti-Aging: What is being done to keep us Living Better for Longer?

Rebecca Rauws General Interest, In the News Tags: , , , , , , , , , , , , , , 0 Comments

These days, life expectancy is longer than ever. We have previously blogged (for instance, here and here) about some considerations and consequences of having a longer life expectancy. A recent article in The New Yorker considers aging, and in particular, anti-aging now that people are generally living longer. The online version can be found here: Can We Live Longer but Stay Younger?

One of the problems with living longer, as highlighted in the New Yorker article, is that we still must deal with the challenges and realities of aging. What we really want is not eternal life but rather, eternal youth.

The article discusses several efforts to address or counteract the types of issues that we face as we age. For instance, a geneticist at Harvard has successfully extended the life of yeast, and is moving on to human trials. A Harvard molecular biologist, George Church, has had success reprogramming embryonic stem cells to essentially turn an old cell into a young cell. Church’s work has been done so far on mice and dogs, but there are plans to commence human clinical trials within the next five years.

The goal of the work being done by Church is to live better, not necessarily longer: “The goal is youthful wellness rather than an extended long period of age-related decline.” The article discusses the nature of this age-related decline, through the illustration of a “sudden aging” suit that allows the wearer to experience the physical challenges of aging, including boots with foam padding to produce a loss of tactile feedback, and bands around the elbows, wrists, and knees to simulate stiffness. The point of the aging suit is to help create empathy and understanding about how difficult each and every task (an example was reaching up to a top shelf and picking up a mug) can be for older adults, both physically and mentally. So the question becomes, if we are living so much longer, but with age, every day and every task becomes much more difficult, what can we do to counteract that?

The work being done related to anti-aging and the creation of products to make older people’s lives easier is interesting and seems to be moving in new directions. For instance, the article mentions the difficulty of marketing certain products aimed at older people, because we do not like the idea of buying something that reminds us that we are old. So instead of selling a personal-emergency-response system to send an alert and seek assistance in the event of a fall, or some other physical emergency, in the form of a pendant worn around the neck, it is suggested that the most effective such device would be an iPhone or Apple Watch app.

Unfortunately, the issue of dementia is still a concern. There still does not appear to be a cure in sight for Alzheimer’s or other forms of dementia. The causes remain unclear. The effects, however, are evident. One of the individuals mentioned in the article was Professor Patrick Hof, who studies brains. On the physical effects of dementia on our actual brains, Professor Hof notes that “[y]ou can’t tell any difference, even under extreme magnification, between an aging non-demented brain and a younger human one…But, holding an Alzheimer’s brain in your hand, you can see the atrophy.”  It appears that there is still a lot of work to be done in this area, in particular.

Thanks for reading,

Rebecca Rauws

 

Other blog posts that you may find interesting:

28 May

Legal Aid Funding and Access to Justice

Nick Esterbauer Elder Law, Estate & Trust, General Interest, In the News, Litigation, Support After Death Tags: , , , , , , , , 0 Comments

Sydney Osmar‘s blog from yesterday covered the issue of the recent cuts to legal aid funding, which can only be expected to result in increased barriers to Ontario residents in accessing the court system.

Within the context of estates, high legal fees may contribute to the inability of (would-be) litigants to obtain able assistance in accessing the court system.  Some meritorious estate and capacity-related litigation may not be commenced simply because of a lack of funds required to hire a lawyer to assist in doing so.

While successful parties may be awarded some portion of the legal fees that they have incurred, payable by the unsuccessful party to the litigation (or out of the assets of the estate), recovery of all legal fees incurred in pursuing litigation is rare.  The balance of legal fees that a party can be expected to pay out of whatever benefit they may ultimately receive dependent on the outcome of the litigation may eliminate some or all of the financial benefit of the funds that they may stand to receive.

For example, a dependant’s support application brought by a surviving spouse who lacks the financial means to support him or herself may result in protracted litigation.  Even if the application for dependant’s support is successful, the court may not always make an order that adequately reflects the entitlements of the dependant and the total fees that he or she has incurred to bring the application, limiting the funds available for the dependant’s expenses going forward.  While interim support orders or orders directing payments toward professional fees related to bringing the application may be available during litigation in some circumstances, the related motions will serve to further increase the legal fees incurred by the applicant if such relief is not obtained on consent.  In the absence of contribution from the assets of the estate to fund the litigation or an alternative arrangement for the payment of legal fees, it may not be possible for a surviving spouse in need to make a dependant’s support claim in the first place or he or she may need to do so without a lawyer’s assistance.

In 2016, it was reported that the numbers of self-represented litigants in Canada have increased over the last two decades and more significantly in recent years.  The inability to afford a lawyer and ineligibility for legal aid assistance were cited as the primary reasons why a party is self-represented.  Research suggests that parties who are self-represented are less likely to be successful in litigation (with success rates of only 4% in responding to motions for summary judgment, 12.5% for motions and applications, and 14% at trial) than represented parties.

While assistance with estate-related matters may be available to some from the Advocacy Centre for the Elderly, the Queen’s University Elder Law Clinic, or other clinics (which are funded by Legal Aid Ontario and will be impacted by the recent budget cuts) in some circumstances, many individuals simply do not qualify for assistance or require assistance that is not provided by these clinics.

Our colleague, The Honourable R. Roy McMurtry, is a strong advocate for access to justice and has expressed the following sentiment: “[O]ur freedoms are at best fragile…they depend on the ability of every citizen to assert in a court or tribunal their rights under law as well as receiving sound legal advice as to their obligations.  Indeed, our laws and freedoms will only be as strong as the protection that they afford to the most vulnerable members of society.”

Unfortunately, greater numbers of individuals than previously may struggle to access just resolutions of estates and other matters as a result of the recent changes to legal aid funding in Ontario.

Thank you for reading.

Nick Esterbauer

23 May

What can you do with damaged cash in Canada?

Doreen So Estate & Trust, Executors and Trustees, General Interest, Uncategorized Tags: , , , , , 0 Comments

I noticed a rip in a twenty dollar bank note in my wallet the other day. I was struck by the rip because Canadian bank notes are now made with a polymer that is meant to last longer than paper bank notes.  The idea that money can be accidentally damaged is a potential issue for estate trustees who are charged with the responsibility of gathering and preserving the assets of an estate until it’s distributed to the beneficiaries.

Luckily enough, The Bank of Canada has a policy on contaminated or mutilated bank notes.  Under certain circumstances, The Bank of Canada will redeem bank notes that have become contaminated or mutilated beyond normal wear and tear and issue the claimant with replacement bank notes.  The Bank of Canada will carefully scrutinize each note and the circumstances of each claim in order to determine whether the claim is legitimate.

 

 

According to The Bank of Canada, a claim will be rejected if it is their opinion that:

  • the identity of the claimant cannot be substantiated;
  • the notes are counterfeit or there are reasons to believe that the notes were acquired or are connected to money laundering or other criminal acts;
  • there has been an attempt to defraud the Bank or there exists contradictory or improbable explanations about significant aspects of the claim, such as how the notes were damaged or how they came into possession of the claimant;
  • any of the security features of the notes have been removed or altered or where the notes have otherwise been altered or damaged deliberately or in a systematic fashion, including dyed or chemically washed or treated, by a process that could be reasonably expected to have the effect of altering them.

While this particular problem might seem unlikely to occur, our blog has covered past instances where cash was found to have been destroyed.  There is also a very thorough wikiHow on how to replace damaged currency in the U.S. with some practical tips for worldwide application, such as tips on how to package and deliver the damaged currency to the appropriate authorities.

Thanks for reading!

Doreen So

13 May

Estate Taxes and the 2019 Budget

Natalia R. Angelini General Interest, News & Events, Trustees Tags: , , 0 Comments

An estate trustee has several responsibilities, including paying tax liabilities arising from the deceased’s death.  There are multiple deadlines to remember, including:

  • Prior Year’s T1 Return – If the death is between January and April, the return for the prior year must be filed within six months after the date of death.
  • Terminal T1 Return – If the death is between January and October, the return for the year of death is due April 30th of the next year. If the death is in November or December, the return must be filed within six months.
  • T3 Tax Return – If there is income received by the estate after the date of death, the T3 tax return must be filed within 90 days after the end of the calendar year or the estate year (365 days post-death), whichever period the estate trustee elects.

In addition to the above income tax-related deadlines, should the executor apply for a Certificate of Appointment (probate), Estate Administration Tax (“EAT”) will be owed upon filing the application. EAT is calculated on the value of the assets of an estate:

  • $5 per $1,000.00, or part thereof, is owed on the first $50,000.00; and
  • $15 per $1,000.00, or part thereof, is owed on the value of the estate over $50,000.00.

Once probate is granted, an Estate Information Return (“EIR”) must be filed with the Ministry of Finance.  An EIR requires the executor to provide an inventory and particulars of each type of asset of the estate, including fair market values at the date of death. The deadline to file the initial EIR is within 90 days after probate is granted. If the executor discovers incorrect or incomplete information, an amended EIR must be filed within 30 days of the discovery.

The 2019 Budget of Ford’s Ontario government proposes certain changes that would impact both the EAT and EIR.

EAT – The 2019 Budget proposes to eliminate the payment of EAT on the first $50,000.00 of the estate value. This change would spare modest estates from having to pay EAT, which may be particularly impactful in circumstances with limited available monies. It will also result in a savings of $250.00 for larger estates, as no EAT will be payable on the first $50,000.00.

EIR – The 2019 Budget proposes to extend the EIR initial filing deadline from 90 days to 180 days, and the amended filing deadline from 30 days to 60 days. The change to the initial filing deadline may be especially helpful for executors, as it can be a challenge to obtain particulars and date of death valuations of all estate assets within just three months of death.

Thanks for reading and have a great day,

Natalia Angelini

02 May

Practical Tips from the Bench

Garrett Horrocks Estate & Trust, Estate Litigation, General Interest, Litigation 0 Comments

I recently had the good fortune of attending a dinner hosted by the Ontario Bar Association along with several members of the Toronto estates list Bench.  The judges were kind enough to share a few pearls of wisdom with respect to practice tips and elicit some of the dos and don’ts of appearing before them. A few of the most salient points are highlighted in this blog.

Confirmation Forms

The Rules of Civil Procedure provide that parties to a proceeding are to file a confirmation form with the court no later than 2:00pm three days prior to the hearing in order to ensure that a particular matter is properly scheduled.  The form allows sets out several options to be selected by counsel regarding the purpose or anticipated outcome of the attendance.

However, in order to improve judicial efficiency, the Bench has asked that if counsel will be seeking the court’s assistance in resolving certain minor contested issues, a short description of these issues should be attached with the confirmation form.  Particularly in the case of short scheduling appointments, which only typically last ten minutes, advising the court of relevant issues ahead of time will ensure a productive use of the attendance.

Case Conferences

The Bench has also professed the benefits of scheduling case conferences before a judge with a view to resolving or otherwise narrowing the issues to be tried in a given matter.  Case conferences typically follow the format of short scheduling appointments, though with significantly more time allotted to these attendances on the understanding that they are to be used to resolve substantive rather than procedural issues.

Ideally, the bench would like to see counsel attend such conferences prior to scheduling motions or hearings that would be dispositive of a proceeding or of certain issues, such as motions for summary judgment.  In most cases, the opportunity for counsel to obtain the advice and direction of a judge while avoiding the significant costs of preparing for a motion can be a helpful step towards resolution.

Probate Issues

On the administrative side, the Bench was kind enough to release a list of the most common errors in applications for certificates of appointment as raised by court staff.  In no particular order, the court strongly encourages the following practical tips:

  1. Ensure parties are correctly and consistently identified throughout the application, especially if a party identifies under a different name or a pseudonym.
  2. Ensure the names of parties and entities are spelled correctly.
  3. If a particular section of the application does not apply on the facts, do not leave that section blank.  Instead, expressly indicate that the section is not applicable.
  4. Ensure all exhibits included as part of the application, especially the Last Will and Testament that is the subject of the application, are stamped with an exhibit stamp and commissioned.
  5. Ensure the commissioner includes their full name below their signature.

These are only a few of the many tips shared by the judiciary, but they are as much to the benefit of the court as they are to counsel.  Great advocacy is equal parts assisting your client and assisting the court.

Thanks for reading.

Garrett Horrocks

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