Category: General Interest

30 Jul

Funeral Pre-Planning: Take a Lesson From a Pirate

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

Sailors, and in particular, pirates are often depicted as wearing gold earrings. There are many legends as to why they adopted this particular fashion statement. One has a clearly estate-related basis.

Sailors were often given earrings to commemorate certain sailing milestones, such as crossing the equator or rounding the treacherous Cape Horn. Superstition also played a role, as many believed that gold earrings would improve their eyesight, prevent seasickness or even drowning. Wax was often pressed onto the earrings, which could serve as earplugs when firing a cannon. Another theory is that the gold earrings were just a way for pirates to show off their wealth.

From an estate planning point of view, sailors would wear valuable earrings so that their funerals could be paid for if their bodies washed ashore. If a pirate died on the ship, the value of the earrings could be used to cover the cost of transporting their body back home, so as to avoid a burial at sea (assuming that there is honour amongst thieves, and that the earrings were used as intended).

Actor (non-pirate) Morgan Freeman sports gold earrings. He has been reported as saying that his earrings are worth just enough to pay for a coffin in case he dies in a strange place.

Preplanning a funeral is always a good idea. It alleviates significant stress, both financial and emotional, on those left behind. It also allows the planner to ensure that they are given the burial they want. Take a lesson from a pirate: make a plan.

Thanks for reading. Have a great weekend.

Paul Trudelle

23 Jul

Olympic Medals: Going for the Gold

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

Finally, the 2020 Olympics appear to be about to begin (at the time that this is being written).

The Tokyo Olympics will have 339 medal events. Approximately 5,000 medals have been minted. The medals are made from recycled materials.

This year, for the first time in recent memory and due to COVID concerns, athletes will be putting their medals around their own necks.

According to International Olympic Committee regulations, each medal must contain a depiction of Nike (the Greek goddess of victory, not the swoosh), the official name of the Games  (eg. XXXII Olympiad Tokyo 2020) and the Olympic five rings symbol.

Although the medals are probably priceless to the winner, they do have an actual value. The cost of the materials used to make the medals is said to be $1,010 CDN for a gold medal, $640 CDN for a silver medal, and $5 CDN for a bronze medal. The gold medal contains six grams of gold plating over silver, the silver medal is all silver, and the bronze medal is made of brass. The Olympic Committee stopped giving out pure gold medals after the 1912 Olympics.

The medals clearly have a value beyond their cost to produce. Most notably, one of Jesse Owens’ 4 gold medals from the 1936 Berlin Olympics was sold in 2013 for over $1.4m US.

On eBay, an original silver medal from the 1906 Olympic Games is available for $15,289 CDN. Replica medals from most Olympic Games are available on eBay for about $35.00 CDN.

In addition to having value in and of themselves, Olympic medals often come with a hefty bonus from the winner’s country. Singaporean winners get $1m, $500,000 or $250,000 US for bringing home a gold, silver or bronze medal. Canadian winners get $20,000, $15,000 or $10,000 depending on where they are on the podium.

For the intriguing story of the 1972 Olympic gold medal basketball game and what lead to a term in the will of competitor Kenny Davis prohibiting his descendants from ever accepting the silver medal from the 1972 Games, see Ian Hull’s blog, here.

May you be faster, higher, stronger this weekend.

Paul Trudelle

22 Jul

Thousands Have Unclaimed Funds Waiting for Them!

James Jacuta General Interest Tags: , , , , 0 Comments

Thousands of individuals have unclaimed funds waiting for them in inactive credit union accounts, as well as unpaid wages, overpayments to debt collectors, proceeds from courts, pension funds, estates and real estate deposits in British Columbia. The British Columbia Unclaimed Property Society (BCUPS), whose mission is to put unclaimed money back in the hands of rightful owners, returned $1,035,932 last year in forgotten funds.

BCUPS holds unclaimed property as the custodian for rightful owners. The Society maintains a free online database where people can search to see if they have any unclaimed money waiting for them. Individuals can claim the funds by completing a verification process. There is no limitation period to claim funds and no cost for BCUPS’s services. BCUPS also works with companies and organizations to help get dormant assets off their books. In 2020, BCUPS received $4,858,925 in unclaimed funds from the courts, the Public Guardian and Trustee of British Columbia, credit unions, insurance companies, various levels of government, companies in liquidation, among other organizations.

Technically, an account is deemed dormant when a prescribed period of time has transpired with no activity, from a year to 10 years, depending on the type of account involved. Under BC law, credit unions, debt collection agencies, real estate agencies, companies in liquidation, municipal and provincial courts and municipalities, which are classified as mandatory holders, are required to make a “reasonable effort” to identify forgotten account holders before transferring these funds to BCUPS. Other organizations holding trust funds, insurance policies, brokerage accounts and closed pension plans are encouraged to voluntarily transfer their unclaimed property accounts to BCUPS if the rightful owners cannot be located.

British Columbia is the only jurisdiction in North America that has set up a not-for-profit society to administer its unclaimed property program where a portion of funds are transferred to charity.

Unclaimed Property in British Columbia by the Numbers:

$148,933,709 – Total amount of money sitting in dormant accounts waiting to be claimed.

$4,858,925 – Amount of unclaimed funds BCUPS received from financial institutions, companies and organizations in 2020.

$1,035,932 – Amount of money returned to verified claimants in 2020.

$106,789,525 – Total amount of money from dormant accounts BCUPS has received since its inception on April 1, 2003.

$18,514,588 – Amount of money from dormant accounts BCUPS has returned to rightful owners since its inception.

$48.4 Million – Funds BCUPS has transferred to Vancouver Foundation for charitable purposes since its inception.

$1.01 Million – Largest amount claimed. An outstanding estate claimed in July 2019.

$1.9 Million – Largest dormant account in BC waiting to be claimed.

The above information was taken from the British Columbia Unclaimed Property Society (BCUPS) website.

Thanks for reading!

James Jacuta

20 Jul

Finding Unclaimed Estates

James Jacuta General Interest Tags: , , , , 0 Comments

The use of technology is permeating the practice of law at a faster pace as a result of the pandemic, as with every other aspect of our lives. However, some areas of law remain unchanged.

Other than in British Columbia, there is still no system that provides the public with easily accessible information about unclaimed property in Canada. For example, it is difficult to locate accounts in provincially regulated financial institutions like credit unions left by a deceased individual if you do not know where the deceased left the account. This is in contrast with the federally regulated Bank of Canada searchable website for banks.

In England and Wales, the list of unclaimed estates with missing heirs is now posted daily on a searchable website. Probate genealogists and individuals can search the list on the bona vacantia page of gove.uk.

In Scotland, the list provides additional information like the value of the estate, or the status of the administration of the estate, which can be found on the website: Queen’s & Lord Treasurer’s Remembrancer.

Beneficiaries and heirs in the United Kingdom have the ability to search online for inheritance assets that they are legally entitled to receive and which are being held in trust for them.

Thanks for reading.

James Jacuta

 

For more information on this topic  please see some of our other blogs:

Reuniting forgotten dollars with their rightful owners!

Lost and Found – $5 Billion

“Bono Vacantia” – Latin for Ownerless Goods or Unclaimed Property

19 Jul

Missing Heirs and Probate Genealogy Going Digital?

James Jacuta General Interest Tags: , , 0 Comments

Ask anyone and they will say, among other things, that lawyers are known for following precedent. Well-established rules and procedures, written and unwritten ways of doing things, and decorum often guide conduct.  However, the last year has seen a veritable revolution in some areas of the law,  like the virtual signing of wills and affidavits. But, for the most part, the area of probate genealogy in Canada still follows traditional methods.

Probate genealogy involves finding missing heirs in cases where there is a will with a named beneficiary who cannot be located.  Also, in those cases where someone has died without a will and without known heirs.

Over the last decade,  genealogical research has been assisted by online databases making digital copies of documents available for viewing and research. But, in Canada, hardcopy original or certified copy vital statistic documents like birth and death certificates are still required in almost all cases when dealing with courts, financial institutions, or the Office of Public Guardian and Trustee. This is in contrast with some countries in the European Union where they have moved to entirely digital vital statistic records.

The pandemic has resulted in permanent changes in the court system like video trials and digital filing of documents with the clerk of the court. Law firms now use teleconferencing services for meetings regularly. Real estate agents now hold virtual showings of properties for sale. Doctors now do online medical consultations. Banking is now done on a mobile phone app. The acceptance of digital copies of vital statistic documents will accelerate the locating of missing heirs and assist in proving that they are indeed related to the family being researched without delays associated with obtaining hardcopy documents or physically having to research in archives. This would be beneficial as often hundreds and even thousands of historical records have to be analyzed. In time, it may be that digital practices will also be responsibly adopted in the area of probate genealogy, as in other areas of the law recently.

Thanks for reading.

James Jacuta

08 Jul

OPGT as Temporary Guardian: The Public Guardian and Trustee v. Willis

Doreen So General Interest, In the News, Litigation Tags: , , , , , 0 Comments

I blogged on the Ontario Public Guardian and Trustee’s Guardianship Investigations Unit, and the OPGT power to bring an application for a temporary guardianship under certain circumstances earlier this week.  In The Public Guardian and Trustee v. Willis et al, 2020 ONSC 3660, the OPGT brought an application for Andrew Willis to pass his accounts with respect to his management of his mother’s Ruth Irene Willis’ property, and for an order that the OPGT be appointed as Mrs. Willis’ temporary guardian of property which would replace Andrew Willis as Mrs. Willis’ POA.

Mrs. Willis suffers from moderate to severe dementia and she lives in MacKenzie Place Nursing Home.  Mrs. Willis is a widow and Andrew is her only living child.  Mrs. Willis’ only asset is her home in Richmond Hill.  There are four mortgages registered against the home, which total $3.35M.  However, according to the last appraisal, the home was only estimated to be worth $2.8M after various renovations are complete.  The extent of the mortgages and Andrew’s role in arranging them, and as a personal guarantor in the event of Mrs. Willis’ default, was the basis for the OPGT’s accounting request.

What led to the OPGT to seek to replace Andrew as Mrs. Willis’ substitute decision maker was serious enough to convince the Court:

  • Andrew was found to be consumed by the home renovations when Mrs. Willis’ basic living expenses at the nursing home were left unpaid. The Court was particularly concerned that,

“Andrew does not do what he says he will do. He made many promises to MacKenzie Place to pay his mother’s arrears but did not. There are still arrears owing of $15,000. Andrew has not made his mother’s needs a priority. As a result, his mother is living in a ward with other residents in a facility which has experienced COVID-19 cases and with minimal services. Mrs. Willis’ quality of life must be improved.”

  • Willis also owes unpaid taxes to the Canada Revenue Agency. Her only bank account was found to have been used for Andrew’s personal expenses, such as his Granite Club fees, groceries, gas, alcohol, hockey equipment and his child support payments before the account was frozen by RBC.
  • Despite Andrew’s efforts in listing the property for sale, the only offer that Andrew had received was less than the total mortgages.
  • Andrew had also failed to make an application for survivor’s pension to increase Mrs. Willis’ monthly income.

The Court ultimately gave Andrew another 1.5 months to sell the house as Mrs. Willis’ attorney for property before the OPGT takes over regardless of whether the home has sold.  If you are interested in learning more about Willis, click here for Rebecca Rauws’ blog on the accounting aspects of this case.

Thanks for reading!

Doreen So

06 Jul

Investigating Britney’s Allegations in Ontario: the OPGT Investigations Unit

Doreen So General Interest, In the News, Litigation, Uncategorized Tags: , , , , , 0 Comments

Britney Spears’ recent statement to the Court on the abuses of her conservatorship has stunned the world.  Spears spoke of being abused and traumatized by her conservators.  Spears gave examples of being forced to do a concert tour against her wishes and under threat of breach of contract; and of being prevented from marrying and having more children of her own.

Spears’ father, who is at the center of this controversy as one of Spears’ conservators for the last 13 years, has filed his own petition for the Court to investigate the allegations in Spears’ statement.  Spears’ father has also expressed criticism over Spears’ conservator of person care, Jodi Montgomery, to which Ms. Montgomery has made the following statement according to Variety,

“…conservatorships in California are subject to the strictest laws in the nation to protect against any potential abuses, including a licensing requirement for all professional fiduciaries. Ms. Montgomery is a licensed private professional fiduciary who, unlike family members who serve as conservators, is required to follow a Code of Ethics…Private professional fiduciaries often serve in cases as a neutral decision-maker when there are complex family dynamics, as in this case…

Because Ms. Montgomery does not have any power or authority over the conservatorship of the estate, every expenditure made by Ms. Montgomery for Britney has had to be first approved by Jamie Spears as the conservator of the estate…Practically speaking, since everything costs money, no expenditures can happen without going through Mr. Spears and Mr. Spears approving them.”

There is similar provision in Ontario for how guardians of property are required to work with the guardians of person.  Section 32(1.2) of the Ontario Substitute Decisions Act, 1992 provides that, “A guardian shall manage a person’s property in a manner consistent with decisions concerning the person’s personal care that are made by the person who has authority to make those decisions.”

File Stack and Magnifying Glass

The Ontario Substitute Decisions Act, 1992 also imposes a positive duty on the Public Guardian and Trustee (“OPGT“) to investigate “any allegation that a person is incapable of managing property or personal care and that serious adverse effects are occurring or may occur as a result” (see sections 27 and 62 of the Act).  According to the OPGT,

“With respect to finances, “serious adverse effects” includes “loss of a significant part of one’s property or failure to provide the necessities of life for oneself or dependents”. Incapacity may, for example, lead a person to give large sums of money away to strangers or to face loss of their home for failure to pay taxes. An incapable person may face starvation or eviction if they cannot look after paying rent or buying food.

With respect to personal welfare, “serious adverse effects” includes “serious illness or injury, or deprivation of liberty and personal security”. Incapacity may, for example, result in a person being unable to remove themselves from a very dangerous situation or to take steps to stop physical or sexual abuse.

[…]

Throughout the investigation, the investigator tries to facilitate solutions that will serve to protect the person without the need for a formal court process. Respect for the dignity of the person and objectivity about the circumstances are paramount considerations in every investigation.”

If a formal court process is found to be necessary, the OPGT will make an application to the Court for a temporary guardianship, and the OPGT can also apply to make the temporary guardianship permanent.  The OPGT is a branch of the Ontario Ministry of Attorney General, and they are meant to provide Ontarians with protective safeguards.  While this specific investigative process is not technically meant to terminate an existing guardianship, it can temporarily or even permanently place the OPGT in charge as guardian of property and person.

Thanks for reading!

Doreen So

05 Jul

Terminating Guardianships: Zheng v. Zheng, 2012 ONSC 3045

Doreen So General Interest, In the News, Litigation Tags: , , , , , 0 Comments

Britney Spears has been the subject of worldwide discussion for most of her life.  The attention on Spears is once again at its height after Spears gave evidence in Court to contest and lay bare the abuses that she has suffered in the course of her 13-year conservatorship. You can read a slightly edited transcript of Spears’ 24-minute statement here.

Spears has been under a conservatorship ordered by the Los Angeles Superior Court since 2008.  The order was made following a number of publicly scandalous events such as the time when Spears was photographed driving with her baby on her lap, and the time when she was photographed shaving her own head.  Spears’ father, Jamie Spears, and a lawyer were named as her conservators which gave them the authority to make decisions about Spears’ property and health.  Spears’ conservatorship was routinely back before the Court and extensions of the arrangement were granted throughout its 13-year history.  A full timeline can be found here.

Recently, in 2019, Jamie Spears sought to extend the conservatorship across multiple states so that he would be similarly authorized to deal with Spears and her property in Louisiana, Hawaii, and Florida.  That same year, Jamie Spears stepped down as the primary conservator after criticisms from Spears’ 14-year old son.  In 2020, Spears sought to remove Jamie Spears as one of her conservators all together.  Fast forward to now, Spears tells Los Angeles probate Judge Brenda Penny that she didn’t know she could petition to end the conservatorship, and that she wanted it to end without being evaluatedDays later, on June 30th, an old application to remove Jamie Spears was dismissed and a wealth management company, Bessemer Trust, was appointed to act as a co-conservator with Jamie Spears, although Spears is not precluded from bringing new applications in the future.

Here in Ontario, our version of a conservatorship is known as a guardianship under the Substitute Decisions Act, 1992.  A petition to terminate a guardianship can be brought by motion under section 28 of the Act.  This was done in one instance by Y. Zheng in Zheng v. ZhengZheng v. Zheng, 2012 ONSC 3045, is a Division Court decision by Justice Wilton-Siegel which granted Zheng leave to appeal an order that she be assessed as a part of her motion to terminate her guardianship.

In Zheng, Zheng was found to be incapable of managing property and personal care in 2007 and Zheng’s brother became appointed as her guardian.  When Zheng applied to terminate the guardianship in 2012, Zheng submitted four current assessments, all of which found Zheng to be capable.  The assessments were done by a qualified assessor under the Act, a staff psychiatrist at CAMH, and an in-home occupational therapist.  The psychiatrist, in particular, had found that Zheng is currently capable with respect to treatment of her psychiatric condition, which was diagnosed as a psychotic disorder due to a head injury.

Zheng’s brother opposed the termination.  Zheng’s brother had the assessments reviewed by the same neuro-psychologist who assessed Zheng in his 2007 guardianship application and concerns were raised about the sufficiency of these new assessments.  Thereafter, Zheng retained her own neuro-psychologist to do conduct the same review, and Zheng’s neuro-psychologist came to the opposite conclusion in Zheng’s support.  Given the conflicting review, Zheng’s brother brought a motion for Zheng to undergo a further assessment by an assessor of his choice. This was ordered by Justice B. O’Marra, and leave to appeal this order was granted by Justice Wilton-Siegel.  Unfortunately for us, there does not appear to be any further reported decisions in this matter and I do not know if the assessment appeal or the broader motion to terminate was pursued further.

At the end of the day, I hope Spears’ conservatorship will be resolved to Spears’ satisfaction.  It may very well be that an evaluation of some sort will be required on Spears’ part but, like Zheng, perhaps Spears’ evaluations can be done on her own terms.

Thanks for reading!

Doreen So

02 Jul

Canada Day, 2021

Paul Emile Trudelle General Interest Tags: , 0 Comments

“July 1, not being a Sunday, is a legal holiday and shall be kept and observed as such throughout Canada under the name of ‘Canada Day’.

When July 1 is a Sunday, July 2 is a legal holiday and shall be kept and observed as such throughout Canada under the name of ‘Canada Day’.”

So mandates ss. 2(1) and (2) of the Holidays Act, R.S.C., 1985, c. H-5.

Canada Day became Canada Day on October 27, 1982. Prior to that, the day was said to be “Dominion Day”, which was officially recognized as a holiday in 1879 by way of The Dominion Day Act, 1879. Before that, the day did not have a name. However a proclamation was issued on June 20, 1868 whereby the Governor General proclaimed: “I do hereby enjoin and call upon all Her Majesty’s loving subjects throughout Canada to join in the due and proper celebration of the said Anniversary [of the forming of the Dominion of Canada] on the said FIRST day of JULY next.”

As Suzana Popovic-Montag observed in her blog of July 1, 2015, Canada Day, is a commemoration of the confederation of Upper Canada, Lower Canada, New Brunswick and Nova Scotia. Contrasted with the 4th of July celebrations to the south, “Canada Day is less of a celebration of our collective self-assertion to obtain our autonomy by force and more of a celebration of our ability to come together, our ability to work together and even our ability to live together – which is a really nice thing to celebrate.”

That is a wonderful sentiment. However, we still have a lot of work to do on improving our abilities to come together, work together and live together. The job is not done, and Canada faces many issues.

Take some time to celebrate Canada this weekend, and also take some time to contemplate the issues faced by many and the need for all of us to focus on how we can better work, live and come together.

Have a great weekend.

Paul Trudelle

25 Jun

Text Messages and Signatures

Paul Emile Trudelle General Interest, Litigation Tags: , , , , , , , , 0 Comments

Can a text message be tantamount to a signed acknowledgment?

Yes, according to the recent Ontario Divisional Court decision in 1475182 Ontario Inc. o/a Edges Contracting v. Ghotbi.

There, the court considered the application of certain provisions of the Limitations Act, 2002. Essentially, under the Act, a claim must be started within two years of the act or omission giving rise to the claim. However, under s. 13 of the Act, the date for a claim for payment can be extended where the debtor acknowledges the debt to a creditor IN WRITING and SIGNED BY THE PERSON MAKING IT OR THE PERSON’S AGENT.

In Edges, a contractor sued for money owing for renovation work. The last payment under the contract was made in March 2016. The claim was not commenced until May, 2018, and the defendant argued that the claim was statute-barred. However, the defendant texted the contractor in June, 2016, saying “The balance will be paid once everything is completed as per your agreement. No payment will be made until everything is clear. I’m going to hire a third-party inspector and their fees will be deducted from your payments too.”

The contractor argued that this was an acknowledgment of the debt, and therefore extended the limitation period. The defendant countered by arguing that the text was not signed, and therefore did not have that effect. The Small Claims Court judge and the Divisional Court disagreed.

On the issue of whether the text satisfied the statutory requirement that the acknowledgement be “signed”, the Divisional Court noted that there was no issue as to whether the text was authentic, or sent by the defendant. The Divisional Court held:

  1. The requirement of a signature is grounded in concerns of authenticity. As there was no issue with respect to the authenticity of the text, the underlying purpose of the signature requirement was satisfied.
  2. In any event, the Divisional Court concluded that the text was “signed”, albeit not in the traditional sense. The text was sent from the defendant’s cell phone. The phone had a unique phone number, and “other unique identifiers associated with … [the defendant’s] phone, including, without limitation, an International Mobile Equipment Identifier (IMEI) number. These unique identifiers provide, in effect, a digital signature on every message sent by the user of that particular device.”

The Divisional Court observed that “The world is changing. Everyone knows that. We live in a digital world now, much more than was the case when the Act came into force in 2002. It is incumbent upon the court to consider not just traditional means of affixing one’s signature to a document, but other, more modern means, including digital signatures.”

The world is indeed changing. Text with caution.

Have a great weekend.

Paul Trudelle

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