Category: General Interest
A recent study published by the Department of Radiology and Biomedical Imaging at the University of California at San Francisco represents a promising breakthrough in research relating to early detection of Alzheimer’s disease. At the core of the study, however, is a familiar yet unlikely trend: artificial intelligence.
The research team developed an algorithm to read and interpret PET scan images with a particular emphasis on monitoring and detecting changes in glucose uptake over extended periods of time. Glucose monitoring has historically been an important predictive factor in formulating a diagnosis of Alzheimer’s. Healthy cells generally display high levels of glucose uptake, indicative of robust cell activity. Conversely, lower glucose uptake suggests cell inactivity or death, for example, as a result of Alzheimer’s.
The slow, progressive nature of Alzheimer’s has historically rendered it difficult for radiologists to observe the subtle changes in glucose levels until symptoms had reached a stage at which they were no longer meaningfully reversible. The team at UCSF tailored the algorithm to detect subtle features that were imperceptible to the human eye.
To achieve this, the algorithm was fed thousands of PET scan images from thousands of patients at all stages of cognitive impairment, from no impairment through to late-stage Alzheimer’s. Over time, the algorithm learned to discern between the particular features of a given scan which were of assistance in predicting the eventual onset of Alzheimer’s and those which were not. At the conclusion of the study, the algorithm had correctly predicted the onset of Alzheimer’s in more than 92% of cases. Importantly, the algorithm was able to predict the onset of Alzheimer’s, on average, more than six years before the symptoms constituting a typical diagnosis had manifested.
Leaving aside the obvious benefits relating to treatment and reversibility, early detection of Alzheimer’s could stand to have numerous applications in the context of succession and estate planning. For example, a predictive diagnosis could spur a testator to take steps to implement a proper estate plan well before his or her capacity to do so could become a concern. In turn, the testator would have the security that their plan of succession would be carried out according to his or her instructions, reducing the risk of contentious post-death litigation.
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One of the most gifted items this past holiday season were apparently the home DNA tests which can reveal your genetic ancestry or even if you are predisposed to certain health conditions. As anyone who has taken one of these tests (myself included) can tell you, the test results also contain a long list of other individuals who have also taken the test who you are related to, allowing you to reconnect with long lost relatives.
While my own test results did not reveal any family secrets, the same cannot be said for other individuals who have taken the test, as there have been a growing number of articles recently about how home DNA tests have revealed family secrets which otherwise may never have come to light. Although not all of these secrets are necessarily negative, such as finding a long-lost sibling, others, such as finding out that the individual who you believed to be your father was not in fact your biological father, could be life changing. For the latter, the phenomena is apparently common enough that the Atlantic has reported that self-help groups have formed around the issue, such as the Facebook group “DNA NPE Friends”, with “NPE” standing for “Not Parent Expected”.
In reading through these stories I couldn’t help but wonder if having such a result could impact your potential entitlements as a beneficiary of an estate. What happens if, for example, the individual who you previously believed to be your biological father but the test reveals was not in fact your father should die intestate, or should leave a class gift to his “children” in his Will without specifically naming the children. Could finding out that you were not actually biologically related to your “father” result in you no longer being entitled to receive a benefit as a beneficiary? Could you potentially be disinherited as a beneficiary of an estate by voluntarily taking a home DNA test if your right to the gift is founded upon you being related to the deceased individual?
Who is legally considered an individual’s “parent” in Ontario is established by the Children’s Law Reform Act (the “CLRA“). Section 7(1) of the CLRA provides that, subject to certain exceptions, the person “whose sperm resulted in the conception of a child” is the parent of a child. Section 7(2) of the CLRA further provides for a series of presumptions regarding the identity of the individual’s “whose sperm resulted in the conception of a child“, including, for example, that there is a presumption that such an individual is the birth parent’s spouse at the time the child is born, or the individual in question certified the child’s birth as a parent of the child in accordance with the Vital Statistics Act (i.e. signed the birth certificate). To the extent that there are any questions about parentage, section 13(1) of the CLRA provides that any interested individual may apply to the court at any time after a child is born for a declaration that a person is or is not the legal parent of the child.
In applying these presumptions to our previous questions about the home DNA test, if, for example, the individual who you previously believed was your biological father was your birth mother’s “spouse” at the time you were born, or signed the birth certificate, it would appear that, subject to there being a declaration under section 13(1) of the CLRA to the contrary, there would continue to be a presumption at law that the individual who you previously believed to be your biological father would continue to be your legal “parent” in accordance with the CLRA. To this respect, in the absence of a formal declaration under section 13(1) of the CLRA that the individual was no longer your legal “parent”, there would appear to be an argument in favour of the position that the individual who you previously believed to be your biological father would continue to be your legal “parent”, and that you should continue to receive any benefits which may come to you as a “child” on the death of your “father”, whether on an intestacy or a class bequest to his “children” in his Will.
This presumption, of course, is subject to the ability of any interested person (i.e. the Estate Trustee or one of the other beneficiaries) to seek a formal declaration under section 13(1) of the CLRA that you were not in fact a “child” of the individual you believed to be your biological father. If such a formal declaration is ultimately made by the court, you would cease to be the legal “child” of the individual who you previously believed to be your biological father, and would likely lose any corresponding bequests which may have been made to you on an intestacy or as a member of the class “children” in the Will.
The use of DNA tests to establish the potential beneficiaries of an estate is not a new phenomenon (see: Proulx v. Kelly). What is new, however, are people voluntarily taking such tests en masse in a public forum, potentially voluntarily raising questions about their rights to receive an interest in an estate when such questions would not have existed otherwise.
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If you are anything like me you have previously struggled with how you are to refer to Masters in court. Referring to them as “Master” always felt a little bit awkward, while at the same time you were always not sure if the more formal “Your Honour” was reserved solely for Judges.
If you have ever experienced similar uncertainty wonder no more, as the Consolidated Practice Direction for the Ontario Superior Court of Justice was recently amended to clarify how you are to refer to Masters in court. In accordance with the revised item 114 of the Practice Direction, it is confirmed that you are to refer to Masters as “Your Honour” in English and “Votre Honneur” in French.
Now that the potential embarrassment of using the incorrect honorific in referring to Masters has been resolved, now may also be an opportune time to provide a reminder that in accordance with item 58 of the same Consolidated Practice Direction lawyers are not required to gown when appearing before a Master.
So in summary, in accordance with the updated Consolidated Practice Direction you are to refer to Masters as “Your Honour” when appearing before them, while at the same time you are not required to gown. Consider yourself properly prepared for you next appearance before a Master.
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It is nearly a new year. It is during this time that we reflect on the past year, make goals for the upcoming year, and come across all sorts of ‘best of’ and ‘most popular’ rankings.
As such, I herewith present the most popular estate and trust cases from 2018, as decided solely by me (and without regard to any actual data):
- Moore v Sweet – the Supreme Court of Canada provided clarification regarding the juristic reason competent of the test for unjust enrichment, as well as confirmed the circumstances in which a constructive trust remedy is appropriate in the context of unjust enrichment.
- Re Milne Estate & Re Panda – In Re Milne (currently under appeal), the Superior Court of Justice found that multiple Wills were invalid where so-called ‘allocation clauses’ (also referred to as basket clauses) in the Wills provided the Estate Trustees with the discretion to determine which estate assets fell under which Will. Conversely, in Re Panda, the Superior Court of Justice declined to follow Re Milne and probated the Will notwithstanding the presence of an allocation clause. The Superior Court of Justice also addressed the roles of the court as either the ‘court of probate’ or ‘court of construction’ and whether a Will is a trust that is subject to the three certainties.
- Wall v Shaw – the Court of Appeal (sitting as the Divisional Court) held that there is no limitation period to objecting to accounts in an Application to Pass Accounts. The Court reasoned that a notice of objection does not commence a ‘proceeding’ for the purposes of section 4 of the Limitations Act.
- Seguin v Pearson – the Ontario Court of Appeal reiterated the different tests for undue influence that apply in the inter vivos and the testamentary context.
- Valard Construction Ltd. v. Bird Construction Co. – the Supreme Court of Canada found that a trustee had a fiduciary duty to disclose the terms of a trust (here, it was a bond) to the beneficiary, notwithstanding the fact that the express terms of the trust did not stipulate this requirement.
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It is that time of the year when media outlets release their “top” or “most popular” lists, like the Time 100.
I came across a rather interesting and topical list the other day called “The Most Obnoxious Celebrity Wills” by Ranker. This particular list features 24 celebrity Wills and I will excerpt some of the notable mentions here:
- Napoleon Bonaparte’s Will was first on the list. Apparently, his Will included a direction for his head to be shaved and for his hair to be divided amongst his friends.
- Harry Houdini asked his wife to hold an annual séance to contact his spirit.
- Philip Seymour Hoffman wanted his son to be raised in three different cities: New York, Chicago, and San Francisco.
- Charles Dickens gave directions for a particular dress code at his funeral.
- Fred Baur, the person who designed the Pringles can, wanted to buried in a Pringles can.
Turns out testamentary freedom is whatever you want to make of it but the enforceability of provisions like these are another matter.
Thanks for reading and Happy Holidays!
Humans are social beings. Some of us enjoy interacting with others, with animals, with virtual reality experiences, or all of the above!
I read a heartwarming story recently from the New York Times which featured a robot caregiver for the elderly named Zora. Zora was introduced to a nursing facility outside of Paris and she was rather well received.
The residents of this particular facility have dementia and other conditions that require twenty-four hour care. Zora can converse with the residents through the assistance of a nurse who types on a laptop for the robot to speak. Many residents formed an attachment to Zora and even treated the robot like a baby.
According to the makers of the Zora robot, it is the first robot in the world that takes care of people.
While a robot may not be able to replace the tender, love, and care of one’s family, it is easy to believe that a robot can make any one’s imagination wander, stimulate play, and even be a friend.
I say that as someone with very fond memories of Toy Story. The first Toy Story came out in 1995 and Toy Story 4 is about to be released in 2019 if you want to check out the trailer here.
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Text messaging is an increasingly popular method of communication.
Even though a text may take less than 30-seconds to write and they are often intended to be causal communications as opposed to letters or e-mails, they are still a record of our written communications with one and other.
In a recent family law matter from Saskatchewan, the court was asked to consider the admissibility of a mother’s text messages with her child’s father in the context of a dispute about their parenting schedule.
The texts were downloaded from the mother’s phone to her computer using a computer application called “Decipher Text”. The computer application then generated a print out of the parties text messages which “appears as many single spaced tightly grouped lines with a code at the beginning of each line and what appears to be text message communications placed at the end of the code” (at para. 7). Since the document is a printout of an electronic record, the court considered whether the electronic record meets the requirements of the Saskatchewan Evidence Act. Ultimately, the printout was found to be inadmissible because the mother failed to introduce affidavit evidence about how the printout accurately and completely depicts the parties’ communications as well as how “Decipher Text” actually works.
The crux of the problem was best described at paragraph 19:
Here the link between the smart phone text message and the form of evidence filed to prove that text message – the Decipher Text printout – is lacking. The intermediary here is a printout that is not a screen shot but is instead a computer rendering of some sort, filtered and formatted through the Decipher Text computer program/application. This intermediary program, or application, is not explained in any of the affidavits nor so commonly understood presently that it is possible to take judicial notice of what happens between the electronic record, here being the text messages, reaching the smart phone and that subsequently being converted into the printout attached. Thus a gap exists regarding authentication here.
In Ontario, section 34.1 of the Evidence Act, RSO 1990, c E. 23 governs the admissibility of electronic records in so far as it relates to the issue of authentication and best evidence rule. Like Saskatchewan, section 34.1(4) provides that the person seeking to introduce an electronic record has the burden of proving its authenticity.
Sylvestre v. Sylvestre, 2018 SKQB 105 (link here), is well worth the read for any litigator in today’s day and age. It is also well worth having in your arsenal of case law regarding how judicial notice may be given to other ways of presenting electronic evidence such as the screenshot.
Thanks for reading!
The Holiday season is full of merriment and celebration. But it may be difficult for those who have lost a loved one to partake in the festivities, as the sense of loss and loneliness is often deepened at this time of year.
A recent article tells us about holiday remembrance services that can offer relief to those coping without a person who meant a great deal to them. The author speaks of the death of his mother and of his attendance at a holiday remembrance service he learned of through his local Funeral Centre, which gave him great comfort. He touchingly notes:
“Sharing tales about my mother eased my sense of loss and helped me cope with the first Christmas without her. I felt no guilt about depressing others at Christmas. Instead I was instilled with the powerful sense of relief that comes from knowing others feel the same way. Being able to share my grief freely and without feeling like a burden is an emotional and powerful way to ease the pain and to comfort others too.”
I expect, as the author points out, that the most difficult time after our nearest and dearest pass away is not in the blur of the days immediately following the death and funeral, but when the hustle and bustle of that emotional time is over and everyone returns to living their lives. So it is nice to learn that holiday remembrance services that can help us honour loved ones and lift spirits are run by many funeral homes across the Greater Toronto Area.
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Some people would be surprised to know that there are now more Torontonians ages 65+ than children aged 15 and below. By 2041, the number of people over the age of 65 is expected to double. Nationally, seniors are projected to constitute one-quarter of the Canadian population by the year of 2036.
The City of Toronto found that a plan and an appropriate strategy were needed to be put in place, in order to ensure that the needs of the growing population of seniors are being met.
The City first addressed this question on April 12, 2011, when Council directed the Executive Director, Social Development, Finance and Administration to develop a comprehensive strategic plan for seniors in consultation with other levels of government, school boards, relevant community organizations and individuals, businesses and academia that is adequately funded, financially feasible and able to be implemented. A particularly important aspect of Council’s direction was the request that the strategy include helping seniors remain in their own homes longer.
On May 7, 2013, Council unanimously approved the Toronto Seniors Strategy: Towards an Age-Friendly City. Between 2013 and 2017, various progress reports were generated and on July 4, 2017, City Council adopted the Tenants First Phase 1 Implementation Plan. A particular area of interest in this plan was that the City Council approved the strategic integration of City programs and services for seniors and responsibility for management of the 83 seniors-designated buildings within the Toronto Community Housing Corporation portfolio under a new Seniors Housing and Services entity that is separate from Toronto Community Housing and is more directly accountable to City Council.
Most recently, a report for action was generated on April 30, 2018 indicating that the manner in which the City currently organizes its housing and services for seniors does not meet their needs and this problem will be exacerbated as the population continues to grow over the next 10-15 years.
The following recommendations were made:
- City Council to approve Version 2.0 of the Toronto Seniors Strategy and direct City Divisions and Agencies to implement the 27 high-impact recommendations contained in the report;
- City Council to direct the Executive Director, Social Development, Finance and Administration to work with the Executive Director of Financial Planning to report back on the financial impact of fully implementing the 27 high-impact recommendations once the service delivery plans have been fully developed for the medium-term initiatives.
It is encouraging to see that the City of Toronto is taking initiatives such as these to care for its aging population, moving forward. To learn more about this important endeavour check out the Toronto Seniors Strategy Version 2.0 report here.
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November 11, 2018 marks the 100th anniversary of Armistice Day. A century earlier, at the eleventh hour of the eleventh day of the eleventh month, hostilities in the First World War came to an end. Commonly observed in Canada and across the Commonwealth as Remembrance Day, memorial services are held to honour and commemorate those who served and those who died in service of their country.
Some symbols and acts of remembrance used to mark this solemn day, and their significance, are universal across all of the Commonwealth. The poppy, for example, is a familiar emblem of remembrance in Canada and abroad. Those of us who recall the poem “In Flanders Fields” by Canadian physician John McCrae may also credit it with the adoption of the poppy as a symbol of remembrance.
Fewer of us are likely aware that the custom of wearing a poppy should instead be credited to Moina Michael, a professor at the University of Georgia. After the end of the First World War, Michael took inspiration from the well-known opening verse of McCrae’s poem and conceived the idea of selling silk poppies to raise funds to assist disabled veterans. The practice was subsequently adopted by veterans’ groups in other nations including in Canada. The Royal Canadian Legion’s Poppy Fund continues to provide financial assistance and support for Canadian veterans.
Canada also retains certain traditions that are unique to its celebration of remembrance. The selection of a Silver Cross Mother is one such tradition. This tradition is named for the Silver Cross, a medal historically awarded to the mother or next-of-kin of any member of the Canadian Forces who lost their life in the line of duty. Each year dating back to 1936, the Royal Canadian Legion has chosen one such mother as the National Silver Cross Mother. As part of the Remembrance Day ceremony at the National War Memorial in Ottawa, the Silver Cross Mother lays a wreath on behalf of all mothers who have lost a child or loved one in service of their country.
The selection of this year’s recipient, Anita Cenerini, is a watershed moment in dispelling the stigma surrounding mental illness and post-traumatic stress in veterans. It is the first time in the history of the custom that the honour has been bestowed on a mother whose child’s life was taken not in active duty, but personally, after a battle with the effects of post-traumatic stress. The Royal Canadian Legion is optimistic that this year’s ceremony will encourage veterans battling the effects of PTSD and mental illness, as well as their loved ones, to reach out for assistance and counselling.
Thanks for reading. Lest we forget.