Category: In the News
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),  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.
It is the start of a new year and a new decade. Many of us recently enjoyed some holidays and had much to eat and drink. Many of us are also feeling the lingering effects of this merriment. I figured that an uplifting, feel good read would be a nice way to start 2020. I was thus delighted to learn about Eva Gordon, and her estate.
Ms. Gordon passed away at the age of 105. She grew up on an orchard in Oregon, never graduated from college, and worked as a trading assistant at an investment firm in Seattle. In 1964, she married her husband, who was a stockbroker. They did not have any children together. Neither Ms. Gordon or her husband came from money, and they lived a modest life. Ms. Gordon’s godson, who was the Estate Trustee, joked that if Ms. Gordon and her husband went out for lunch or dinner, then they would make sure to bring their Applebee’s coupon.
From the salary that Ms. Gordon received from her employer, she purchased partial shares in numerous stocks, including oil and utility companies, and was an early investor in Nordstrom, Microsoft, and Starbucks. Unlike many at that time, Ms. Gordon held onto these valuable stocks. As a result of this shrewd investing, Ms. Gordon’s wealth increased considerably over the latter years of her life.
Instead of wasting away her money, in her Will, Ms. Gordon decided to bequeath $10 million to various community colleges, with about 17 colleges each receiving cheques for $550,000. Interestingly, no stipulations were put into place as to how the money was to be spent by the colleges. The colleges could do with the money as they wished. For many of them, it was one of the largest donations they had ever received.
For an interesting perspective on the impact of donations to modest, as opposed to elite, institutions, you should listen to Malcolm Gladwell’s Revisionist History podcast (episode 6).
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A recent decision by an Egyptian court saw the reversal of the trend in following Islamic Sharia inheritance law under which female beneficiaries are entitled to half the interest of their male counterparts.
The claimant, a human rights lawyer, applied to obtain the same rights as her brothers on the death of her father. Her case was previously dismissed by two courts.
In Egypt, Sharia principles are typically applied unless the parties agree that Christian inheritance laws, which do not favour male beneficiaries over females, instead be followed. In this case, the claimant and her brothers agreed that the administration of their father’s estate would not be subject to Sharia inheritance rules.
Last year, a proposed law in Tunisia designed to promote equality in respect of inheritances sparked discussion regarding unequal inheritances in a number of jurisdictions including Egypt. A 2017 survey suggests that over half of Tunisia’s population remains opposed to equal inheritance rights.
It is anticipated that this decision may result in significant change in jurisdictions where Sharia law has historically been applied in respect of personal property, regardless of religion.
Canadian courts have also considered the issue of cultures that may support an estate plan favouring sons over daughters simply on the basis of their gender. In Grewal v Litt, 2019 BCSC 1154, the daughters of the deceased challenged the Wills left by their parents, who both died in 2016, on the basis that they discriminated against them in favour of their brothers on the basis of their sex. The four daughters applied under Section 60 of the Wills, Estates and Succession Act, SBC 2009, c 13 (the “WESA“), for the variation of the Wills that directed the payment of $150,000 to each daughter, while the residue of the estates valued at greater than $9 million was left to the two sons.
Justice Adair noted that there was no dispute that the parents owed a moral obligation to their daughters under BC law, and, as the Wills made inadequate provision for them, they should be varied under the WESA. The Court attempted to resolve the matter by balancing the adequate, just, and equitable provision for the daughters with their parents’ testamentary autonomy and varied the division of estate assets from approximately 93% in favour of the sons with only a combined 7% for the daughters, to the more equitable division of 15% of the value of the estates for each daughter and 20% for each son. Notwithstanding the granting of the variation of the Wills, the Court stopped short of finding that the parents’ testamentary intentions were motivated solely by unacceptable discrimination against the daughters.
While many provinces do not recognize a parental obligation to benefit a non-dependant adult child after death, coming years may nevertheless see an increase in the number of challenges to a will on the basis that its terms are discriminatory.
Thank you for reading.
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Recent amendments to Canada’s Divorce Act will come into effect on July 1, 2020. While many of these changes may not be directly relevant to estate law, estate practitioners may nevertheless wish to familiarize themselves with these developments before July.
The amendments introduced under Bill C-78 serve a number of objectives, including the advancement of the best interests of the child and increased access to justice. They can be briefly summarized as follows:
- New criteria, independent of the Children’s Law Reform Act, in respect of the best interests of the child, taking into account the child’s views and preferences;
- Updates to terminology designed to enhance access to justice and focus on the responsibilities of parents owed to their children: for example, custody orders will soon be referred to as “parenting orders”, and access will instead be known as “contact”;
- The removal of presumptions as to equal parenting time and maximum contact being in the best interests of the child.
The new Divorce Act also imposes a duty upon counsel to encourage family dispute resolution unless clearly inappropriate in the circumstances, in a manner consistent with Rule 3.2-4 of the Law Society of Ontario’s Rules of Professional Conduct. Some provinces are expected as a result to introduce legislation providing judges with the discretion to direct parties to family mediation and/or parenting coordination (as has already happened in British Columbia).
Bill C-78 has also resulted in updates to the Family Orders and Agreements Enforcement Assistance Act. This act, which already facilitates access to information held by financial institutions with respect to the assets of debtors, will soon permit access to income information from Canada Revenue Agency for the purposes of recalculating support. The enhanced act is expected to reduce costs to parties and to courts of obtaining necessary disclosure.
Thank you for reading.
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Acting as an estate trustee can be complicated. Complications are multiplied where the estate includes property that is or has been used in a manner contrary to the Cannabis Control Act.
Under the Cannabis Control Act, S.O. 2017, Chapter 26, as amended, various offences are created involving the production, sale or other distribution of cannabis. Vis-à-vis landlords, section 13 of the Act makes it an offence to “knowingly permit a premise of which he or she is a landlord to be used in relation to activity prohibited by section 6”. Section 6 provides that no person shall sell cannabis, other than an authorized cannabis retailer.
The Act provides for penalties for landlords of at least $10,000 and not more than $250,000 or imprisonment for a term of not more than two years less a day, or both. Fines are subject to an additional 25% Victim Fine Surcharge.
Additionally, the court may, upon conviction, order that a premise be closed to any use for a period not exceeding two years. Prior to conviction, the police may cause the premises to be closed immediately. The premises are to be closed until the final disposition of the charge, subject to an order of the court lifting the closure.
A defense to a charge against a landlord under the Act is the fact that the landlord took reasonable measures to prevent the prohibited activity.
Additionally, forfeiture could be sought by the Crown under the Civil Remedies Act.
An estate trustee holding real property should take steps to ensure that he or she knows what is happening at the property, and to ensure that the property is not being used for illegal activity. In addition, the estate trustee should document the steps that are taken to prevent illegal activity. Leases should be reviewed in order to ensure that they prohibit illegal activity.
For further information, see “The Ontario Cannabis Control Act and Implications for Commercial Landlords” by David Reiter and Brian Chung.
For a blog on Cannabis and Estate Law, see my prior blog, here.
Have a great weekend.
According to this CNN article, a scientific breakthrough has occurred thanks to research from the Arizona State University and Texas A&M University. These scientists have, for the very first time, identified the structure of telomerase in plants.
Telomerase is an enzyme that creates the DNA of telomeres.
>>Telomeres protects our cells from aging as our cells multiply.
>>>If our cells are protected from aging, then so will our bodies…
This breakthrough will allow scientists to study how telomerase in plants compare to the ones in animals, including humans! For example, there is a pine tree, named Methuselah, that is 4,845 years old in California. It is so inimitable that the location of this particular pine tree is kept secret for protection.
On the flip side, certain cells that have too much telomerase can be deleterious to our health, like cancer cells. The ability to stop a cancer cell from multiplying by shortening its telomeres could be revolutionary!
Fun fact: these components of life are so important that the 2009 Nobel Prize in Physiology or Medicine was awarded to Elizabeth H. Blackburn, Carol W. Greider, and Jack W. Szostak for their research on how chromosomes are protected by telomeres and telomerase.
Thanks for Reading!
Yesterday, Natalia Angelini blogged on a “purification grave” for students in Holland. The grave allows students to reflect on their lives, and their inevitable death. The grave serves as a very real memento mori, or awareness of our own death.
Another memento mori is the Swedish practice of “döstädning”, or death cleaning. As explained in Margareta Magnusson’s The Gentle Art of Swedish Death Cleaning: How to Free Yourself and Your Family From a Lifetime of Clutter, the practice calls for the decluttering of one’s lifetime of possessions so that your death is not such a burden on those left behind.
Magnusson advocates the proactive and mindful clearing out of possessions. This is therapeutic and cathartic for the cleaner, and benefits those who have to deal with a person’s “stuff” after they die.
One test of whether to discard something or hang on to it is to ask yourself whether anyone will be happier if you were to hold onto the object. This is similar to Marie Kondo’s test of asking yourself whether the item “sparks joy”.
Unlike Marie Kondo’s methods, Magnusson’s approach is a slower, more methodical one. The “gentle” process involves examining one’s possessions, one by one, and deciding whether to keep it, gift it to family or friends, donate it to a charity, recycle it or trash it. It is a slow shedding of the baggage of life.
As with other minimalist approaches, less is more: for you and for those you leave behind.
Thanks for reading.
No doubt our youth must navigate an increasingly complex world, and so it isn’t any surprise to see a growing focus on mental health issues and novel ways to address them. This is a very serious issue, yet I couldn’t help but chuckle when reading an article discussing a Dutch university’s new and original stress-management tool. Wait for it…lying in a grave!
Just when life’s challenges are getting you down, you ditch your electronic devices (for 30 minutes to 3 hours), lie in a grave, contemplate the alternative and put your problems into perspective. One student is reported to have said the following after her experience:
“When you think about death, you automatically also think about life. That is because you realize that life isn’t endless and that we are all going to die at one point. It makes you think about what do I want to do in life, and what do I think is the most important, what does my heart feel, what does my mind want to do.”
Maybe it’s the yogi in me, but this feels like a new form of mediation, as one author put it “an invitation to listen to yourself”. I would love to see this service available to students, and adults, locally. Getting into nature is cathartic in its own right, and the option of literally getting into the ground (with the added comfort of a pillow and mat) to reflect seems like a very peaceful and relaxing experience. There are lots of other ways we can let nature give us a boost. I dare you – when summer returns, channel your inner child and roll down a grassy hill!
Have a great day,
As many of us know, the federal government’s legislation on medical assistance in dying (“MAID”) – Bill C-14 – was passed on June 17, 2016.
Only physicians and nurse practitioners (in certain provinces) are permitted to provide MAID in two ways:
1) directly administer the substance that causes death (e.g. an injection of a drug); or
2) provide or prescribe a drug that is self-administered to cause death.
In order to be eligible for MAID, one must meet all of the following criteria:
- be eligible for publicly-funded health services in Canada;
- be at least 18 years of age and capable of making their own health care decisions [emphasis added];
- have a grievous or irremediable medical condition;
- make a voluntary request for MAID; and
- give consent to receive MAID after being provided with all of the information necessary to make the decision.
For more information on MAID, please see the Government of Canada’s webpage on “Medical Assistance in Dying”.
Dr. Stefanie Green, in a recent British Columbia case, said that a person with dementia who meets the criteria, should be eligible for MAID, despite the previously widespread assumption that persons with dementia could not meet the eligibility requirements.
Mr. Gayle Garlock became one of the first Canadians with a dementia diagnosis publicly reported to have received MAID. The key issue in deciding whether a person is eligible for MAID, particularly in the case of a person with dementia, is asking whether they have the mental capacity for informed consent, intolerable suffering and a foreseeable death.
In Mr. Garlock’s case, he was diagnosed with Lewy body dementia in 2014, when he was 70 years old. According to Mr. Garlock’s wife, one of the losses that he would define as “intolerable suffering” was being unable to read.
By the spring of 2019, Mr. Garlock’s condition had deteriorated such that his mental processing had slowed and he struggled in conversation. Dr. Green, determined that he still knew what was going on around him and with him and that he understood that he had dementia and that it had progressed. His MAID application was approved on May 9, 2019. Mr. Garlock passed away peacefully with his wife and sons at his bedside.
According to Dr. Green, “This is not an expansion of our law…This is a maturing of the understanding of what we’re doing”.
This is important news to those persons suffering with dementia but is also a reminder to the medical community of the importance of approaching each case individually and carefully, particularly where a patient’s capacity may be in question.
To learn more about Mr. Garlock’s story, please see CBC’s recent article here.
Thanks for reading!
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There are constantly new studies suggesting different ways to slow both physical and mental aging. This month alone, the news has featured research suggesting the following:
- Aging with pets in place can increase life satisfaction overall, and research suggests that pets may be associated not only with less loneliness, stronger social support systems, and increased participation in the community, but also better cardiovascular health, lower cholesterol, and lower blood pressure.
- A study from the University of Leeds suggests that tickling may slow down aging. The study involved the use of electrodes on the participants’ ears to simulate a tickle-like tingling sensation. Two weeks of 15-minute daily tickling therapy were believed to improve the balance of the autonomic nervous system.
- People who are optimistic may live longer. For groups of both women and men, those who were optimistic long-term had a better chance of living to age 85 (and beyond). Optimism has been linked with goal-setting and healthier habits and, accordingly, fewer optimistic people are believe to die prematurely from stroke, heart disease, or cancer.
- Consistent with previous research, a new study by the University of Iowa has linked exercise to a healthy aging brain. Even a single bout of exercise was considered to improve cognitive function and working memory in older participants.
While there may be nothing to prevent aging altogether and/or to totally eliminate the risk of suffering from Alzheimer’s disease or other age-related cognitive decline (absent any major scientific breakthrough), in general, taking health and wellness more seriously from an earlier age may improve quality of life and independence down the road.
Thank you for reading.
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