Category: In the News
In estate litigation, we often hear about Alzheimer’s and how it can affect the daily lives of so many Canadians. Unfortunately, there is no treatment for Alzheimer’s at this time, other than medication that can be taken to (hopefully) slow its effects and prolong one’s quality of life.
Interestingly, Biogen Inc. has been working on what has been labelled a “controversial” new drug called “Aducanumab”. The controversy is, first of all, the rather bumpy ride this new drug has had with the U.S. Food and Drug Administration (FDA) and the regulatory approval that this treatment needs in order to be made available to consumers.
According to Biogen, if this drug receives regulatory approval, it will become the first treatment to slow decline in people with Alzheimer’s disease.
The problem is that to date, it is not clear as to whether there is “substantial” evidence of effectiveness which is what is required in order to gain the coveted regulatory approval that allows the drug on the market.
A recent update is not positive for Biogen as an independent advisory committee to the FDA found that the clinical data does not show the drug to be effective for the treatment of Alzheimer’s disease.
I am sure this is not the outcome desired by Biogen strictly from a financial perspective but it is certainly not a positive outcome for the many people affected by Alzheimer’s today.
Here is to hoping that if this treatment does not prove to be successful, that another one becomes available soon.
To learn more about recent updates on Biogen Inc. here is an article from November 10, 2020.
Thanks for reading!
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A recent CBC article demonstrates the importance of having a testator regularly review, or at least consider, their current estate plan to ensure that it conforms to their testamentary intentions, and the potential pitfalls of failing to do so or of failing to seek legal advice.
Eleena Murray, of Vancouver, British Columbia, died leaving a Last Will and Testament dated sometime in 2003. The Will provided cash legacies to various relatives, totaling approximately $440,000, and left the residue of Eleena’s estate to a charitable organization, the SPCA.
Although it is not clear, at the time the Will was drawn, it appears as if the residue of the Estate would have largely consisted of her interest in her house, situated in the Point Grey neighbourhood of Vancouver. Presumably, although it is unclear, the total value of all of the cash legacies was likely close to the fair market value of the house, such that Eleena intended to divide her estate roughly equally between the legatees and the charity.
However, in the years since the Will was drawn, the real estate market in Vancouver saw massive growth, with property values rising significantly, and the value of the residue of Eleena’s estate along with them. In 2017, perhaps recognizing what had become a considerable discrepancy between the values of the cash legacies and the value of the house, Eleena apparently drafted a handwritten note containing, among other instructions, an intention to limit the SPCA’s interest in her estate to a flat bequest of $100,000.
It is unclear whether the note was signed by Eleena or subscribed to by attesting witnesses (although two witnesses swore affidavits attesting to the fact that the note was prepared by Eleena). Eleena died only months later, without having amended her Will to reflect her purported intentions by way of the note. Although the value of the house, and therefore the residue of the Estate, increased significantly, Eleena never formally amended her estate plan.
Litigation has since ensued, with Eleena’s family members asserting that the handwritten note is a testamentary document that accurately represents her intentions.
Were this litigation taking place in Ontario, a court might find that the handwritten note would constitute a holograph will, assuming it was signed by Eleena. A holograph will is a will that is made entirely in the handwriting of the testator and signed by them, without the need for attesting witnesses.
In British Columbia, the analysis is slightly more nuanced. There is no equivalent provision under BC legislation that specifically recognizes the validity of holograph wills, as the Succession Law Reform Act does in Ontario. That said, British Columbia’s Wills, Estates and Succession Act empowers a court to make an order that a record purporting to be a will if the court is satisfied that the document represents,
- The testamentary intentions of a deceased person;
- The intention of a deceased person to revoke, alter, or revive a will; or
- The intention of a deceased person to revoke, alter, or revive a testamentary disposition in a document other than a will.
The court is equally empowered to make an order that a will that is not made in conformity with the applicable legislation is equally as effective as if it had been.
In the case at hand, the prevailing question will likely be whether the court is satisfied that the handwritten note accurately represents Eleena’s testamentary intentions. If so, the subsequent issue to be considered is whether the balance of the Estate that is not dealt with pursuant to the note passes by way of an intestacy, but that is a topic for another day.
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Dying with Dignity (DWD) Canada, a not-for-profit organization, has noted a rise in calls from Canadians inquiring about medical assistance in dying (MAID) since the start of the pandemic.
The individuals calling DWD are largely concerned about the prospect of dying an uncomfortable death from Covid-19. Since MAID is only available to a small group of individuals who meet the rigorous conditions set out in Canada’s assisted dying law, Helen Long, CEO of DWD Canada, urges people to complete an advanced care directive to ensure their end of life wishes are met. Advanced care planning advice, and specifically how it relates to Covid-19, can be found on the Dying with Dignity website.
Other DWD callers express concerns about the difficulty of accessing the healthcare system during the Covid-19 pandemic. These callers worry about whether they will be able to in fact access MAID programs when needed. For example, in March of 2020, some MAID services were shut down in Ottawa and Hamilton to prevent the spread of Covid-19 and to preserve health-care resources. However, other regions have deemed MAID to be an essential service and have implemented safety protocols to ensure adequate protection for clinicians conducting this service.
Some long term care homes reject MAID on religious grounds and, therefore, will not allow the services to be conducted on their property. It is clear that MAID has become increasingly difficult to access for many people.
Currently, Bill C-7 is before the House of Commons. Bill C-7 contains the government’s proposal to expand eligibility for assisted death. One way that the government seeks to do so is by modifying the current stringent requirement of a “reasonably foreseeable death.” Although Bill C-7 would maintain the general notion of a reasonably foreseeable death as a precondition to accessing MAID, it would establish more lenient eligibility requirements for those who are near death. Bill C-7 seeks to make MAID more accessible by alleviating some of the more burdensome conditions that presently need to be met.
Under the current assisted dying regime, 6,465 medically assisted deaths are expected in Canada in 2021. This legislation would enable almost 1200 more medically assisted deaths. These were the numerical predictions expected prior to the pandemic. The exact number of additional requests for MAID due to Covid-19 remains to be seen.
Thanks for reading … Enjoy the rest of your day.
Suzana Popovic-Montag & Tori Joseph
I just checked the news, and it appears that “voting” is a hot topic right now.
A question then occurred to me: Can an attorney under a Power of Attorney vote in a public election on the grantor’s behalf?
Under Ontario’s Substitute Decisions Act, 1992, s. 7(2), a power of attorney may authorize a person “to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will.” Under s. 46(1), a person may give a written power of attorney for personal care, authorizing the person or persons named as attorneys to make, on the grantor’s behalf, decisions concerning the grantor’s personal care.
However, voting in a public election is considered to be an act that is personal in nature to the individual and not something that can be done by an attorney under a power of attorney.
(Not all voting by an attorney is prohibited: An attorney may have the ability to vote in the place of the grantor in a corporate context.)
According to the website “Probate Stars”, in most US states, voting by attorney is not allowed. In some states, for example, Florida and Arizona (gotta love Arizona), legislation expressly prohibits an attorney from voting on behalf of the grantor.
In other states, voting by attorney is presumed to be not allowed, as voting is considered to be an act that is “personal” in nature, and cannot be delegated. Quoting from a Tennessee appeals court decision of Rich Printing Co. v. Estate of McKeller (citation not given):
It is axiomatic that an agency may be created for any lawful act and that whatever a person may lawfully do, if acting in his own right and in his own behalf, he may delegate that authority to an agent. It is also axiomatic that authority cannot be lawfully delegated which is illegal, immoral or opposed to public policy, nor can one delegate an act which is personal in its nature, such as designating an agency to perform a personal duty or a personal trust. Of course an elected officer cannot delegate one to hold the office to which he has been elected in the absence of statutory authority so to do, nor to cast his vote for him.
In Ontario, it would appear that this reasoning applies as well.
Even though an attorney cannot vote for the grantor, it may be possible for the grantor to authorize someone to vote on their behalf through a proxy in limited circumstances. For example, there is a reference to proxy voting in the “Voter’s Guide for Ontario Municipal and School Board By-elections 2016-2018”. The Guide confirms that an attorney cannot vote on behalf of the elector, but a properly appointed proxy can.
Thank you for reading.
We have previously blogged extensively on the issue of inaccessibility of digital assets and the absence of legislation in Canadian provinces, including Ontario, to clarify the rights of a fiduciary to access and administer digital assets on behalf of a deceased or incapable rights holder.
While the Substitute Decisions Act, 1992, and Estates Administration Act provide that attorneys or guardians of properties and estate trustees, respectively, are authorized to manage the property of an incapable person or an estate, Ontario does not currently have any legislation that clarifies these rights by explicit reference to digital assets. While continuing powers of attorney for property and wills can be crafted to explicitly refer to digital assets and the authority of an attorney for property or estate trustee to access accounts and information in the same manner in which the user him or herself was able, access issues can still arise during incapacity or after death.
A recent CBC article highlights the inadequacy of legislation facilitating access to digital assets. A surviving wife of over forty years was the estate trustee and sole residuary beneficiary of her late husband’s estate. In seeking access to an Apple account that she shared with her husband, she was told that she would require a court order, even after providing Apple with a copy of her husband’s death certificate and will. Apple cited the United States’ Electronic Communications Privacy Act, which predates the prominence of computers and the internet in our daily lives, as prohibiting them from distributing personal electronic information. Four years after her husband’s death in 2016, the Ontario woman is now obtaining pro bono assistance in seeking a court order granting access to the shared account in the absence of any other options.
It is anticipated that the adoption of the Uniform Law Conference of Canada’s Uniform Access to Digital Assets by Fiduciaries Act would resolve some or all of the issues currently faced by Ontario residents in accessing and administering digital assets. However, now over four years since its release, only Saskatchewan has implemented provincial legislation mirroring the language of the uniform act.
It will be interesting to see in coming years whether legislative updates will address continued barriers to the access and administration of digital assets and the corresponding access to justice issue.
Thank you for reading,
Other blog entries that may be of interest:
“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”
In December of 1963, as America mourned the assignation of John F. Kennedy, Birch Bayh , the young United States Senator from Terre Haute, Indiana, introduced an amendment to the Constitution aimed at curing its dangerously vague language on vice-presidential succession and presidential disability. One of the many contingencies it aimed to address was, what happens if the President is unable to discharge the powers and duties of his office?
With the recent hospitalization of the current President after his diagnosis of Covid-19, much of the water cooler buzz, the nightly news, and social media was atwitter with questions surrounding the 25th and whether it would be evoked.
Such declarations are rare, but not uncommon. Presidents Reagan and George H.W. Bush each transferred power using 25 during pre-planned surgeries. But while we do not know, as of yet, if the White House counsel drafted language affording the transfer of power to the Vice-President (albeit temporarily) were the President’s health to take a turn, it did get us thinking that such a document could be akin to the most important Power of Attorney in the world.
In Ontario, the subject of a living will often comes up in similar circumstances. But the term “living will” is not used in any formal way. We have written about living wills here in the past. A more common term is advance directive: a document that clearly outlines your treatment and personal care wishes.
But whether you call it a living will or advance directive, they are not the same as a Power of Attorney (POA): a legal document in which you name a specific person to make decisions on your behalf. While an advance directive can form part of your POA for personal care, so your attorney is aware of your wishes, it does not carry the same weight with the court.
Finally, while we may not know whether the president executed a document under the 25th Amendment or if one was even drafted, it is a good reminder that even if our own illness or temporary absence does not pose a national security risk, outlining our wishes about care is always a capital idea.
Thanks for reading.
Ian Hull and Daniel Enright
Recent reports suggest that divorce and separation rates are on the rise during the pandemic (with rates of separation cited as having increased as much as 20% to 57% from last year, depending on the jurisdiction). This has been in part attributed to the stresses of lockdown and worsening financial situations.
Many Canadians may not be fully aware of the legal impact that separation and divorce have upon an estate plan, mistakenly believing that there is no real difference between marriage and a common-law partnership. However, the distinction in Ontario remains important from an estate planning perspective – for example:
- A common-law or divorced spouse does not have any automatic rights upon the death of a spouse who does not leave a will, whereas married spouses take a preferential share and additional percentage of a predeceasing married spouse’s estate on an intestacy;
- A married spouse has the right to elect for an equalization of net family property pursuant to the Family Law Act on death, whereas common-law spouses have no equalization rights on death;
- Marriage automatically revokes a will (unless executed in contemplation of the marriage), whereas entering into a common-law relationship has no such impact; and
- Separation (in the absence of a Separation Agreement dealing with such issues) does not revoke a will or any gifts made to a separated spouse, whereas gifts under a will to a divorced spouse are typically revoked and the divorced spouse treated as having predeceased the testator.
While top of mind for estate lawyers, lawyers practising in other areas of law and their clients may not necessarily turn their minds to the implications that separation and divorce may have on an estate plan, particularly soon after separation and prior to a formal divorce. With the potential for family law proceedings to be delayed while courts may not yet be operating at full capacity, combined with elevated mortality rates among certain parts of the population during the pandemic, it may be especially worthwhile in the current circumstances to remind our clients of the importance of updating an estate plan following any material change in family circumstances, including a separation or divorce.
Thank you for reading and stay safe,
I’ve always loved a good story. I found this story from CNN particularly intriguing as it has to do with art that was stolen by the Nazis, and how this stolen piece of art eventually made its way to the U.S. just like its family had done after the Nazis came to power.
According to the Mosse Art Restitution Project, Rudolf Mosse was a successful Jewish entrepreneur in the late 19th and early 20th century. He had a large publishing and advertising business that included the publication of 130 newspapers and journals. In 1900, Mosse purchased “Winter” directly from the artist, Gari Melchers, at the Great Berlin Art Exhibit. Mosse later died in 1920. The sole heir of his estate was his daughter, Felicia Lachmann-Mosse. Thus, Felicia came to own Mosse’s extensive art collection. Felicia and her husband also took over and ran one of Mosse’s most prominent publications, Berliner Tageblatt, and the newspaper was renowned for its criticism of Adolf Hilter. When Hilter came to power in 1933, Felicia and her husband were forced to leave Germany. According to CNN, “Winter” was amongst the art that was seized by the Nazis when the Mosse family fled their home but “Winter” was only one painting out of the hundreds of pieces of artwork that were stolen at the time.
Some of this art was auctioned off by the Nazis; some have simply disappeared. “Winter” left the Nazis’ possession and changed hands a number of times before Barlett Arkell bought it, as an innocent purchaser who was none the wiser, from a prominent gallery in 1934. Since 1934, “Winter” has been displayed in the Arkell Museum in Canajoharie, New York. When the Museum discovered that “Winter” was taken illegally from its original owner, the painting was surrendered to the FBI in 2019.
“Winter” has since been reunited with the Mosse family by way of the Mosse Foundation which represents the remaining heirs of Felicia Lachmann-Mosse. To date, the Mosse Art Restitution Project remains actively engaged in their work to recover all of the artwork that was stolen by the Nazis.
The Mosse Foundation and the Project have plans to auction “Winter” in the near future and it is estimated to be worth hundreds of thousands of dollars.
Talk about a never-ending estate administration.
Thanks for reading!
An exciting announcement (for those in the field of wills and estates) came out of the Superior Court of Justice on October 6, 2020. There has been an amendment to the Province-wide Consolidated Notice to the Profession, Litigants, Accused Persons, Public and Media which provides for the electronic filing by email of probate applications, supporting documents, and responding documents with the Superior Court of Justice.
The email address for the court location in which the materials will be filed can be located here.
With regard to filing by email, the amendment provides the following guidance:
- The application form and supporting documents (affidavits, consents, proof of death, etc.) should be submitted by email only;
- Original documents filed in support of the application (i.e. wills, codicils etc.) and certified copies must be filed in hard copy by mail or courier to the SCJ location where the application was filed or provided at the court office;
- Estate administration tax payments and any filing fees must be sent by mail or courier to the SCJ location or provided at the court office;
- Certificates of Appointment of Estate Trustee will be electronically issued and delivered by email to the address provided by the applicant; and
- Applicants must complete a new Information Form (located in the consolidated notice which is linked below) and email it to the court together with the probate application.
Probate applications filed prior to October 6, 2020 can be resubmitted to the court by email, which will allow Applicants to keep their place in the original queue while providing for the ability to receive electronic issuance of the Certificate of Appointment of Estate Trustee.
The amendment does not apply to estate litigation documents, which should continue to be filed through the Civil Submissions Online portal.
For further details on the amendment, including the new Information Form, and the SCJ’s specific requirements regarding the form of emails when filing for probate by email, please see here.
It appears that this amendment will not only provide for the streamlining and ease that comes with access to electronic filing (especially in a COVID-19 world), it may also bring the possibility of having applications from higher volume court locations processed by staff in lower volume court locations to assist those that may be currently experiencing backlog.
Thanks for reading, and happy filing!
I recently blogged on a case arising out of Nova Scotia, addressing the question of whether or not a third party can block an eligible person from accessing MAID (Medical Assistance in Dying).
An elderly couple, previously referred to as X and Y, now identified as Katherine Sorenson and Jack Sorenson, were engaged in a heartbreaking dispute – Mr. Sorenson, who has COPD and has been found eligible to access MAID, wants to die, and his wife, Mrs. Sorenson, does not want to let him.
In July, 2020, Mrs. Sorenson brought an application, arguing that her husband did not meet the eligibility requirements for MAID. Shortly thereafter, she sought an interlocutory injunction to prevent the MAID procedure from going ahead, a request that was rejected by Justice Peter Rosinski. Mrs. Sorenson appealed her decision to the Nova Scotia Court of Appeal.
That appeal was heard at the end of September, and the unanimous decision was rendered October 2, 2020. The Court found that it has no jurisdiction to determine eligibility for medical assistance in dying, including whether an individual has the capacity to make decisions about end-of-life treatment, as those decisions should be left to approved healthcare assessors. In reaching this decision, the Court explained that the legislative history giving rise to the Criminal Code amendments that permit MAID, establishes that Parliament considered, and rejected, a role for judges in the pre-approval or review of MAID eligibility assessments. In doing so, Parliament made clear that the role rests with approved healthcare assessors.
Further, while the Court agreed with Mrs. Sorenson, that there are a variety of contexts where the courts have the ability to assess whether individuals have capacity (with regard to decision making surrounding property and personal care, for example), courts simply do not have the institutional capacity to review challenges to eligibility assessments “in a manner that respects the urgency inherent in a MAID context.” The court saw this matter as a clear example that demonstrates a scenario where an individual, having already been found eligible for MAID (which includes experiencing enduring suffering), would be forced to wait extended periods of time, by virtue of the involvement of the court. This would include waiting on the outcome of production motions, discoveries, and court hearings where health professionals and others are required to testify, among other procedural steps.
The Court ultimately determined that Mrs. Sorenson failed to raise a justiciable issue, and dismissed her appeal. However, after providing this conclusion, the Court provided further comment on Mrs. Sorenson’s standing, determining that she did not have private or public standing to challenge Mr. Sorenson’s MAID eligibility assessment. The Court held that while, as his spouse, Mrs. Sorenson undoubtedly loves Mr. Sorenson deeply, and wants what she feels is best for him, “…those feelings do not give her standing to challenge the determination that he meets the eligibility criteria for MAID…the Supreme Court of Canada in Carter recognized personal autonomy in medical decision-making was to be respected and protected.” Therefore, the Court concluded that permitting Mrs. Sorenson standing to question the outcome of Mr. Sorenson’s MAID assessment, would fail to acknowledge this fundamental right of her husband.
Thanks for reading!