Category: In the News
With so much taking place around us now, I forced myself to choose a topic for today’s blog that, although still estates related (this being, after all, an estates blog), allows me to think about something beautiful. I landed on art.
Full disclosure: I have blogged about art and estates before. See here and here for some shameless self-promotion. Without wanting to revisit these topics, I did some searching and was intrigued by this Financial Times article about the Art Loss Register (ALR).
The ALR is the world’s largest private database for lost and stolen art, antiques, and collectibles. Their services are essentially twofold. First, the ALR assists to deter the theft of art by promoting the registration of all items of valuable possession on its database and also the expansion of checking searches. Second, by operating a due diligence service to sellers of art, the ALR operates a recovery service to return works of art to their rightful owners. In addition, the ALR has expanded to negotiate compensation to the victims of art theft and the legitimising of current ownership.
In addition to art dealers, insurers, and museums, the ALR also assists private individuals including beneficiaries and trustees. A trustee who is intending to liquidate art may wish to rely on the ALR to prove title and authenticity, thereby potentially increasing value and mitigating risk of fraud.
If you find this topic to be interesting, please consider these other related blogs:
Legal Aid Ontario has published a notice setting out changes to coverage for Consent and Capacity Board appeals.
Effective June 23, 2020, Legal Aid Ontario is making the following changes to its certificate coverage:
- an additional 10 hours will be offered to the current 25 hours allocated on the CCB appeal tariff. This increases total coverage to 35 hours
- a new 10-hour certificate for motions for emergency/urgent CCB treatment orders held in the Superior Court is being introduced
The full notice can be found here.
If you have applied for CCB appeal coverage from March 13 onward, Legal Aid Ontario will be contacting you regarding the notice. If you have not heard from Legal Aid Ontario, you should contact them directly.
Any attempt to increase access to justice, is always welcome.
If you find this blog interesting, please consider these other related blogs:
I like wine. But I don’t know a lot about wine. My friend, Henry, knows a lot about wine. When picking a wine, I often refer and defer to Henry’s extensive knowledge of wine. I outsource many of my wine buying decisions to Henry. I adopt Henry’s knowledge of wine as my own.
I also like to golf when I can. I am an ok golfer, but could be better. My friend, John, is a great golfer. He reads all of the magazines and watches all of the instructional videos. When we golf together, John shares that knowledge with me. I can take John’s learning and make it mine. (Unfortunately, my increased knowledge doesn’t necessarily translate into lower golf scores.)
In a recent podcast by Michael Lewis called “Against the Rules”, (Season 2, Bonus episode), Michael Lewis interviews Malcolm Gladwell and Jacob Weisberg. At one point, Malcolm Gladwell refers to a concept akin to a “collective memory”, whereby he outsources things he needs to know to friends and family. He says that his approach is that we should appoint experts to our friendship circle and outsource things we need to know to them. Their knowledge and experience becomes ours. He suggests that in personal and professional life, we should let others do the things that they can do better than us.
The context of the discussion was the running of Pushkin Industries, which is a podcasting company formed by Gladwell and Weisberg. Gladwell is the “ideas” person, whereas Weisberg is more of the operations person. Gladwell relies on Weisberg to manage the financial and day-to-day aspects of the business. This allows Gladwell to do what he does best.
There is a great lesson in Gladwell’s brief comment. Personally and professionally, surround yourself with smart people whom you respect and trust and who have a broad range of strengths and interests. Listen to them. Free yourself to rely on their knowledge and experience. Your life will be better and easier for it. (Although you may not become a much better golfer.)
Thanks for reading.
The last will and testament of the gunman responsible for Nova Scotia’s mass shooting in April 2020 was recently made public. The gunman’s will names his common law spouse as the executor of his estate, estimated to be worth around $1.2 million. However, the gunman’s spouse has renounced her right to be executor of his estate and it is now being administered by the Public Trustee. It was also rumoured that the spouse had renounced any interest she may have had in the gunman’s sizable estate.
Whether the gunman’s partner did in fact relinquish any inheritance remains to be confirmed. However, there are a multitude of reasons why someone may choose to waive their right to an inheritance, including:
- Emotional grounds;
- Personal moral or ethical grounds;
- To avoid taking possession of an undesirable or costly asset, such as real property that requires significant repairs or maintenance;
- To avoid subjecting assets to potential creditors if the beneficiary is on the brink of bankruptcy or involved in a lawsuit; or
- To allow the asset to pass to a secondary beneficiary.
For an overview of what is required to properly disclaim an inheritance, you can read Ian Hull’s blog here.
As shown by the above list, even where a beneficiary does not plan to benefit personally from an inheritance they may still be interested in what happens to that inheritance. In such situations, the beneficiary may want to think carefully about whether disclaiming their inheritance is the best option.
It is important to note that a person can only disclaim a gift if they have not yet benefited from the assets and, once disclaimed, that person has no control over the assets. In other words, a beneficiary who renounces a gift should not have anything to do with those assets either before or after they have been disclaimed. This also means that the beneficiary should not have any say in who receives the inheritance.
If a person wants to disclaim their inheritance in order for it to pass to a secondary beneficiary, they should confirm whether the deceased’s will or intestacy laws, as applicable, provide for that outcome. If it does not, or if the person wishes to direct their inheritance to some other individual or charity, there is another option: they can accept the inheritance and give some or all of the assets to whomever they choose. Depending on the beneficiary’s particular goals and circumstances, accepting an inheritance and distributing the assets as they see fit may be preferable to disclaiming the assets.
Thanks for reading!
George Floyd died tragically during an arrest by Minneapolis Police officers on May 25, 2020. Mr. Floyd’s highly publicized death ignited demonstrations and protests across the United States and Canada against police brutality and in support of anti-racism. Many individuals are also showing their support to this cause with donations to community groups, non-profit organizations, and other fundraising campaigns with a related mission or purpose.
One of the more successful fundraising campaigns has been the George Floyd Memorial Fund established by Mr. Floyd’s brother, Philonise Floyd, on GoFundMe, an online crowdfunding platform. This campaign has raised just over $14 million to date, far surpassing its original target of $1.5 million. The overwhelming success of this GoFundMe campaign invites the question – what happens if more funds are donated to a fundraising campaign than originally requested?
Crowdfunding campaigns are often created in order to raise money for a specific purpose or project. If more money is raised than is needed to fulfill the campaign’s intended purpose, then there will be surplus funds. A common example is a GoFundMe campaign created to defray funeral expenses and the campaign ends up raising funds over and above the actual costs incurred for the funeral. What is the campaign promoter entitled, or perhaps required, to do with the leftover funds?
In general, if money is donated for a specific purpose and not all of the funds raised can be applied to that specific purpose, the surplus funds may be returned to the donors via a resulting trust. Returning donated monies can be burdensome where there have been a significant number of donors and/or anonymous donors who cannot be easily identified. To help avoid this situation, a campaign promoter can include alternative purposes for which funds can be used. These additional purposes must be set out at the time the funds are solicited.
In the case of the George Floyd Memorial Fund, the GoFundMe page states:
“This fund is established to cover funeral and burial expenses, mental and grief counseling, lodging and travel for all court proceedings, and to assist our family in the days to come as we continue to seek justice for George. A portion of these funds will also go to the Estate of George Floyd for the benefit and care of his children and their educational fund.”
The above description includes multiple purposes for the collected funds. Some of these purposes likely have been or will be fulfilled, such as the payment of funeral expenses. However, other purposes are seemingly unbounded, such as supporting the care and education of Mr. Floyd’s children. Thus, although the George Floyd Memorial Fund garnered millions of dollars in excess of its original goal, it is likely that all of these funds can properly be applied to the campaign’s defined purposes. If this is the case, then no portion of the collected funds will be considered to be surplus and all of the money should remain available for the benefit of the Floyd family.
Thanks for reading!
A recent report of the Canadian Armed Forces into the state of five Ontario nursing homes has shed light on disturbing issues inside of the homes.
Early into the COVID state of emergency, the Canadian Armed Forces was asked to assist at 5 Ontario nursing homes, and 25 Quebec nursing homes. In the course of their duties, the Armed Forces noted serious shortcomings at the nursing homes. The report has led to calls for various action, including a coroner’s investigation, and possible police investigations.
It should be noted that there is a statutory duty on everyone to report any suspected impropriety occurring at a long-term care facility. Specifically, s. 24 of the Long Term Care Homes Act, 2007 requires that a person who has reasonable grounds to suspect any of the following has occurred or may occur to immediately report the suspicion and the reasons upon which it is based to the Director of Long Term Care:
- improper or incompetent treatment or care of a resident that resulted in harm or a risk of harm to the resident;
- abuse of a resident by anyone or neglect of a resident by the licensee or staff that resulted in harm or a risk of harm to the resident;
- unlawful conduct that resulted in harm or a risk of harm to a resident;
- misuse or misappropriation of a resident’s money; or
- misuse or misappropriation of funding provided to a licensee.
While there is an obligation on everyone to report the suspicion of such conduct, it is only an offence if certain described individuals fail to report. These individuals include the licensee, an officer or director of any corporate licensee, a staff member, or any person who provides professional health, social work or social services to a resident or licensee.
Long term care licensees also have a statutory obligation to ensure that any alleged, suspected or witnessed incident of abuse of a resident by anyone, neglect of a resident by the licensee or staff is investigated, and that “appropriate action” is taken in response to any incident. The results of the licensee’s investigation and the action taken in response are to be reported to the Director. Further, the Act requires that the licensee must establish a procedure for initiating complaints to the licensee and for how the licensee deals with the complaints.
The report of the Canadian Armed Forces will, hopefully, bring about positive change for a vulnerable, often voiceless segment of society. Others should (or in some cases, must) also come forward to report harmful conditions or conduct. If you see something, say something.
Thanks for reading.
As the province of Ontario slowly emerges from the strict measures in place to prevent the spread of Covid-19, businesses and organizations alike are considering what workplaces will look like moving forward. Modernizing technology in workplaces is a fundamental aspect of these considerations, and Ontario courtrooms are no exception.
On Thursday, May 28, 2020, Chief Justice Geoffrey Morawetz, Senior Family Justice Suzanne Stevenson and Regional Senior Justice Michelle Fuerst answered questions posed by members of the legal profession on the Superior Court’s response to the Covid-19 pandemic and the future of the courtroom as we know it. The overarching message conveyed by Chief Justice Morawetz was that the courts have acknowledged the need to modernize and that great efforts are being made to adapt to new technologies and integrate those technologies into our justice system.
I will briefly highlight some of the key takeaways from the Ontario Bar Association’s (OBA) webinar, although I encourage all those who are interested to watch the full webinar, which is free and accessible to the public on the OBA website. To watch the webinar, click here.
- Currently, the Superior Court of Justice has suspended in-person hearings until July 6, 2020, at the earliest. It is expected that the next phase of modernization will see a hybrid of both in-person and video or telephone conferencing. Courts will likely not return to “normal” operations (i.e. in-person hearings of all matters) until a vaccine is widely available.
- It was acknowledged that the courts moved quickly to allow for remote hearings of matters that were easily suited to a virtual hearing, such as matters that were unopposed, on consent, or in writing. Over the course of the pandemic, the courts have twice expanded the scope of matters it will hear. Moving forward, it is expected that the courts will continue to expand the virtual courtroom to be able to hear contentious matters that require oral advocacy.
- In conjunction with the Minister of the Attorney General’s office, the courts are aiming to increase availability to video conferencing across all regions.
- Given that the courts have not been operating at their full capacity since mid-March, and the backlog that existed prior to Covid-19, it is expected that there will be a significant backlog of matters that will have to be heard. In an effort to resolve this issue, judges from different regions will likely hear matters virtually in order to bring the court system back up to speed.
- We can expect to see an expansion of matters that that are being overseen by a case management judge.
- It is expected that eventually, there will be electronic scheduling platforms in place that will allow counsel to schedule attendances online.
Thank you for reading!
As many are aware, the Superior Court of Justice has essentially shut down operations, subject to certain narrow exceptions, in light of COVID-19.
On May 13, 2020, a Consolidated Notice to the Profession, Litigants, Accused Persons, Public and Media was published regarding “Expanded Operations of Ontario Superior Court of Justice, effective May 19, 2020”. The Notice can be read in its entirety here. Below, I discuss some of the highlights relevant to the estates list.
- The Notice specifically denotes that the Superior Court of Justice has not closed and that it continues to expand its operations virtually – in writing, or by telephone or video conference hearings. It is further highlighted, that during the suspension of regular in-court operations, lawyers and parties are expected to actively move cases forward.
- Although the requirement to gown for a Superior Court of Justice appearance is suspended, parties participating in video conferences are expected to dress in appropriate business attire and should have an appropriate technical set-up and observe etiquette appropriate to the nature of remote hearings. In fact, some guidance from the Superior Court of Justice on the issue of technical set-up can be found here.
- On the issue of filings, the Notice indicates that factums should be hyperlinked to relevant cases (instead of filing a Brief of Authorities) and there is a very specific format of the email that is to be sent to the Court to request dates or file materials. Importantly, the size of emails has been expanded to 35MB, however, it is also noted to limit filed materials to only those necessary for the hearing (in addition to the restrictions related to the length of material, already in place).
- Although materials are being filed electronically, given the pandemic and the need to isolate, the Superior Court of Justice expects that all materials filed electronically be later filed in hard copy with the Court and the requisite filing fee be paid. That means, that it is important to keep track of all materials filed electronically, as there is a positive obligation to deliver hard copies and payment for the filing, at a later time.
- Service via email is permitted such that it is not necessary to obtain consent or a court order to serve a document by email where email service is permitted.
- Whereas, urgent matters continue being heard (subject to the Superior Court of Justice’s discretion to decline to schedule for immediate hearing any particular matter listed in the Notice), the following Toronto Commercial and Estate List matters are being heard (the Notice to Profession – Toronto, can be found here):
- Select motions;
- Select applications;
- Case management conferences;
- Pre-trial conferences; and
- Judicial settlement conferences.
Reviewing this Notice shows that court services are expanding. Certainly, one positive effect of the pandemic has been the overall embrace of various technologies by the Superior Court of Justice, that had not been in place before.
Here is to hoping that the restrictions associated with COVID-19 are soon lifted and the pandemic blows over. At the same time, I am certainly excited to see whether we will see a significant change in court operations moving forward, as a result of this involuntary technological leap forward.
Thanks for reading!
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Today I learned about the National Initiative for the Care of the Elderly (“NICE”) and their Talk 2 NICE program.
NICE is an international network of researchers, practitioners and students dedicated to improving the care of older adults. Members come from a broad spectrum of disciplines and professions.
In response to the COVID-19 pandemic, NICE is providing free outreach and counselling to older adults and persons with disabilities. Callers are able to speak to social workers or social work students. Talk 2 NICE can be reached toll free at 1 (844) 529-7292. Or, a time for a call from Talk 2 NICE can be scheduled on their webpage. The program can also be accessed over the internet by clicking on a link. Referrals for friends or family members are also accepted.
Callers have a choice of scheduling either a 15 minute or 30 minute “Friendly Check-In”.
The call is designed to help those socially isolated and lonely due to the current crisis. The service is also offered to caregivers. The trained volunteers will provide uplifting phone calls that respond flexibly to the needs of the caller, and will offer information about other available resource
Another excellent resource provided by NICE is a pamphlet entitled “To Stay Or To Go?: Moving Family from Institutional Care to your Home During the COVID-19 Pandemic”. The brochure discusses a number of considerations to be taken into account when considering whether to remove a family member from a Long-Term Care Facility.
Mental health should be top of mind during these unique times. This is particularly so for the elderly. The service provided by NICE is an excellent resource. Pass on this information to anyone who may benefit from such a call.
Thanks for reading.
P.S. Call your mother (or anyone else you know who may benefit from an isolation-breaking telephone call).
Video conferencing has been around for about forty years. It has been used in criminal court bail hearings and on applications to the Supreme Court of Canada for more than thirty years in some parts of the country. There are many good reasons to now expand the use of video and other technology in the law of wills and estates. The technology “Genie” is now out of the legislative bottle it has been kept in for too long, and it is not likely to be put back in when this pandemic fully ends.
The changes made in the last month to how a will can be validly signed in Ontario have been made far more quickly than anyone expected. The substance of these changes has been dealt with in other Hull and Hull blogs. The Emergency Management and Civil Protection legislation in Ontario, and the Orders made pursuant to that legislation beginning on Tuesday March 17, 2020 have effectively amended past practice to such a degree that the usual caution of the legal profession has been surrendered. Wills can now be signed and witnessed over the internet. Counterpart signed wills are now allowed. Affidavits can be commissioned by video conference now. These and other changes have been made and implemented quickly, with effect to the core of basic principles. The legal profession in Ontario has not seen changes like this in the past one hundred years!
The changes are brought on by the circumstances of the current pandemic emergency and are necessary. It has been impressive to watch these changes being made so quickly. Immense credit is due to those involved. Led by the Attorney General of Ontario, Doug Downey, and with the Deputy Minister, lawyers at the Ministry, members of the Estate Bar, and others, they have all truly done monumental work. On Monday May 4, 2020 a notice was posted on the Ontario Court of Justice website that included the following statement that the Court would be, “…working closely with its justice partners, including the Ministry of the Attorney General, to adopt technology that will increase participants’ ability to access the Court’s services using remote means, such as by the electronic filing of court material, remote scheduling processes, and remote hearings.”
It is interesting to ask however, while changes were happening incrementally in other areas of the law over many years, why was there no progress in the area of execution of wills? It is important to also ask what further changes should be made at this time. For many lawyers the recent storm of events and the subsequent changes are anxiety making. Nevertheless, this is the time further permanent changes should be considered. What should be of interest now is how technology can be used to benefit all going forward. Before the timing of the window for change closes this should become an important discussion among estate lawyers.
Thank you for reading.
These blog posts on the subject may also be of interest: