Category: In the News

29 Aug

How can we slow down aging?

Nick Esterbauer Elder Law, Health / Medical, In the News Tags: , , , , , , 0 Comments

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.

Nick Esterbauer

 

Other blog posts that may be of interest:

27 Aug

Are Oral and/or Videotaped Wills Valid?

Nick Esterbauer Estate Planning, In the News, Wills Tags: , , , , , , 0 Comments

A recent news article refers to the struggle of father of accused killer Bryer Schmegelsky to obtain video footage from the Royal Canadian Mounted Police.

The father’s lawyer has referred to the video as the accused’s “last will and testament.”  It was apparently recorded very shortly before death and expresses funeral and burial preferences.

Oral wills (also known as nuncupative wills) are recognized in select jurisdictions, including some American states:

  • New York law provides that an oral will, heard by at least two witnesses and made by a member of the active military or a mariner while at sea can be valid and will expire one year after discharge from the armed forces or three years after a sailor, if the testator survives the situation of peril;
  • In North Carolina, an oral will made while the testator’s death is imminent and in circumstances where the testator does not survive in the presence of two or more witnesses may be valid;
  • In Texas, oral wills made in the presence of three or more witnesses on the testator’s deathbed before September 2007 are valid in respect of personal property of limited value.

As most state legislation is silent on the issue of videotaped wills, if the testator’s oral wishes are videotaped, they must generally meet the criteria for a valid oral will to be effective.

However, in Canada, a will must be in writing, signed by the testator, and witnessed by two people.  Alternatively, a will that is entirely in the testator’s handwriting and unwitnessed may be valid.  Because Ontario is a strict compliance jurisdiction, any inconsistency with the formal requirements, as set out in the Succession Law Reform Act, renders a will invalid.

While a videotaped statement intended to be viewed posthumously may not be a valid will in Ontario and other Canadian provinces, it can nevertheless be used to express the deceased’s final wishes, for example with respect to the disposition of his or her remains (which are typically precatory rather than enforceable, even if appearing within a written document), and may assist a family in finding closure following an unexpected loss.

Thank you for reading.

Nick Esterbauer

22 Aug

Never Really Lost but Recently Discovered

Doreen So Estate & Trust, General Interest, In the News, Wills Tags: , , , 0 Comments

Thanks to the New York Times, I found out about where most of Bob Ross’s paintings have been kept all these years.  Bob Ross was the iconic host of the television show, The Joy of Painting.  The PBS show ran from 1983 to 1994 and these old episodes continue to be watched on television, YouTube, and Netflix today.

In each episode, Bob taught his audience how to paint landscapes from his own imagination and memories.  According to this NYT video, Bob would paint three versions of the same painting for each episode.  Given the amount of episodes, Bob is estimated to have painted over a thousand paintings for the show alone.

Bob’s paintings are owned by a company known as Bob Ross, Inc.  Bob Ross, Inc. was originally owned by Bob, his wife, Jane, and Annette and Walt Kowalski.  The Kowalskis are credited with discovering Bob and financing his early career.  When Bob died in 1995, predeceased by his wife Jane, the Ross’s shares of the company were left to the Kowalskis.

To date, Bob Ross, Inc. does not sell Bob’s paintings.  It is a company that sells painting supplies, books and dvds, and other fun items like t-shirts and coffee mugs.

As a privately held corporation, Bob Ross Inc. can continue to hold onto Bob’s paintings for the foreseeable future.  Only time will tell if the shareholders of Bob Ross Inc. might change their minds about Bob’s paintings.  For now, the company has donated a collection of Bob’s paintings to the Smithsonian and the rest of us will just have to paint our own paintings by learning from Bob.

Just for fun, and to finish off my theme for the week, here is a video for happy little Bob Ross waffles.

Doreen So

Golden Fall Foliage Autumn Yellow Maple Tree Season

20 Aug

Parties to Bear Their Own Costs of a Contested Guardianship

Doreen So Capacity, Continuing Legal Education, Elder Law, General Interest, Guardianship, In the News Tags: , , , , 0 Comments

There was a recent decision of the Ontario Superior Court of Justice on the issue of costs in a contested guardianship proceeding.  Rather unusually, the endorsement in Howard Johnson v. Howard, 2019 ONSC 4643, dealt with the issue of costs after the parties have resolved the main dispute on consent.

In this case, there were two competing guardianship applications over Elizabeth.  The applicants on the one hand were Elizabeth’s daughter and son, Marjorie and Griffin, and on the other hand, Elizabeth’s other son, Jon.  All three of Elizabeth’s children were of the view that their mother was in need of a substitute decision maker for both the management of her property and for personal care.

While the endorsement does not specify who the competing applicants were seeking to appoint as Elizabeth’s guardian, the parties eventually settled on the appointment of CIBC Trust Corporation as Elizabeth’s guardian of property and all three children as Elizabeth’s guardians of personal care.  On the issue of costs, Marjorie and Griffin sought full indemnity costs from Jon while Jon sought substantial indemnity costs from Majorie and Griffin or, in any event, that he be indemnified by Elizabeth for any amounts not recovered from his siblings.

Pursuant to section 3 of the Substitute Decisions Act, 1992, Elizabeth was represented by counsel throughout the proceeding and on the issue of costs.  Submissions were made on Elizabeth’s behalf that she should not have to pay costs of the other parties or the outstanding balance of an invoice that was purportedly incurred by Elizabeth in a joint retainer with Jon.

The Court in this instance considered the modern approach to costs in estate litigation as set out in McDougald Estate v. Gooderham,  2005 CanLII 21091 (ON CA), with respect to Jon’s claim that Elizabeth ought to be responsible, at least in part, for his costs.  The court relied on D.M. Brown J.’s (as he was then) comments that the discipline imposed by the “loser-pays” approach to estate litigation applies with equal force to matters involving incapable persons citing Fiacco v. Lombardi, 2009 CanLII 46170 (ON SC).  Only costs incurred for the best interests of the incapable person could be justified as costs payable from the incapable’s assets.

In this case, the competing applications of the siblings were found to contain a number of ancillary issues beyond that of the appointment of a substitute decision maker for Elizabeth.  The Court was ultimately unable to see how Elizabeth would have derived any benefit from her children’s disputes.  Therefore, the children were all ordered to bear their own costs.  There was also no clear benefit to Elizabeth from the invoice that was issued to her prior to the appointment of section 3 counsel and Jon was ultimately left to pay that balance.

At the end of the day, the only costs borne by Elizabeth, as the incapable person subject to two competing guardianship applications, were the costs of section 3 counsel pursuant to the section 3(2) of the SDA.

Here is a Bon Appetit recipe for a frozen margarita pie that we could all benefit from.

Doreen So

31 Jul

Islands off the coast of Toronto?

Ian Hull Estate & Trust, Estate Litigation, Estate Planning, In the News 0 Comments

I love people who make predictions – especially when it’s in their area of expertise. They aren’t always right of course, but you at least benefit from some “best guesses” by people who work in the area.

The Huffington Post published an article a few months ago by realtor Nathan Dautovich about what’s ahead for the Toronto housing market in 2019. Check it out here.

It contains the usual forecasts for housing and rental prices, which are always useful to learn. But what struck me were a couple of predictions – one for the present, one futuristic – for adding housing stock to a crowded city that’s still growing.

  1. Laneway housing

Did you hear about this? I hadn’t. Last year, Toronto adopted a new policy allowing laneway housing in what are essentially the old city of Toronto and East York areas. This presentation provides a great overview of the concept.

A laneway house is a detached secondary building that remains under the same ownership as the main house. More like a coach house than a full house, they’re intended for rental housing, such as for family members (adult children or aging parents) or others. The goal is to increase city density and the supply of low-rise neighbourhood-oriented rental stock. Rental income can also help owners of the primary home with mortgage and other costs.

The article suggests that innovative companies may be knocking on the door of homeowners, offering to design, develop, and finance a laneway house. So, get ready for that “knock” if you own a home on a laneway in Toronto.

  1. Islands off the coast of Toronto

The Huffington Post article notes that most of the land south of Front Street used to be under water – so there is precedent for “adding land” to our shoreline. Today, look no further than the Leslie Street spit, which continues to grow. So how about some housing islands off the eastern or western banks of Toronto? A little imagination could go a long way. We already have island housing on our existing Toronto Island chain. Are we ready for more?

Whether you choose to focus on the present or the future when it comes to real estate in Toronto, you should always be cognizant of the tremendous effect large assets like your real estate property can have on your estate. When contemplating real estate decisions, it is important to think of it as an intergenerational asset, as it will affect the makeup of your estate in a significant way.

Thanks for reading!
Ian Hull

30 Jul

Introduction of National Dementia Strategy

Sayuri Kagami Health / Medical, In the News Tags: , , 0 Comments

We’ve blogged quite a bit recently on the various technologies and breakthroughs that are being made in Alzheimer’s, including the use of Artificial Intelligence in detecting early signs of the disease and research on new treatment methods. As anyone who has worked with affected individuals and their caregivers can attest, Alzheimer’s and dementia are extremely challenging and will increasingly affect more families. It’s no surprise then that researchers and governments are taking steps to address Alzheimer’s disease and dementia.

Last month, the Canadian Federal government announced its comprehensive dementia strategy (for news coverage, see this CBC article). The release of the strategy comes on the heels of the passage of the National Strategy for Alzheimer’s Disease and Other Dementias Act in 2017 which allowed the government to take steps to begin developing a national dementia strategy.

The strategy aims to broaden awareness of dementia and advance the following “national objectives”:

  1. Prevent dementia by advancing research and expanding awareness of and support in adopting lifestyle measures that can increase the prevention of Alzheimer’s disease and dementia;
  2. Advance therapies and find a cure by supporting and implementing research; and
  3. Improve the quality of life of people living with dementia and caregivers by eliminating stigma, promoting early diagnosis and care, and better supporting caregivers.
The national objectives of the federal dementia strategy

As part of the national strategy, the Federal budget (released on March 19, 2019) allocated $50 million over five years towards implementing the dementia strategy.  The release of the national strategy and funding to address this issue has been welcome news to organizations in Canada dedicated to tackling Alzheimer’s and dementia.

Hopefully, the release of this strategy will promote the continued advancement of breakthroughs in Alzheimer’s and dementia research.

Thanks for reading!

Sayuri Kagami

11 Jun

Aretha Franklin’s estate: are handwritten notes valid wills?

Sydney Osmar Estate & Trust, Estate Litigation, In the News, Wills Tags: 0 Comments

It has been almost one year since the music industry and fans around the world lost Aretha Franklin.  It was previously believed that Franklin died without a will, leaving an estate valued at approximately $80 million USD to be distributed under Michigan’s intestate succession laws.

However, recent reports indicate that three handwritten notes, which may be wills, have been located. Two are reportedly from 2010 and were found in a locked cabinet, with the third dated March 2014, found under cushions in Franklin’s living room.

The three handwritten notes have been filed, and a hearing will take place on June 12, 2019 to determine their validity.

From a cursory review of the applicable Michigan authorities, it appears that a will is a holograph Will (referred to as “holographic wills” in Michigan), whether or not it is witnessed, if it is (1) dated, and (2) the testator’s signature and the document’s material portions are in the testator’s handwriting. It appears that in Michigan, a holograph will may remain valid, even if some portions of the document are not in the testator’s handwriting, but the testator’s intent can be established by extrinsic evidence.

In contrast, pursuant to Ontario’s Succession Law Reform Act (“SLRA”), to be a valid holograph will the document  must be (1) “wholly” in the testator’s own handwriting, (2) signed by the testator and (3) constitute a full and final expression of the testator’s intent regarding the disposition of his or her assets, on death. The SLRA does not require the document to be dated, as is required in Michigan, however both jurisdictions do not require the formal presence, attestation or signature of a witness for a holograph will to be found valid.

In Ontario, and Canada generally, steps are being taken within the legal community in attempts to solve ongoing issues of identifying missing or competing wills. Online will registries are being created so that lawyers and trust companies can upload basic information about the wills they are storing.

The Canada Will Registry’s website indicates that when a user is looking for a will, the site will publish a Knowledge of Will notice, and the lawyer or trust company storing the will (if it has been registered) will be automatically alerted. According to the website, the intent behind the registry is to replace the various search tools currently available with one comprehensive tool.

While such a tool would not have assisted in locating Franklin’s handwritten notes, it represents how the advance of technology can be used to simplify necessary steps regularly taken by estate practitioners, such as the process of locating missing or competing wills.

Technology aside, it will be interesting to see whether or not the Court will find any of Franklin’s handwritten notes to be valid holograph wills.

Thanks for reading!

Sydney Osmar

04 Jun

Longevity and Anti-Aging: What is being done to keep us Living Better for Longer?

Rebecca Rauws General Interest, In the News Tags: , , , , , , , , , , , , , , 0 Comments

These days, life expectancy is longer than ever. We have previously blogged (for instance, here and here) about some considerations and consequences of having a longer life expectancy. A recent article in The New Yorker considers aging, and in particular, anti-aging now that people are generally living longer. The online version can be found here: Can We Live Longer but Stay Younger?

One of the problems with living longer, as highlighted in the New Yorker article, is that we still must deal with the challenges and realities of aging. What we really want is not eternal life but rather, eternal youth.

The article discusses several efforts to address or counteract the types of issues that we face as we age. For instance, a geneticist at Harvard has successfully extended the life of yeast, and is moving on to human trials. A Harvard molecular biologist, George Church, has had success reprogramming embryonic stem cells to essentially turn an old cell into a young cell. Church’s work has been done so far on mice and dogs, but there are plans to commence human clinical trials within the next five years.

The goal of the work being done by Church is to live better, not necessarily longer: “The goal is youthful wellness rather than an extended long period of age-related decline.” The article discusses the nature of this age-related decline, through the illustration of a “sudden aging” suit that allows the wearer to experience the physical challenges of aging, including boots with foam padding to produce a loss of tactile feedback, and bands around the elbows, wrists, and knees to simulate stiffness. The point of the aging suit is to help create empathy and understanding about how difficult each and every task (an example was reaching up to a top shelf and picking up a mug) can be for older adults, both physically and mentally. So the question becomes, if we are living so much longer, but with age, every day and every task becomes much more difficult, what can we do to counteract that?

The work being done related to anti-aging and the creation of products to make older people’s lives easier is interesting and seems to be moving in new directions. For instance, the article mentions the difficulty of marketing certain products aimed at older people, because we do not like the idea of buying something that reminds us that we are old. So instead of selling a personal-emergency-response system to send an alert and seek assistance in the event of a fall, or some other physical emergency, in the form of a pendant worn around the neck, it is suggested that the most effective such device would be an iPhone or Apple Watch app.

Unfortunately, the issue of dementia is still a concern. There still does not appear to be a cure in sight for Alzheimer’s or other forms of dementia. The causes remain unclear. The effects, however, are evident. One of the individuals mentioned in the article was Professor Patrick Hof, who studies brains. On the physical effects of dementia on our actual brains, Professor Hof notes that “[y]ou can’t tell any difference, even under extreme magnification, between an aging non-demented brain and a younger human one…But, holding an Alzheimer’s brain in your hand, you can see the atrophy.”  It appears that there is still a lot of work to be done in this area, in particular.

Thanks for reading,

Rebecca Rauws

 

Other blog posts that you may find interesting:

30 May

Instagram evidence key to claim against French rock star’s estate

Nick Esterbauer Estate & Trust, Estate Litigation, In the News, Litigation, Wills Tags: , , , , , , , , , , 0 Comments

A recent decision dealing with the estate of a French rock star highlights the potential relevance of social media evidence in estates matters.

Johnny Halliday, known as the “French Elvis”, died in 2017, leaving a Last Will and Testament that left his entire estate to his fourth wife, disinheriting his adult children from a previous marriage.  The New York Times reports that French law does not permit a testator to disinherit his or her children in such a manner, and the adult children made a claim against the estate on that basis.  The issue became whether the deceased singer had lived primarily in the United States or in France.

Halliday was active on Instagram, using the service to promote his albums and tours, as well as to share details of his personal life with fans.  The adult children were, accordingly, able to track where their father had been located in the years leading up to his death, establishing that he had lived in France for 151 days in 2015 and 168 in 2016, before spending 7 months immediately preceding his death in France.  Their position based on the social media evidence was preferred over that of Halliday’s widow and their claims against the estate were permitted.

Decisions like this raise the issue of whether parties to estate litigation can be required to produce the contents of their social media profiles as relevant evidence to the issues in dispute.  Arguably, within the context of estates, social media evidence may be particularly relevant to dependant’s support applications, where the nature of an alleged dependant’s relationship with the deceased, along with the lifestyle enjoyed prior to death, may be well-documented.

The law regarding the discoverability of social media posts in estate and family law in Canada is still developing.  While the prevalence of social media like Instagram, Twitter, and Facebook is undeniable, services like these have not become popular only in the last fifteen years or so and it seems that users continue to share increasingly intimate parts of their lives online.

Thank you for reading.

Nick Esterbauer

28 May

Legal Aid Funding and Access to Justice

Nick Esterbauer Elder Law, Estate & Trust, General Interest, In the News, Litigation, Support After Death Tags: , , , , , , , , 0 Comments

Sydney Osmar‘s blog from yesterday covered the issue of the recent cuts to legal aid funding, which can only be expected to result in increased barriers to Ontario residents in accessing the court system.

Within the context of estates, high legal fees may contribute to the inability of (would-be) litigants to obtain able assistance in accessing the court system.  Some meritorious estate and capacity-related litigation may not be commenced simply because of a lack of funds required to hire a lawyer to assist in doing so.

While successful parties may be awarded some portion of the legal fees that they have incurred, payable by the unsuccessful party to the litigation (or out of the assets of the estate), recovery of all legal fees incurred in pursuing litigation is rare.  The balance of legal fees that a party can be expected to pay out of whatever benefit they may ultimately receive dependent on the outcome of the litigation may eliminate some or all of the financial benefit of the funds that they may stand to receive.

For example, a dependant’s support application brought by a surviving spouse who lacks the financial means to support him or herself may result in protracted litigation.  Even if the application for dependant’s support is successful, the court may not always make an order that adequately reflects the entitlements of the dependant and the total fees that he or she has incurred to bring the application, limiting the funds available for the dependant’s expenses going forward.  While interim support orders or orders directing payments toward professional fees related to bringing the application may be available during litigation in some circumstances, the related motions will serve to further increase the legal fees incurred by the applicant if such relief is not obtained on consent.  In the absence of contribution from the assets of the estate to fund the litigation or an alternative arrangement for the payment of legal fees, it may not be possible for a surviving spouse in need to make a dependant’s support claim in the first place or he or she may need to do so without a lawyer’s assistance.

In 2016, it was reported that the numbers of self-represented litigants in Canada have increased over the last two decades and more significantly in recent years.  The inability to afford a lawyer and ineligibility for legal aid assistance were cited as the primary reasons why a party is self-represented.  Research suggests that parties who are self-represented are less likely to be successful in litigation (with success rates of only 4% in responding to motions for summary judgment, 12.5% for motions and applications, and 14% at trial) than represented parties.

While assistance with estate-related matters may be available to some from the Advocacy Centre for the Elderly, the Queen’s University Elder Law Clinic, or other clinics (which are funded by Legal Aid Ontario and will be impacted by the recent budget cuts) in some circumstances, many individuals simply do not qualify for assistance or require assistance that is not provided by these clinics.

Our colleague, The Honourable R. Roy McMurtry, is a strong advocate for access to justice and has expressed the following sentiment: “[O]ur freedoms are at best fragile…they depend on the ability of every citizen to assert in a court or tribunal their rights under law as well as receiving sound legal advice as to their obligations.  Indeed, our laws and freedoms will only be as strong as the protection that they afford to the most vulnerable members of society.”

Unfortunately, greater numbers of individuals than previously may struggle to access just resolutions of estates and other matters as a result of the recent changes to legal aid funding in Ontario.

Thank you for reading.

Nick Esterbauer

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