Category: In the News
Finally, the 2020 Olympics appear to be about to begin (at the time that this is being written).
The Tokyo Olympics will have 339 medal events. Approximately 5,000 medals have been minted. The medals are made from recycled materials.
This year, for the first time in recent memory and due to COVID concerns, athletes will be putting their medals around their own necks.
According to International Olympic Committee regulations, each medal must contain a depiction of Nike (the Greek goddess of victory, not the swoosh), the official name of the Games (eg. XXXII Olympiad Tokyo 2020) and the Olympic five rings symbol.
Although the medals are probably priceless to the winner, they do have an actual value. The cost of the materials used to make the medals is said to be $1,010 CDN for a gold medal, $640 CDN for a silver medal, and $5 CDN for a bronze medal. The gold medal contains six grams of gold plating over silver, the silver medal is all silver, and the bronze medal is made of brass. The Olympic Committee stopped giving out pure gold medals after the 1912 Olympics.
The medals clearly have a value beyond their cost to produce. Most notably, one of Jesse Owens’ 4 gold medals from the 1936 Berlin Olympics was sold in 2013 for over $1.4m US.
On eBay, an original silver medal from the 1906 Olympic Games is available for $15,289 CDN. Replica medals from most Olympic Games are available on eBay for about $35.00 CDN.
In addition to having value in and of themselves, Olympic medals often come with a hefty bonus from the winner’s country. Singaporean winners get $1m, $500,000 or $250,000 US for bringing home a gold, silver or bronze medal. Canadian winners get $20,000, $15,000 or $10,000 depending on where they are on the podium.
For the intriguing story of the 1972 Olympic gold medal basketball game and what lead to a term in the will of competitor Kenny Davis prohibiting his descendants from ever accepting the silver medal from the 1972 Games, see Ian Hull’s blog, here.
May you be faster, higher, stronger this weekend.
I blogged on the Ontario Public Guardian and Trustee’s Guardianship Investigations Unit, and the OPGT power to bring an application for a temporary guardianship under certain circumstances earlier this week. In The Public Guardian and Trustee v. Willis et al, 2020 ONSC 3660, the OPGT brought an application for Andrew Willis to pass his accounts with respect to his management of his mother’s Ruth Irene Willis’ property, and for an order that the OPGT be appointed as Mrs. Willis’ temporary guardian of property which would replace Andrew Willis as Mrs. Willis’ POA.
Mrs. Willis suffers from moderate to severe dementia and she lives in MacKenzie Place Nursing Home. Mrs. Willis is a widow and Andrew is her only living child. Mrs. Willis’ only asset is her home in Richmond Hill. There are four mortgages registered against the home, which total $3.35M. However, according to the last appraisal, the home was only estimated to be worth $2.8M after various renovations are complete. The extent of the mortgages and Andrew’s role in arranging them, and as a personal guarantor in the event of Mrs. Willis’ default, was the basis for the OPGT’s accounting request.
What led to the OPGT to seek to replace Andrew as Mrs. Willis’ substitute decision maker was serious enough to convince the Court:
- Andrew was found to be consumed by the home renovations when Mrs. Willis’ basic living expenses at the nursing home were left unpaid. The Court was particularly concerned that,
“Andrew does not do what he says he will do. He made many promises to MacKenzie Place to pay his mother’s arrears but did not. There are still arrears owing of $15,000. Andrew has not made his mother’s needs a priority. As a result, his mother is living in a ward with other residents in a facility which has experienced COVID-19 cases and with minimal services. Mrs. Willis’ quality of life must be improved.”
- Willis also owes unpaid taxes to the Canada Revenue Agency. Her only bank account was found to have been used for Andrew’s personal expenses, such as his Granite Club fees, groceries, gas, alcohol, hockey equipment and his child support payments before the account was frozen by RBC.
- Despite Andrew’s efforts in listing the property for sale, the only offer that Andrew had received was less than the total mortgages.
- Andrew had also failed to make an application for survivor’s pension to increase Mrs. Willis’ monthly income.
The Court ultimately gave Andrew another 1.5 months to sell the house as Mrs. Willis’ attorney for property before the OPGT takes over regardless of whether the home has sold. If you are interested in learning more about Willis, click here for Rebecca Rauws’ blog on the accounting aspects of this case.
Thanks for reading!
A headline of a 2019 Forbes article delivered a blunt message to those of us who practice estate law: “Electronic wills are coming whether lawyers like it or not.”
The article notes that the U.S. Uniform Law Commission “recognizes the trend in online everything” and recently approved the Electronic Wills Act, which provides a framework for a valid electronic will. Under the provisions of the Act, individual states can determine the number of witnesses required for the creation of a will and whether their virtual presence is sufficient. The will has to be in text form, meaning that video and audio wills are not allowed but, once the will is signed, witnessed and notarized (if required), it will be legal.
In Canada in 2020, the Uniform Law Conference of Canada (ULCC) approved in principle amendments to its Uniform Wills Act to allow for the drafting of electronic wills. A progress report from the ULCC notes that the Electronic Transactions Act has determined that the electronic medium was “sufficiently established, reliable and usable to be accepted for all business purposes.”
The Act specifically exempts three areas: wills, powers of attorney and conveyances. The exemption for wills should be lifted, the ULCC committee recommends, noting that “we now have almost 15 years of experience of electronic commerce … much of our daily lives and arrangements are performed electronically – most of our banking, all of our healthcare records, most of our insurance and even our professional certification is all carried out electronically. In that context, what argument could be advanced that wills are so different and so exclusive that they could not be accommodated under our approach to electronic commerce.”
The committee claims that “other than ‘tradition’ it is difficult to identify any cogent argument to support the continued exception. An electronic record, once stored, is reliable, can be retrieved for future use and its ‘custody and control’ is probably more clearly tracked in electronic form than in hard copy.”
Most provinces are being cautious about embracing electronic wills, or e-wills. British Columbia has taken the lead with the establishment of Bill 21: Wills Estates and Succession Amendment Act, 2020. Bill 21 was built upon a ministerial order that permitted the electronic witnessing of wills while British Columbia was in a state of emergency due to the COVID pandemic. It expands the definition of a will to allow one done in “electronic form” to satisfy the requirement that a will must be in writing. The bill received royal assent in August, 2020.
In Ontario, Attorney General Doug Downey has been content to partially open up estate law to the electronic medium. With the passage of Bill 245, Accelerating Access to Justice Act, 2021, the virtual witnessing of wills and power of attorney documents is now allowed in Ontario on a permanent basis. Previously, it was introduced on a temporary basis during the pandemic.
Virtual witnessing means the testator and witnesses can be connected through a video call, rather than being physically together in a lawyer’s office. There are two important caveats to keep in mind – the first being that at least one of these witnesses must be a licensed lawyer or paralegal. They are there not just to be a witness, but also to confirm that the testator has the requisite capacity to sign the Last Will and Testament and that they fully appreciate the nature and contents of it.
The second caveat is that while the act of signing can be done virtually, electronic signatures are not allowed. Instead, everyone involved must print out the documents and sign them in wet ink. Once they are put together and stored safely, the will is complete and legal.
While the Forbes article quoted in the introduction may be correct about e-wills being inevitable – some U.S. states, Britain and Australia have either passed laws allowing digital wills or are considering them – there are still many reasons for people to maintain the traditional approach for the time being.
The human contact between the testator and legal counsel offered in a face-to-face meeting cannot be fully replicated in a virtual meeting. This contact builds trust and reassurance, which is vital when drafting this important document. There is also a unique set of concerns surrounding the preparation of estate planning documents that sets them apart from other legal documents that are signed digitally.
At Hull & Hull LLP, we will be monitoring the evolution of e-wills and working to accommodate any legislation the province introduces, but we are glad to see Ontario taking a cautious approach in this area.
Take care, and have a great day.
Britney Spears’ recent statement to the Court on the abuses of her conservatorship has stunned the world. Spears spoke of being abused and traumatized by her conservators. Spears gave examples of being forced to do a concert tour against her wishes and under threat of breach of contract; and of being prevented from marrying and having more children of her own.
Spears’ father, who is at the center of this controversy as one of Spears’ conservators for the last 13 years, has filed his own petition for the Court to investigate the allegations in Spears’ statement. Spears’ father has also expressed criticism over Spears’ conservator of person care, Jodi Montgomery, to which Ms. Montgomery has made the following statement according to Variety,
“…conservatorships in California are subject to the strictest laws in the nation to protect against any potential abuses, including a licensing requirement for all professional fiduciaries. Ms. Montgomery is a licensed private professional fiduciary who, unlike family members who serve as conservators, is required to follow a Code of Ethics…Private professional fiduciaries often serve in cases as a neutral decision-maker when there are complex family dynamics, as in this case…
Because Ms. Montgomery does not have any power or authority over the conservatorship of the estate, every expenditure made by Ms. Montgomery for Britney has had to be first approved by Jamie Spears as the conservator of the estate…Practically speaking, since everything costs money, no expenditures can happen without going through Mr. Spears and Mr. Spears approving them.”
There is similar provision in Ontario for how guardians of property are required to work with the guardians of person. Section 32(1.2) of the Ontario Substitute Decisions Act, 1992 provides that, “A guardian shall manage a person’s property in a manner consistent with decisions concerning the person’s personal care that are made by the person who has authority to make those decisions.”
The Ontario Substitute Decisions Act, 1992 also imposes a positive duty on the Public Guardian and Trustee (“OPGT“) to investigate “any allegation that a person is incapable of managing property or personal care and that serious adverse effects are occurring or may occur as a result” (see sections 27 and 62 of the Act). According to the OPGT,
“With respect to finances, “serious adverse effects” includes “loss of a significant part of one’s property or failure to provide the necessities of life for oneself or dependents”. Incapacity may, for example, lead a person to give large sums of money away to strangers or to face loss of their home for failure to pay taxes. An incapable person may face starvation or eviction if they cannot look after paying rent or buying food.
With respect to personal welfare, “serious adverse effects” includes “serious illness or injury, or deprivation of liberty and personal security”. Incapacity may, for example, result in a person being unable to remove themselves from a very dangerous situation or to take steps to stop physical or sexual abuse.
Throughout the investigation, the investigator tries to facilitate solutions that will serve to protect the person without the need for a formal court process. Respect for the dignity of the person and objectivity about the circumstances are paramount considerations in every investigation.”
If a formal court process is found to be necessary, the OPGT will make an application to the Court for a temporary guardianship, and the OPGT can also apply to make the temporary guardianship permanent. The OPGT is a branch of the Ontario Ministry of Attorney General, and they are meant to provide Ontarians with protective safeguards. While this specific investigative process is not technically meant to terminate an existing guardianship, it can temporarily or even permanently place the OPGT in charge as guardian of property and person.
Thanks for reading!
Britney Spears has been the subject of worldwide discussion for most of her life. The attention on Spears is once again at its height after Spears gave evidence in Court to contest and lay bare the abuses that she has suffered in the course of her 13-year conservatorship. You can read a slightly edited transcript of Spears’ 24-minute statement here.
Spears has been under a conservatorship ordered by the Los Angeles Superior Court since 2008. The order was made following a number of publicly scandalous events such as the time when Spears was photographed driving with her baby on her lap, and the time when she was photographed shaving her own head. Spears’ father, Jamie Spears, and a lawyer were named as her conservators which gave them the authority to make decisions about Spears’ property and health. Spears’ conservatorship was routinely back before the Court and extensions of the arrangement were granted throughout its 13-year history. A full timeline can be found here.
Recently, in 2019, Jamie Spears sought to extend the conservatorship across multiple states so that he would be similarly authorized to deal with Spears and her property in Louisiana, Hawaii, and Florida. That same year, Jamie Spears stepped down as the primary conservator after criticisms from Spears’ 14-year old son. In 2020, Spears sought to remove Jamie Spears as one of her conservators all together. Fast forward to now, Spears tells Los Angeles probate Judge Brenda Penny that she didn’t know she could petition to end the conservatorship, and that she wanted it to end without being evaluated. Days later, on June 30th, an old application to remove Jamie Spears was dismissed and a wealth management company, Bessemer Trust, was appointed to act as a co-conservator with Jamie Spears, although Spears is not precluded from bringing new applications in the future.
Here in Ontario, our version of a conservatorship is known as a guardianship under the Substitute Decisions Act, 1992. A petition to terminate a guardianship can be brought by motion under section 28 of the Act. This was done in one instance by Y. Zheng in Zheng v. Zheng. Zheng v. Zheng, 2012 ONSC 3045, is a Division Court decision by Justice Wilton-Siegel which granted Zheng leave to appeal an order that she be assessed as a part of her motion to terminate her guardianship.
In Zheng, Zheng was found to be incapable of managing property and personal care in 2007 and Zheng’s brother became appointed as her guardian. When Zheng applied to terminate the guardianship in 2012, Zheng submitted four current assessments, all of which found Zheng to be capable. The assessments were done by a qualified assessor under the Act, a staff psychiatrist at CAMH, and an in-home occupational therapist. The psychiatrist, in particular, had found that Zheng is currently capable with respect to treatment of her psychiatric condition, which was diagnosed as a psychotic disorder due to a head injury.
Zheng’s brother opposed the termination. Zheng’s brother had the assessments reviewed by the same neuro-psychologist who assessed Zheng in his 2007 guardianship application and concerns were raised about the sufficiency of these new assessments. Thereafter, Zheng retained her own neuro-psychologist to do conduct the same review, and Zheng’s neuro-psychologist came to the opposite conclusion in Zheng’s support. Given the conflicting review, Zheng’s brother brought a motion for Zheng to undergo a further assessment by an assessor of his choice. This was ordered by Justice B. O’Marra, and leave to appeal this order was granted by Justice Wilton-Siegel. Unfortunately for us, there does not appear to be any further reported decisions in this matter and I do not know if the assessment appeal or the broader motion to terminate was pursued further.
At the end of the day, I hope Spears’ conservatorship will be resolved to Spears’ satisfaction. It may very well be that an evaluation of some sort will be required on Spears’ part but, like Zheng, perhaps Spears’ evaluations can be done on her own terms.
Thanks for reading!
The Supreme Court of Canada recently delivered its judgment in Sherman Estate v. Donovan. In this case, a prominent couple was found dead in their home in 2017, and intense press scrutiny followed. The deaths remain unsolved and are being investigated as homicides. In these circumstances, it comes as no surprise that the estate trustees sought sealing orders in respect of the applications for probate. The relief was granted in the first instance, but on appeal by the Toronto Star, the sealing orders were lifted. The executors then unsuccessfully appealed to the Supreme Court of Canada.
The judgment of the Court was delivered by Kasirer J., who clarified the test for discretionary limits on court openness established in Sierra Club as requiring an applicant to establish that (1) court openness poses a serious risk to an important public interest, (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent the risk, and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.
The Court disagreed with the estate trustees’ argument that an unbounded interest in privacy qualifies as an important public interest. Citing the principle of openness as the rule and covertness as the exception, the Court narrowed the dimension of privacy to the protection of dignity. Therefore, the information revealed by court openness must consist of intimate or personal details, which the Court describes as the “biographical core”, in order to qualify as a serious risk to an important public interest. Additionally, the Court readily recognized that a risk to physical safety is an important public interest.
Given that in the Sherman case the information sought to be protected was not highly sensitive, it was found that the risk to privacy was not serious. Though the Court appreciated that the disclosure of the probate application may be the source of discomfort, it concluded that it did not constitute an affront to dignity, and the fact that some of the beneficiaries of the estates may be minors was not sufficient to meet the seriousness threshold. Additionally, though the feared physical harm was grave, the Court agreed with the Toronto Star that the probability of harm was speculative.
Despite the Court’s pronouncement that dignity is in need of protection, as it is a fairly narrow aspect of privacy, it seems to me that the resolute observance of the open court principle came out as the clear winner in this case.
Thanks for reading and have a great day,
Natalia R. Angelini
On April 30, 2021, the Long-Term Care Covid-19 Commission (the “Commission“) released its Final Report to the Minister of Long-Term Care. This report pulled back the curtain on the dreadful conditions that residents of certain long-term care homes in Ontario have endured during the coronavirus pandemic. It also made recommendations to the Ontario government with respect to improving quality of care for the long-term care resident population. You can read more about the Commission’s report in Ian Hull and Tori Joseph’s recent blog.
It seems that the Ontario government is heeding the Commission’s call to action. On May 31, 2021, Ontario announced that all long-term care homes in the province will be required to put into place certain COVID-19 vaccine policies for staff. The focus of these policies will be on educating long-term care staff about COVID-19 vaccines and promoting full immunization among staff.
The requirements related to the establishment, implementation and reporting on a COVID-19 immunization policy in long-term care homes are set out in the Minister’s Directive: Long-term care home COVID-19 immunization policy (the “Directive“). The objectives of the Directive are to establish a consistent approach to COVID-19 immunization policies in long-term care homes, optimize COVID-19 immunization rates in homes, and ensure that staff make informed decisions about COVID-19 vaccination. To meet these objectives, the Directive provides that every person working in a long-term care home in Ontario will be required to do one of the following:
- Provide proof of vaccination of each dose;
- Provide a documented medical reason for not being vaccinated; or
- Participate in an educational program about the benefits of vaccination and the risks of not being vaccinated.
The Directive is effective as of July 1, 2021, which means that long-term care homes have approximately one month to implement their COVID-19 staff immunization policies.
It is worth noting that Ontario is the first province in Canada to make it mandatory for long-term care homes to have COVID-19 immunization policies for staff and to set out the minimum requirements that need to be included in these policies. Hopefully this will be an effective step towards better protecting the health and well-being of long-term care home residents.
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In an effort to modernize the legal system and bring it into the 2020’s, the office of the Attorney General of Ontario introduced Bill 245, also known as the Accelerating Access to Justice Act, 2021, in February 2021. The bill received royal assent on April 19, 2021. Schedule 9 to Bill 245 provides for important changes to the Succession Law Reform Act, RSO 1990, c S. 26 (the “SLRA”). These changes have previously been discussed in Suzana Popovic-Montag’s blog and this podcast by Jonathon Kappy and Rebecca Rauws.
Schedule 9 to Bill 245 provides for six updates to the SLRA. Section 1 of Schedule 9, which makes changes to section 4 of the SLRA, has already come into force and effect. As a consequence of these amendments, the remote execution and witnessing of Wills in counterpart is now permitted on a permanent basis.
The Lieutenant Governor has recently proclaimed that the remaining changes to the SLRA as set out in sections 2 to 6 of Schedule 9 will officially come into effect on January 1, 2022. These changes are briefly summarized as follows:
- Sections 15(a) and 16 of the SLRA are repealed;
- Section 17 is amended to include separate spouses, such that any testamentary gift made to a spouse will be revoked upon separation;
- A new section 21.1 is added to provide for court-ordered validation of a Will that was not properly executed or made under the SLRA; and
- A new section 43.1 is added to provide that the spousal entitlements under the intestacy provisions do not apply if the person and the spouse are separated at the time of the person’s death.
The above-listed amendments are meant to better reflect the modern day experience of individuals and families in Ontario. These changes to the SLRA will certainly be a positive start to the year 2022.
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Michael Jackson died on June 25, 2009, at the age of 50. Although almost twelve years have passed since his death, his name remains in the news. The past few weeks and months have been eventful for his estate. Here is my round-up of good news stories (at least from the estate’s point of view):
On May 3, 2021, the US Tax Court determined that the IRS overestimated the value of Michael Jackson’s image and likeness at the date of his death. The IRS valued Jackson’s image and likeness at $161m (all amounts are $US). The estate argued that the singer’s image was worth much less, having a value of only $2,105: an unusually humble, but understandable argument. The judge accepted that the “value” of Jackson’s image was reduced at the time of death due to the singer being past the peak of his popularity, being heavily indebted and having a damaged reputation due to allegations of child molestation. The judge determined that the value of his image at the time of death was $4.15m, resulting in significant tax savings, and the reversal of a $200m penalty.
On April 26, 2021, the LA County Superior Court granted summary judgment in favour of two companies formerly owned by Jackson and now owned by Jackson’s estate, MJJ Productions and MJJ Ventures and dismissed claims made by Wade Robson relating to sexual molestation as against the entities. See Leaving Neverland on HBO. The judge held that the companies had no relationship with Robson that would give rise to a duty of care. The judge held that the entities had no ability to control Jackson, as Jackson had complete and total ownership of the entities. Robson’s lawyer indicated that his client would be appealing the decision.
In December 2020, Michael Jackson’s 2,700-acre Neverland Ranch was finally sold for $22m after being on the market for about 5 years. The property was originally listed for $100m. The property was purchased by Ron Burkle, net worth – $1.5b and owner of many things, including part of the Pittsburgh Penguins.
Details of Jackson’s interest in the property are unclear. It appears that Jackson was having difficulty in keeping up payments on the property, and in 2008, a co-ownership agreement was entered into between Jackson and Colony Capital.
The Michael Jackson website says they are “startin’ somethin’” beginning in December 2021 at the Neil Simon Theatre, New York City. The show is a collaboration between the Estate and Columbia Live Stage. The website describes the show as “the electrifying new Broadway musical that takes audiences inside the creative process of one of the greatest entertainers in history.” It doesn’t mention that his estate valued his image at $2,105 at the time of his death.
Thanks for reading.
“A pandemic is an inopportune time to create a nuanced, well-thought-out and thorough response plan.” – Long-Term Care Covid-19 Commission
On May 19, 2020, in an effort to investigate the deplorable conditions witnessed in many Long-Term Care homes across the province, Ontario launched the Long-Term Care Covid-19 Commission (the “Commission”). On Friday, April 30, 2021, the Commission submitted its final report (the “Report”) to the Minister of Long-Term Care which only confirmed what the province already knew – vulnerable elders were subject to neglect and abuse long before Covid-19 came knocking on Canada’s door. CanAge, a seniors’ advocacy group, described the Commission’s findings as “both a call to action and horror.”
The Report painstakingly depicts a picture of the nightmarish conditions experienced by the residents of certain Long-Term Care Homes in Ontario. The Commission compared the mental health effects suffered by some residents to those faced by prisoners in solitary confinement. This abandonment of one of our most at risk communities is disgraceful.
The Commission pointed to the extreme lack of coordination between government decision-makers as a key finding in its study. Perhaps what was most alarming, was the finding that dozens of residents in homes hit hard by the virus died from dehydration and neglect rather than Covid-19. Though Covid-19 shed light on the inhumane conditions of some homes, this is not a novel problem. The government’s delay in responding to this crisis proved to be deadly in more ways than one.
The Report recommended that the government reconsider the management of Long-Term Care homes with a renewed focus on “quality care.” Of particular note, the Commission cautioned against Long-Term Care homes owned by investors as “care should be the sole focus of the entities responsible [for these homes] …” The Report also criticized the government’s “lack of urgency” to the situation.
If lessons were not learned from this tragedy, then the deaths of so many will have been in vain. Let’s hope the government responds to this Report with immediate action.
Thanks for reading and have a wonderful day!
Ian Hull and Tori Joseph