Category: In the News

15 Nov

Swedish Death Cleaning

Paul Emile Trudelle Estate Planning, In the News Tags: , , 0 Comments

Yesterday, Natalia Angelini blogged on a “purification grave” for students in Holland. The grave allows students to reflect on their lives, and their inevitable death. The grave serves as a very real memento mori, or awareness of our own death.

Another memento mori is the Swedish practice of “döstädning”, or death cleaning. As explained  in Margareta Magnusson’s The Gentle Art of Swedish Death Cleaning: How to Free Yourself and Your Family From a Lifetime of Clutter, the practice calls for the decluttering of one’s lifetime of possessions so that your death is not such a burden on those left behind.

Magnusson advocates the proactive and mindful clearing out of possessions. This is therapeutic and cathartic for the cleaner, and benefits those who have to deal with a person’s “stuff” after they die.

One test of whether to discard something or hang on to it is to ask yourself whether anyone will be happier if you were to hold onto the object. This is similar to Marie Kondo’s test of asking yourself whether the item “sparks joy”.

Unlike Marie Kondo’s methods, Magnusson’s approach is a slower, more methodical one. The “gentle” process involves examining one’s possessions, one by one, and deciding whether to keep it, gift it to family or friends, donate it to a charity, recycle it or trash it. It is a slow shedding of the baggage of life.

As with other minimalist approaches, less is more: for you and for those you leave behind.

Thanks for reading.

Paul Trudelle

14 Nov

An ingenious coping tool for stress?

Natalia R. Angelini In the News Tags: , 0 Comments

No doubt our youth must navigate an increasingly complex world, and so it isn’t any surprise to see a growing focus on mental health issues and novel ways to address them. This is a very serious issue, yet I couldn’t help but chuckle when reading an article discussing a Dutch university’s new and original stress-management tool. Wait for it…lying in a grave!

Just when life’s challenges are getting you down, you ditch your electronic devices (for 30 minutes to 3 hours), lie in a grave, contemplate the alternative and put your problems into perspective. One student is reported to have said the following after her experience:

“When you think about death, you automatically also think about life. That is because you realize that life isn’t endless and that we are all going to die at one point. It makes you think about what do I want to do in life, and what do I think is the most important, what does my heart feel, what does my mind want to do.”

Maybe it’s the yogi in me, but this feels like a new form of mediation, as one author put it “an invitation to listen to yourself”. I would love to see this service available to students, and adults, locally. Getting into nature is cathartic in its own right, and the option of literally getting into the ground (with the added comfort of a pillow and mat) to reflect seems like a very peaceful and relaxing experience. There are lots of other ways we can let nature give us a boost. I dare you – when summer returns, channel your inner child and roll down a grassy hill!

 

Have a great day,

Natalia Angelini

31 Oct

In the News: Medical Assistance in Dying for Persons with Dementia

Kira Domratchev In the News Tags: , , 0 Comments

As many of us know, the federal government’s legislation on medical assistance in dying (“MAID”) – Bill C-14 – was passed on June 17, 2016.

Only physicians and nurse practitioners (in certain provinces) are permitted to provide MAID in two ways:

1) directly administer the substance that causes death (e.g. an injection of a drug); or

2) provide or prescribe a drug that is self-administered to cause death.

In order to be eligible for MAID, one must meet all of the following criteria:

  • be eligible for publicly-funded health services in Canada;
  • be at least 18 years of age and capable of making their own health care decisions [emphasis added];
  • have a grievous or irremediable medical condition;
  • make a voluntary request for MAID; and
  • give consent to receive MAID after being provided with all of the information necessary to make the decision.

For more information on MAID, please see the Government of Canada’s webpage on “Medical Assistance in Dying”.

Dr. Stefanie Green, in a recent British Columbia case, said that a person with dementia who meets the criteria, should be eligible for MAID, despite the previously widespread assumption that persons with dementia could not meet the eligibility requirements.

Mr. Gayle Garlock became one of the first Canadians with a dementia diagnosis publicly reported to have received MAID. The key issue in deciding whether a person is eligible for MAID, particularly in the case of a person with dementia, is asking whether they have the mental capacity for informed consent, intolerable suffering and a foreseeable death.

In Mr. Garlock’s case, he was diagnosed with Lewy body dementia in 2014, when he was 70 years old. According to Mr. Garlock’s wife, one of the losses that he would define as “intolerable suffering” was being unable to read.

By the spring of 2019, Mr. Garlock’s condition had deteriorated such that his mental processing had slowed and he struggled in conversation. Dr. Green, determined that he still knew what was going on around him and with him and that he understood that he had dementia and that it had progressed. His MAID application was approved on May 9, 2019. Mr. Garlock passed away peacefully with his wife and sons at his bedside.

According to Dr. Green, “This is not an expansion of our law…This is a maturing of the understanding of what we’re doing”.

This is important news to those persons suffering with dementia but is also a reminder to the medical community of the importance of approaching each case individually and carefully, particularly where a patient’s capacity may be in question.

To learn more about Mr. Garlock’s story, please see CBC’s recent article here.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Achieving Medically Assisted Death

Assisted dying – follow the rules and you’ll be fine

An Update on Medical Assistance in Dying

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

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