Category: New Years Resolutions
2020….what a year – I’ll say nothing more other than I herewith present the most popular estate and trust cases of 2020 as decided solely and arbitrarily by me:
Calmusky v Calmusky – here, the Superior Court of Justice ruled that the designated beneficiary was presumed to be holding a RIF in trust for the estate of the deceased and had the onus of rebutting the presumption. Essentially, the court applied the rule in Pecore to a RIF by stating that “…I see no principled basis for applying the presumption of resulting trust to the gratuitous transfer of bank accounts into joint names but not applying the same presumption to the RIF beneficiary designation”.
Sherman Estate – should probate applications be sealed? At the Superior Court of Justice, the sealing order over the Sherman probate applications was granted ex parte. This was based upon the perceived risks to the executors and beneficiaries as well as the need to protect the privacy and dignity of the victims of violent crimes and their loved ones. The Court of Appeal, however, held that a public interest component must be met and proceeded to set aside the sealing orders. The matter reached the Supreme Court of Canada on October 6, with a decision yet to be released.
Trezzi v Trezzi – what happens when a will gifts an asset that is actually owned by a corporation? The Court of Appeal had to determine the potential validity of a bequest of property in a will when the property was not directly owned by a testator, but rather owned by the testator through a wholly owned private corporation. Although the court upheld the bequest in question, they noted that the language used in the will was potentially problematic and encouraged counsel to be more careful when drafting in similar circumstances.
Lima v Ventura – notwithstanding COVID, procedural timelines set out in court orders must be respected. Here, a party brought a motion to extend the deadline to exercise an option to purchase a home, citing the circumstances of the COVID-19 pandemic as the basis for the request. The request for an extension was ultimately denied because the party failed to provide evidence to support the claim that the circumstances caused by COVID frustrated efforts to purchase the house. The court did set out a number of factors to consider related to delays due to COVID-19 that could justify varying a court-imposed timeline.
Happy New Year!
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It is the end of 2019. I therefore of course feel the need to use this blog to urge you to resolve to either make a will if you do not already have one, or, if you already have one, to review your current estate plan to see if it requires updating.
Why the urgency you might ask? The answer lies in the most festive of NYE tipples – champagne!
Apparently, approximately 24 people die annually from being hit by champagne corks. In fact, it has been alleged that more people die as a result of being hit by a champagne cork, than from poisonous spiders. This article highlights the death of a Hong Kong billionaire by champagne while celebrating his 50th birthday. As he opened a celebratory bottle of champagne, the cork hit the businessman in the temple causing a fatal brain hemorrhage. His death was confirmed on the way to the hospital.
Champagne corks as a cause of death have received much doubt and there have been steps to debunk as a ‘myth’. For instance, according to this article, the average rate at which a champagne cork exits a bottle is about 24.8 miles per hour. In extreme circumstances, if there was up to 3 bars of pressure, a cork could reach speeds of 60 miles per hour. Regardless, these speeds are not enough to cause a cork to be deadly.
So, while death by a champagne cork may not be a valid reason to urge you to consider your estate plan, there are many other good reasons as discussed in these related Hull & Hull blogs:
- Benefits of Estate Planning for Today’s Young Adults
- Make Estate Planning One of Your New Year’s Resolutions
- Happy New Year! And Be Careful!!
HAPPY NEW YEAR!
The end of 2018 is fast approaching. 2019 will soon be upon us. I wish you health and happiness for the new year.
And by all means, get past New Year’s Day!
A 2010 study done at the University of California found that deaths spike in the two weeks around Christmas and New Year’s Day, with January 1 being the day of the year with the highest number of deaths from natural causes.
In the study, researchers looked at death certificates issued in the US over a 25 year period. This study differed from other studies that looked at deaths from self-harm, accidents and homicide in that it looked at deaths relating to natural causes, such as illness and old age.
Researchers found that 5% more people die on January 1 from natural causes than any other day.
Christmas and New Year as risk factors for death, D. Phillips, G. Barker and K. Brewer, Social Science and Medicine 71 (2010) 1463
No empirical reason for this trend is given in the study. However, several possible explanations are set out. These include:
- Increased psychological stress;
- Overcrowded [or perhaps understaffed] hospitals during the holiday season;
- Terminally ill patients may choose to be home and out of the hospital during the holiday season;
- Increased travel;
- People may be able to postpone death briefly in order to reach symbolic occasions;
Other theories are presented but dismissed as implausible or unlikely.
Another theory is that people postpone going to the hospital around the holidays because they want to be with their family. This can be dangerous. As reported in the Independent, “if you’ve got pains in your chest, don’t say I’m going to wait until after the holidays to get it looked at”.
Have a very happy, safe and healthy New Year’s Day, and new year!
As the year ends, it is hard to get through the day without seeing some sort of “year in review” feature. I will leave it to you to reflect and determine whether 2017 was a great year, a good year, or an annus horribilis.
As the book closes on 2017, let’s look forward with optimism to the new year. Some things to look forward to (or not) in 2018 include:
- The Law Society of Upper Canada becomes the Law Society of Ontario
- The 2018 Winter Olympics in PyeongChang
- The FIFA World Cup (sadly, senza Italia) in Russia
- The real possibility of a (hopefully long) Toronto Maple Leafs post-season
- The royal wedding of Prince Harry and Meghan Markle
- A royal baby for Prince William and Duchess Catherine
- The legalization of marijuana
- A probable spike in the price of snack food
- The 100th anniversary of the end of World War I
- The 50th anniversary of the US Civil Rights Act of 1968 (Fair Housing Act)
- An Ontario provincial election
- A Toronto municipal election
- US midterm elections
- The filming of the last (and Kevin Spacey-less) season of House of Cards
- 252 more Hull and Hull blogs!
We live in interesting times. Cheers to a great new year.
The holiday season is upon us, and with it comes family gatherings, buying and wrapping gifts, and travel. Suffice to say, it can be a hectic and busy time. Nonetheless, with 2018 on the horizon, many of us take the time to reflect and set resolutions for the upcoming year. Despite this, so many Canadians do not have a Will.
Why not? Estate planning need not be trying, and the holiday season is a perfect time to start considering your estate plan.
With this in mind, I thought I would highlight an article from the Globe and Mail which does a great job of highlighting issues to get you thinking about your estate plan:
- Get started – make a detailed list of your assets, liabilities, and joint assets, and think about your family’s needs and lifestyle.
- Consider your options – do you want your bequests to be absolute, subject to the terms of a trust, or gifted during your lifetime?
- Appoint representatives – think about who you trust to administer your estate and ensure that they are up for the job.
- Special circumstances – are there any beneficiaries who have special circumstances such as those receiving ODSP, that would benefit from specific trusts?
- Taxation – meet with a professional to understand tax consequences and the vehicles available to limit the payment of taxes, including the use of joint ownership and estate freezes.
- Cottages – should your estate involve the cherished family cottage, think about whether you want it sold, or shared amongst family members. If the latter, think about preparing a co-ownership agreement.
Wishing all of our readers a happy New Year!
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Over the course of the past year, the Toronto Estate Law Blog discussed the considerations involved in proper estate planning. If your New Year’s resolutions include estate planning, the following hints may be useful in 2015:
- Keep up with Changing Laws. Starting tomorrow, new regulations come into force that deal with the Ontario Estate Administration Tax Act. The new regulations include changes to the reporting obligations of estate trustees. Also, changes to testamentary trust taxation, discussed last week in the Financial Post, are expected in 2016 and may have an impact on your existing or contemplated estate plan.
- Understand your Assets. Knowing what you own, and what will and will not pass through your estate can have an impact on planning. If you are unsure of the worth of certain assets, make appropriate inquiries to verify. Confirm, as well, the ownership scheme of any property. Joint ownership, for example, means the surviving owner will acquire full ownership upon the death of the other owner.
- Talk to Loved Ones. As difficult as the conversation may be, a big part of estate planning consists of having the discussion about your end of life wishes with family and friends. As previously blogged about here, The Conversation Project Starter Kit can help manage this conversation.
- Testamentary Documents. While a Will is instrumental to any estate plan, it is not the only relevant document. Other documents also play an important role in estate planning. Such documents often include a Power of Attorney for Property, a Power of Attorney for Personal Care, life insurance policies and other beneficiary designations.
- Look at Changes in Circumstances. On Monday, Ian Hull outlined the circumstances that require one to take a second look at their estate plan. These circumstances include your personal and financial situation but may also include changes in the personal or financial situations of one or more of your beneficiaries. Ensure you take these into consideration if you change your estate plan in the new year.
- Consider Digital Passwords and Assets. What do you want done with your social media accounts? This may not be something most people have considered but including instructions can save your family and friends from delays and hassle. Keeping a list of account numbers and passwords can also assist others to access accounts and profiles.
- Get Advice. There are legal and tax consequences to nearly all decisions made in the context of estate planning. It is important that the proper professionals are consulted for advice and guidance.
Have a safe and happy new year!
Thank you for reading,
For the second year in a row, I have been given the privilege of writing our last blog of the year. As I sat down to write, I found myself pausing and reflecting on all the changes which have taken place over the last 366 days. Although we can all certainly count the personal changes in our lives, for me the most significant was recently becoming an Aunt to my wonderful and adorable nephew, in the media age, the ties that bind the world together are stronger than ever.
Google, then a little known company run out of a garage, launched a website over a decade ago that put a wealth of information at our fingertips. The website was so popular that in 2006 the verb “to google” was added to the Oxford English Dictionary. It comes as no surprise then that, as is done every year, Google Zeitgeist recently released a video titled “Year in Review”, which documents but a few of the most prevalent of the 2 trillion-plus searches conducted in 2012. Whether you googled this past year to prove your correctness in a heated dinner conversation, to figure out what it meant for the Ontario legislature to be prorogued, or to find that perfect Christmas gift, it is almost impossible to not have been among the many searches that contributed to this video.
Opening with Felix Baumgartner’s epic fall from space, moving to Oscar Pistorius’s ground-breaking run as the first double leg amputee to participate in the Olympics, and quickly flashing to PSY and the amazing phenomenon of ‘Gangham Style’, even the first few seconds of this video reminded me that 2012 was a year to remember.
As estate litigators, we spend a great deal of time reflecting on relationships and family dynamics; in particular, the items that our clients want to remember of their parents, sibling or friends. At the end of the day, finances play a big role in litigation, but win or lose or somewhere in between, I find that it is the memories and the related sentiment that my clients’ hold dearest. As Google reminds us what we globally searched for most this year, when you look back, what will be your favourite memories of 2012, what will you hold dear?
Wishing you a safe and prosperous 2013,
Nadia M. Harasymowycz
As all litigators in the province of Ontario likely know by now, January 1, 2010 ushers in not only a new decade but New Rules of Civil Procedure. The New Rules apply to all matters, regardless of when they were commenced.
The amendments to the Rules effected by Ont. Reg. 438/08 are the most extensive and significant since the Rules were adopted in 1985. The fundamental goal of the reform is to make the civil justice system more affordable and accessible for Ontarians.
Some of the more significant changes are as follows:
Proportionality – In April of 2009 we saw a movement toward proportionality of time and expense with the interests at issue in estate litigation upon the introduction of the New Practice Direction for the Estates List of the Superior Court of Justice in Toronto. New Rule 1.04(1.1) brings this factor into play for litigation in all jurisdictions and mandates that Court Orders and Directions be proportionate to the importance and complexity of issues and amounts at stake.
Summary Judgment – Rule 20 expands the Court’s discretion to assess credibility, weigh evidence, conduct mini-trials with oral evidence, and award substantial indemnity costs against a party acting unreasonably or in bad faith.
Expert Evidence – Experts must provide fair objective and non-partisan opinion, give opinion evidence only on matters that are within their expertise, and assist the Court as reasonably required. This duty to the Court prevails over any obligation experts owe to the party who retained them. Expert reports must be filed 90 days before the pre-trial conference and responding expert reports must be served 60 days prior to the pre-trial conference.
Discovery – Among the many changes regarding discovery is a new definition of relevance. The phrase “relating to any matter in issue in the action” has been replaced with “relevant to any matter in issue in the action”. This changes the test to one of simple relevance. Proportionality comes into play again in Rule 29.2, which sets out the considerations that must be made in determining questions to be answered or documents to be produced. Parties must agree to a written discovery plan (Rule 29.1) and there is a 7-hour time limit on oral examinations for discovery (R. 31.05.1).
Time – Calculation of time pursuant to Rule 3.01(1)(b) for notice periods of 7 days or less excludes holidays. There are also earlier deadlines for service and filing of materials for motions (Rule 37) Applications (Rule 38) and appeals from interlocutory orders (Rule 61).
If your New Year’s resolution is to learn the New Rules and their impact on your estates practice, you should attend the OBA Trusts and Estates Section Seminar, "Stay on top of the New Rules of court" on January 6, 2010.
Program Chair, Jane Martin, and speakers, Mr. Justice David M. Brown and Madam Justice Lois B. Roberts of the Superior Court of Justice, and Hull & Hull’s own Suzana Popovic-Montag, will guide you through the changes and provide an opportunity to ask questions regarding implications for estates practitioners.
For more on this topic see Gary Watson’s summary of the amendments and Marni Pernica’s recent article in OBA’s Deadbeat magazine. Previous Hull & Hull commentary by Rick Bickhram and Paul Trudelle can be found here and here.
I suspect that following the New Rules is one Resolution you will be sure to keep!
Sharon Davis – Click here for more information about Sharon Davis.
Happy New Year!
It promises to be an interesting year in estates law with exciting changes headed our way. Under the guidance of the Honourable Mr. Justice Brown, the Estates List Practice Direction is being updated and should be implemented before the end of the year.
The Ontario Bar Association is starting a listserv for Trusts & Estates section members. This email based mailing list will allow members to post questions or share their thoughts with other members. Members can expect an email later this month from the Ontario Bar Association with details on how to subscribe.
The Law Society’s new client identification and verification requirements came into force on December 31, 2008. The Law Society is offering a teleseminar on January 13, 2009 to discuss the new requirements and to assist with any questions practitioners may have.
Thanks for reading,