Category: Uncategorized

22 Mar

A Few of Rodgers and Hammerstein’s Favourite Things

Paul Emile Trudelle Uncategorized Tags: , , , , 0 Comments

Ariana Grande has a hit song with “7 Rings”, and the company that owns the rights to the Rodgers and Hammerstein catalogue is enjoying the sound of her music.

The song “7 Rings” is based largely on “My Favorite Things”, the 1959 song written by Rodgers and Hammerstein for the movie “The Sound of Music”. In it, Ms. Grande sings about some of her favourite things. There are no “raindrops on roses” or “whiskers on kittens”, but, rather, “breakfast at Tiffany’s and bottles of bubbles, girls with tattoos who like getting in trouble”. In the song, Ms. Grande laments (or boasts) that her receipts “be lookin’ like phone numbers”. I doubt that Julie Andrew’s character Maria in “The Sound of Music” ever observed that “Whoever said money can’t solve your problems must not have had enough money to solve ‘em”.

The video for the song had 268,264,254 views as of the time of writing.

According to a story in the New York Times, Concord,  a music company that owns the Rodgers and Hammerstein catalogue, is to receive 90% of the song writing royalties. This high percentage is thought to be because of the original song’s iconic status, and the extent to which the new song is based on the original.

Composer Richard Rodgers died in 1979, and lyricist Oscar Hammerstein died in 1960. According to The AM Law Daily, their estates sold Rodgers and Hammerstein Organization, which controlled the rights to the complete words of both artists, to Imagem Music Group in 2009 for more than $200 m US.

This is not the first time that modern artists have borrowed from Rodgers and Hammerstein. In 2006, Gwen Stefani sampled from their “Lonely Goatherd” song, also from “The Sound of Music”. There, the song writing duo’s catalogue only received 50% of the royalties.

Have a great weekend.

Paul Trudelle

20 Mar

Is there a Duty to Account When Requested by a Beneficiary?

Ian Hull Beneficiary Designations, Estate & Trust, Estate Planning, Power of Attorney, Trustees, Uncategorized, Wills 0 Comments

In the recent decision of Fica v Dmytryshyn, 2018 ONSC 2034, the Ontario Superior Court of Justice confirmed that an attorney for property and/or estate trustee has a duty to pass accounts in accordance with the Rules of Civil Procedure.

The facts in Fica feature a family dynamic in which the mother of two sons heavily favoured one over the other. The mother’s favouritism towards her younger son (the “Favoured Son”) was evident throughout his whole life, and manifested in him receiving generous financial support from his mother, for anything and everything that he needed. Her other son (the “Older Son”) appears to have had a fractured relationship with his mother and was somewhat estranged from his family.

In January 2012, the mother appointed her Favoured Son, and the mother’s brother, as her co-attorneys for property and personal care, and as her estate trustees. Both sons and Uncle were beneficiaries under the mother’s will, and entitled to share equally in the residue of the mother’s estate.

In August 2012, the mother became very sick with cancer, at which time the Favoured Son and Uncle began acting under the mother’s power of attorney for property. Even after the Favoured Son and the Uncle began acting in their roles as attorneys for property for the mother, the Favoured Son continued to receive generous financial support from the mother’s assets and, with the knowledge of his mother, continued to use her credit card to support his lifestyle.

After the mother died, the disgruntled Older Son demanded information about alleged misappropriated money and expenses incurred when his younger brother and Uncle were acting as co-attorneys for the mother. However, in what would prove to be a significant error, the Favoured Son and the Uncle declined to provide an accounting upon request. Steps were only taken in this regard by the Favoured Son and the Uncle after the Older Son brought an application to compel and obtained an order to pass attorney/estate accounts.

The Older Son also sought a court order requiring the Favoured Son and the Uncle to reimburse the mother’s estate for the funds that he alleged had been misappropriated by them. In light of the mother’s pattern of behaviour, of being frequently and consistently generous towards her Favoured Son throughout his life, as well as her knowledge that the payment of such expenses continued after the Favoured Son and the Uncle had begun acting as her attorneys for property, the judge dismissed the Older Son’s motion. The judge stated that it was the mother’s prerogative to decide what she wanted to do with her money. The judge concluded that the funds were accounted for and no undue influence was present.

The big takeaway from this decision is with respect to costs. Notwithstanding their success on the merits, the Favoured Son and the Uncle could not recover any of the costs incurred in passing their accounts. The rationale for this decision was that, as co-attorney/co-estate trustee, the Favoured son and the Uncle failed to comply with their obligations pursuant to the Rules of Civil Procedure.

Under the Rules, an estate trustee, attorney or guardian can pass his or her accounts voluntarily on notice to the appropriate parties, or can be compelled by an order of the court under Rule 74.15. Rule 74.15(1) provides that any person who appears to have a financial interest in an estate may move for an order requiring an estate trustee to pass accounts. Furthermore, Section 42(1) of the Substitution Decisions Act provides for the passing of accounts of an attorney or guardian of property.

 

 

Thanks for reading.

Ian M. Hull

13 Mar

Alexa – take a hike

Suzana Popovic-Montag Estate & Trust, Estate Planning, Uncategorized Tags: , , , , 0 Comments

Amazon Echo and Google Home – here’s my prediction about these smart speakers. In 25 years, we’ll look at film clips or ads that featured the “cool things” that these devices did – and we’ll laugh. We’ll laugh the same way we laugh today about news clips from the 1990s that described the wonder of the new “internet.”

This CNN clip from 1993 is a great example of futurist hype about the internet and includes a (very wrong) prediction that if the internet keeps growing, there could be a day that school children come home and spend more time on the online Encyclopedia Britannica than playing Nintendo.

It’s not that today’s smart speakers aren’t an important step forward in the personal use of artificial intelligence – they are, just as the early internet was a necessary step toward the information access we enjoy today. The issue is that their usefulness at this stage is more for novelty than for actual functionality.

Limited range of features

Yes, the Amazon Echo and Google Home can get weather reports, answer basic questions, order pizza, and play music – all with voice commands. The issue is that your smartphone can do those things too. And while TV commercials tout several other amazing features (turning on lights, locking doors, turning up the heat), you’ll need to spend some money to allow for automated lights, locks and thermostats.

And are we really that taxed – or have our arms full that often – that we can’t flick a switch or turn a dial? I don’t think so, which is why for me these devices are novelties only.

More features are being added of course. The print edition of the Sunday New York Times in early January had several sections scattered throughout the paper advertising the new ways you could connect with the paper using Alexa. But these features are less about helping us, and more about a newspaper trying to find new ways to connect to more readers/listeners.

More to come

Something of use will evolve from these early smart speakers – eventually. I just don’t think we’re close at this stage. Even for seniors – who often have more limited mobility or other disabilities – the Echo and Home are a mixed bag. It takes a reasonably sharp mind to interact with AI-driven devices, and pairing new technology with individuals who have trouble remembering the right trigger word, or the range of tasks a device can perform, can often lead to frustration and devices collecting dust in the corner.

So, by all means have fun with the technology – the price point is right. But until the features get a bit more jaw-dropping, Alexa won’t be entering my home anytime soon. (Sorry girls!)

 

 

Thanks for reading,
Suzana Popovic-Montag

08 Mar

Sleeping is the New Standing

Paul Emile Trudelle Estate & Trust, Estate Planning, Uncategorized Tags: , , , 0 Comments

Standing was the new sitting. Now, sleeping is the new standing.

Behold – the sleeping desk:

 

As we all know, focus and attentiveness are key to workplace success and efficiency. Coffee is a great aid to maintaining this focus. However, afternoon coffee consumption can interfere with nocturnal sleeping patterns, leading to drowsy, unfocused mornings, thereby exacerbating the problem.

The solution? The sleeping desk (aka the nap desk).

According to an article by theheartysoul.com, an afternoon nap can improve mental alertness. A short nap can be more beneficial than a long sleep. (As if we needed more reasons to nap, see “8 Scientific Benefits of Napping”.)

The sleeping desk, designed by Nancy Leivaditou, is a multipurpose desk that can transform into a bed. See the desk in action, here.

Happy napping.

Paul Trudelle

06 Mar

Live well – just don’t buy the hype

Ian Hull Estate & Trust, Estate Planning, Health / Medical, In the News, Uncategorized 0 Comments

It’s a new year, and we all want to live well and healthy. While our bad habits can get in the way, we generally try to do the right thing.

But what’s right? In 2019, the notion of what’s “right” for our health is getting fuzzy. The reason? We live in an “always on” marketing world, and what can actually help us live well can take a back seat to the shiny new wellness tools that are being thrust upon us.

Think about it. Has there been a major “wellness” finding, backed by science, that’s emerged over the past 20 years? I’m not sure there has been.

Scottish writer, broadcast and family doctor Margaret McCartney lays out the truth we don’t want to hear in this Globe and Mail article. We don’t want to hear it because the advice is boring, obvious and “old news”.

“The truth is that well-being is simple, if not straightforward. Don’t smoke, don’t drink excessively, do exercise you enjoy, eat a Mediterranean-style diet with plenty of fruit and vegetables, interact with people, work at a job and hobbies you like, and don’t be poor.”

These are the evidence-based factors that contribute to health. And while poverty is not a choice for most people, the other factors are. Margaret McCartney’s fear is that we’re becoming so focussed on the shiny new wellness trends (cleanses, colonic irrigation, crystal-infused water, 10,000 steps, this diet, that diet) that we’re missing the bigger picture and the very basic things that can help us stay healthy.

The beginning of a new year is when wellness “hype” is at its peak. My advice? Don’t buy it. By all means, enjoy your Fitbit, your new exercise program, your life without sugar or carbs, or whatever it might be. But don’t ignore the science. None of us are perfect in our health behaviours, but let’s at least strive for what can make a proven, meaningful difference.

 

 

Thanks for reading,
Ian Hull

01 Mar

Put Up or Shut Up: Leading Trump When Challenging a Will

Paul Emile Trudelle Estate & Trust, Estate Planning, Trustees, Uncategorized, Wills Tags: , , 0 Comments

A recent decision of the Saskatchewan Court of Queen’s Bench highlights the importance of “going big or going home” when challenging a Will.

In the decision of Kot v. Kot, 2018 SKQB 338 (CanLII), an application to revoke probate and allow a will challenge to proceed by the spouse of the deceased was dismissed on the basis of a lack of credible evidence sufficient to raise a triable issue.

There, the deceased died on September 15, 2015. He died leaving a will dated August 4, 2014. In his will, the deceased appointed his spouse and two of his brothers as estate trustees. He gave one of his brothers a right of first refusal to purchase some of the deceased’s farm land upon his death.

Probate of the will was granted, and the three estate trustees proceeded to administer the estate.

The spouse then commenced her application to challenge the will. She said that the deceased tore up his will (actually, a copy of it: the spouse had switched the original will with a copy, and gave evidence that the deceased thought he was tearing up and therefore revoking the original). She said that she told the estate lawyer of the revocation, but the estate lawyer told her that it was better to have a will than no will, and that the estate lawyer did not tell her that if there was no will, she would inherit the entire estate. She also later alleged that the will was the result of undue influence from the brothers.

The court dismissed the spouse’s application.

The court held that the delay in seeking to challenge the validity of the will was not fatal to the application. However, while the delay did not defeat the application, it was a relevant consideration, and suggested that her claims had little credibility. Further, the evidence of the estate lawyer did not support her claim that the will was torn up by the deceased.

The court also found that there was no evidence of undue influence.

Interestingly, the court did not discuss the application of any limitation period. The court relied upon the Ontario Court of Appeal decision of Neuberger Estate v. York in concluding that mere delay did not preclude the challenge. However, in Neuberger, the will challenge was brought within the two year limitation period. In Kot, the challenge was brought 4 ½ years after the deceased’s death.

Have a great weekend.

Paul Trudelle

28 Feb

Famous Last Words: The Case for Writing Your Own Obituary

Charlotte McGee Uncategorized 0 Comments

This past October, my colleague, Paul Trudelle, penned a thought-provoking blog on writing your own obituary. In addition to addressing some therapeutic benefits of drafting one’s own “last words”, Paul outlined tips to overcome the initial writers block that might accompany an “auto”-bituary task. He also noted some of the motivating personal questions that the exercise might force a writer to confront.

Further to Paul’s blog, I recently came across two articles – one in the New York Times, and one in the Globe and Mail – where the respective authors discuss their experiences writing both their own and others’ obituaries. This blog will canvas some of the authors’ reasons for why we should consider putting pen-to-paper on our own last words.

…writing one’s own obituary “can be a form of summation and of caregiving for those who may be in need of direction after we are gone.”

Easing the Grief of Loved Ones

Susan Gubar, author of the above-noted New York Times article and professor emerita of English at Indiana University, asserts that while some may fear that writing a self-obituary seems narcissistic, the outcome is ultimately anything but. She notes that writing one’s own obituary “can be a form of summation and of caregiving for those who may be in need of direction after we are gone.”

Writing one’s own obituary alleviates the responsibility that may otherwise fall on a friend or relative during an inevitably difficult period of time. Particularly given the short time frame within which loved ones are expected to submit an obituary, undertaking the obituary task for oneself can hopefully ease some stress for loved ones after one’s death.

Preparing the Words for Tricky Personal Issues

As the propensity for blended family structures steadily increases, so do the instances of complex and sometimes complicated family dynamics. Choosing to write one’s own obituary enables the writer to determine in advance how certain delicate, but important, relationships should be documented. In Gubar’s article, she recounts struggling with how to mention a friend’s divorced spouse while assisting to write her friend’s obituary, for example.

Gubar also recalls writing an personal essay where she wrested with her irritation towards the “corny sentences of a canned obit”. She highlights how many obituaries generally leave out the messiness, confusion, and unfinished tasks of the deceased. Writing one’s own obituary provides the author with the freedom to decide whether they want to smooth over the more tumultuous chapters of their lives, or to highlight these chapters in their own words.

“…the writer [can] determine in advance how certain delicate, but important, relationships should be documented.”
Getting the Facts Straight

In Penny Lipsett’s article for the Globe and Mail, she identifies the daunting task that comes hand-in-hand with third-party obituary writing: information collection within a tight deadline. Lipsett notes that a third-party obituary writer “needs to check dates and other facts as the newspaper deadline looms.”

Even in one’s own life, it’s not unusual to mix up the dates of important milestones when simply trying to recount them off the cuff – I know I am guilty of this regularly. One can ensure that their timeline is fact-checked and accurate by taking the time to draft an obituary in advance.

Hitting the Highlights

In the infamous words of Toronto’s own 6-God, Aubery Graham (more commonly known by his moniker, Drake): you only live once. Writing one’s own obituary gives the writer the autonomy to capture the exact things that, in their view, made their life meaningful.  As Gubar eloquently notes, the exercise of writing one’s own obituary can be crucial both in “conveying the import of an existence [and] the values informing it.”

As well, even a close family member or friend may not be aware of the  pivotal events that have truly shaped their relative’s or companion’s life. In discussing this concept, Gubar recounts her friends’ children attempting to draft their father’s obituary: while they grasped the general outlines of their father’s trajectory as a university administrator, they were not as clear on “all the priorities that he might have wanted stressed.”

Thanks for reading!

Charlotte McGee

27 Feb

Five things that will disappear in our lifetime

Suzana Popovic-Montag Estate & Trust, Estate Planning, In the News, Uncategorized Tags: , , , , 0 Comments

It never stops. Another year on the calendar turns, and we receive another jolting reminder of the years passing. It’s not just loved ones that we lose over time – our way of life is also constantly under threat.

This isn’t necessarily a bad thing. While we may miss some aspects of life in a nostalgic way (milk being delivered to your milk box twice a week), there are other aspects that we’re happy to leave behind.

So, what will we soon lose? Here are five things that could well (depending on your age) disappear in your lifetime.

  1. Cash

Sweden may be the canary in the coal mine on this one. Half of the country’s retailers believe that Sweden will stop accepting cash by 2025. This has sparked calls for an e-currency and for actions needed to deal with this change (like what to do when electronic systems fail, or the power goes out). Read about it here.

It’s happening in Canada too of course. The thought of paying for a cup of coffee with a credit or debit card 10 years ago was laughable. Now it’s the norm. Bye-bye bank notes.

  1. Cancer

This is a change we all want – a cure for, or an end to, cancer. And there’s a new hope – the planting of immune cells from strangers into cancer patients to create the ultimate cancer-fighting treatment. Fingers crossed everyone. https://nationalpost.com/health/health-and-wellness/cancer-may-no-longer-be-deadly-in-future-say-british-researchers-announcing-breakthrough

  1. Car accidents

Okay, self-driving cars won’t eliminate traffic accidents completely – no technology is perfect or immune from outside attack. But just as traffic deaths in Canada have been cut in half since the 1970s due to safety measures such as seat belts and car seats, the move to the “auto-auto” will dramatically improve road safety. https://www.theatlantic.com/technology/archive/2015/09/self-driving-cars-could-save-300000-lives-per-decade-in-america/407956/

  1. Print newspapers

Yes, this is an obvious one – print newspaper subscribers are a dying breed. But what may also be reduced is the relevance and reach of news organizations in general, even those that have moved online. While many news organizations will survive post-print, this fascinating article explains how their influence could dramatically decline, even with a robust online presence. http://www.niemanlab.org/2018/09/what-will-happen-when-newspapers-kill-print-and-go-online-only-most-of-that-print-audience-will-just-disappear/

  1. Farm-raised meat

2018 saw the world’s first steak grown in a lab. There’s still work to be done on taste, texture and economic models, but real meat grown from cells is a new reality. There’s a good chance that “farm animals raised for slaughter” will seem as horrific to our grandchildren as medieval torture and gladiator death battles seem to us today. https://www.theguardian.com/environment/2018/dec/14/worlds-first-lab-grown-beef-steak-revealed-but-the-taste-needs-work

 

 

Thanks for reading!
Suzana Popovic-Montag

20 Feb

Do you lie to your doctor?

Ian Hull Estate & Trust, Estate Planning, Health / Medical, Uncategorized Tags: , , , 0 Comments

Your annual physical is approaching, and you’re still averaging three to four alcoholic drinks per night – despite the fact that you told your doctor last year that you were going to cut back.

At your appointment, your doctor reviews her notes and asks how the drinking is going. You surprise yourself by blurting out a complete lie – that you’re now going drink-free every other night and have effectively cut your drinking in half.

Your doctor is pleased, and she begins her examination. In your mind, you move on too, but with one perplexing question: why did you lie?

More common than you think

First, if you do lie to your doctor, you’re not alone. In a recent survey carried out by the University of Utah, about 80% of respondents admitted they lie to – or conceal information from – their doctor on issues that could have health implications. The people most likely to do this were women, younger patients, and those who rated their own health as poor.

The top three reasons?

  1. Not wanting to be judged or lectured
  2. Not wanting to hear how harmful their behaviour is
  3. Not wanting to be embarrassed.

This recent CBC article has more information on the research.

A new approach

Whether you blame this lying on preachy doctors who scare people into not fessing up, or on cowardly patients who don’t own up to their behaviours, one point is crystal clear: lying to your doctor does nothing to advance your health needs.

With more health professionals now available online (either by email, chat or video conference), we now have the tools to move to a more non-judgmental “health coaching” model, with regular check-ins on areas of concern.

For example, a regular smoker will still have an annual physical with their doctor, but rather than dealing with the issue of smoking annually in a single (dreaded) conversation, the doctor diverts the behavioural elements to a nurse practitioner with experience in smoking cessation who provides online coaching on a regular basis. Even if the smoking continues, the nurse practitioner can encourage the person to adopt other behaviours that at least move the needle on health (“hey, how about walking to work twice a week – is that doable?”). And with electronic medical records, they can add any changes to your file, so that your doctor stays in the loop.

In short, we free up doctors to focus on physical health needs at annual physicals (such as blood pressure and heart and lung functions) and rely on encouraging, non-judgmental health coaches to focus on behaviours that may be harming our health (such as risky sex, poor eating, gambling or drug and alcohol issues).

Some of these models exist today in various forms. So, if you’re tired of your own “dance with the truth” at your annual physical, ask your doctor about health coaching alternatives.

 

Thanks for reading.
Ian Hull

19 Feb

The Latest ONCA Pronouncement on Will Challenges

Doreen So Capacity, Estate & Trust, Litigation, Uncategorized, Wills Tags: , , , 0 Comments

 

Another will challenge was before the Court of Appeal this month on February 5, 2019.  Reasons for the panel, comprised of Pepall, Trotter, and Harvison Young JJ.A., were released in writing on February 13th.  Quaggiotto v. Quaggiotto, 2019 ONCA 107, can be found here.

The issue of validity was solely focused on a codicil that was executed by Maria Quaggiotto when she was 87 years old.  The codicil left the residue of her estate to one son, Livio, while her will had previously left an equal division of the residue to both of her sons, Livio and Franco.

After a 10 day trial, Justice Rogin found that the codicil was valid.

On appeal, the challenger Franco sought to overturn various findings of fact and findings of mixed fact and law.

Ultimately, the panel upheld the decision of Justice Rogin.

The panel reaffirmed the Court of Appeal’s decision in the Orfus Estate with respect to the notion that testators are not required to have “an encyclopedic knowledge” of their assets in order to satisfy the test for testamentary capacity.

Interestingly enough, the Court of Appeal found that the trial judge was sufficiently alive to corroboration requirements of section 13 of the Ontario Evidence Act even though Justice Rogin’s decision would appear to have erroneously cited section 13 of the Ontario Estates Act for this important statutory requirement.  The adage “form over substance” did not hold water in this appeal given that the actual legal requirement was adequately considered by Justice Rogin.

Thanks for reading!

Doreen So

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