Category: Uncategorized

24 Nov

Hull on Estates #602 – Can You Appoint a Litigation Guardian for Unborn and Unascertained Beneficiaries?

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This week on Hull on Estate, Stuart Clark and Garrett Horrocks discuss the distinction between appointing a “litigation guardian” or seeking a “representation order” when dealing with the interests of unborn and unascertained beneficiaries in estate and trust litigation.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Stuart Clark

Click here for more information on Garrett Horrocks

22 Oct

Art Reunited: A Tale of an Indefinite Administration

Doreen So Disappointed Beneficiaries, General Interest, In the News, Uncategorized Tags: , , , , , 0 Comments

I’ve always loved a good story.  I found this story from CNN particularly intriguing as it has to do with art that was stolen by the Nazis, and how this stolen piece of art eventually made its way to the U.S. just like its family had done after the Nazis came to power.

According to the Mosse Art Restitution Project, Rudolf Mosse was a successful Jewish entrepreneur in the late 19th and early 20th century.  He had a large publishing and advertising business that included the publication of 130 newspapers and journals.  In 1900, Mosse purchased “Winter” directly from the artist, Gari Melchers, at the Great Berlin Art Exhibit.  Mosse later died in 1920.  The sole heir of his estate was his daughter, Felicia Lachmann-Mosse.  Thus, Felicia came to own Mosse’s extensive art collection.  Felicia and her husband also took over and ran one of Mosse’s most prominent publications, Berliner Tageblatt, and the newspaper was renowned for its criticism of Adolf Hilter.  When Hilter came to power in 1933, Felicia and her husband were forced to leave Germany.  According to CNN, “Winter” was amongst the art that was seized by the Nazis when the Mosse family fled their home but “Winter” was only one painting out of the hundreds of pieces of artwork that were stolen at the time.

Some of this art was auctioned off by the Nazis; some have simply disappeared.  “Winter” left the Nazis’ possession and changed hands a number of times before Barlett Arkell bought it, as an innocent purchaser who was none the wiser, from a prominent gallery in 1934.  Since 1934, “Winter” has been displayed in the Arkell Museum in Canajoharie, New York.  When the Museum discovered that “Winter” was taken illegally from its original owner, the painting was surrendered to the FBI in 2019.

“Winter” has since been reunited with the Mosse family by way of the Mosse Foundation which represents the remaining heirs of Felicia Lachmann-Mosse.  To date, the Mosse Art Restitution Project remains actively engaged in their work to recover all of the artwork that was stolen by the Nazis.

The Mosse Foundation and the Project have plans to auction “Winter” in the near future and it is estimated to be worth hundreds of thousands of dollars.

Talk about a never-ending estate administration.

Thanks for reading!

Doreen So

15 Oct

Holding the Reins on Dependant Support?

Natalia R. Angelini Uncategorized Tags: , , , 0 Comments

The Succession Law Reform Act permits dependant support claims to be brought by a spouse, sibling, child and parent of a deceased. In order to qualify as a “dependant”, the person must be someone that the deceased (i) was providing support to immediately before death, or (ii) was under a legal obligation to support immediately before death.

Interestingly, the definition of “child” is not limited to minor children or financially dependant children. It is thus open to an independent adult child to whom no financial support was being paid immediately prior to death to apply for dependant support, premised on the argument that the deceased parent has a moral obligation to provide support. While we have seen the development and application of the moral obligation principle in Tataryn v. Tataryn Estate and Cummings v. Cummings, and although some decisions of the bench in British Columbia indicate that it is willing to apply the moral obligation principle in favour of independent adult children, in Ontario moral obligation appears to continue to be treated as but one factor to consider in the context of support claims. The fact remains that there is no legal obligation to provide support to an adult child.

A similar view may persist in the British court, which was recently reported to have disallowed an adult son’s plea for his wealthy parents to continue to financially support him, which litigation was brought after his parents significantly reduced their financial involvement. While in this instance the parents were alive and able to successfully respond to the court proceeding, had they died prior to or during the time when financial support was in the process of being reduced, would the adult son have had more success with such a claim? If his parents died subsequent to support being reduced or eliminated, would their estates still be vulnerable to a dependant support claim on moral grounds?

Although each case is fact-specific, I would not be surprised to see that in circumstances where there is a large estate and no other competing support claims, the court may work harder to striking a balance between fairness and testamentary intention, particularly where the parents are shown to have enabled a lifestyle and arguably created a dependency that they withdrew during adulthood.

Thanks for reading and have a great day,

Natalia Angelini

25 Sep

Extending the Extensions: Virtual Signing of Wills in Ontario Extended to October 22, 2020

Hull & Hull LLP Uncategorized Tags: , , , 0 Comments

As my colleague Paul Trudelle wrote in July, “Under the Reopening Ontario (A Flexible Response to COVID-19) Act (“the Reopening Ontario Act”), Orders made under the Emergency Management and Civil Protection Act that have not been previously revoked are extended and continued under the Reopening Ontario Act.”

At that point, several orders, including virtual will signings, were extended for a period of thirty days.

As my colleague Arielle Di Iulio discussed here, the remote execution of wills and powers of attorney using video conferencing and counterpart were extended to September 22.

This past week, the Ontario Government released another list of extensions including the virtual signing of Wills under O. Reg 129/20

The full list of orders subject to this extension can be found here.

These orders are extended until October 22, 2020 or until such time as they are extended once more.

Thanks for reading!

Ian M. Hull and Daniel Enright

25 Aug

Hull on Estates #596 – Resulting Trusts and Matrimonial Homes

76admin Hull on Estate and Succession Planning, Hull on Estates, Podcasts, Show Notes, Uncategorized Tags: , , , 0 Comments

This week on Hull on Estates, Natalia Angelini and Arielle Di Iulio discuss the court’s application of the presumption of resulting trust in Kent v Kent, 2020 ONCA 390 (CanLII).

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Natalia Angelini.

Click here for more information on Arielle Di Iulio.

17 Aug

Suspended Litigation Timings: A Friendly Reminder

Garrett Horrocks Estate Litigation, General Interest, Litigation, Uncategorized Tags: , 0 Comments

My colleague, Sydney Osmar, blogged in June on a summary of actions taken by the Ontario Legislature to issue, and later extend, the terms of certain orders issued in the days following the provincial state of emergency declared on March 17, 2020.  These orders were intended to provide direction in light of the procedural and administrative concerns arising as a result of the immediate suspension of courthouse operations that followed the declaration of the state of emergency and, in particular, the effect of the declaration on litigation time periods provided under the Rules of Civil Procedure.

The Legislature introduced two key regulations in an effort to provide guidance to the litigation bar. O.Reg 73/20, made on March 20, 2020, provided for an indefinite suspension of any limitation periods or period of time within which litigation steps were to be taken, as established by statute, by-law, or order of the Ontario government, for the duration of the state of emergency.

O.Reg 259/20, made on June 5, 2020, amended O.Reg 73/20 primarily in decoupling the suspension from the “duration of the emergency” to a fixed date of September 11, 2020, in order to provide certainty and predictability to members of the litigation bar.  The Emergency Management and Civil Protection Act provides that temporary suspensions by emergency order shall not exceed 90 days, hence the choice of a fixed date of September 11.  However, the Legislature remains empowered to issue further orders extending the suspension beyond the chosen date should such deferrals be required in light of the pandemic.

As of the posting date of this blog, no further guidance or direction has been delivered by the Legislature with respect to a suggested extension of the suspension period.  Although the circumstances are such that direction in that respect may be received on minimal notice, this blog is intended to serve as a mere reminder of the upcoming expiration of the suspension period or, in other words, the resumption of applicable litigation timings.

Thanks for reading.

Garrett Horrocks

23 Jul

Discovering Blue Zones

Doreen So General Interest, Health / Medical, In the News, Uncategorized Tags: , , , , 0 Comments

 

 

 

 

 

 

 

 

 

 

I learned about Blue Zones recently through Zac Efron’s new Netflix travel show, Down to Earth with Zac Efron.  Episode 4 brings Zac and the audience to Sardinia where Zac meets with Dr. Giovanni Pes, nutritionist and medical statistician, and Dr. Valter Longo, bio-gerontologist, to discuss their research on the centenarians who live there.  Blue Zones are regions of the world where people live much longer on average than everywhere else.  This concept was coined by Dan Buettner and there are five Blue Zones in the world:

  • Sardinia, Italy
  • Okinawa, Japan
  • Loma Linda, California (side note: California is also home to some of the world’s oldest-known living trees)
  • Nicoya Peninsula, Costa Rica
  • Icaria, Greece

According to Wikipedia, these Blue Zones have the highest rates of centenarians (i.e. people age 100 or above), and the people who live there suffer a fraction of the common diseases that ails the rest of the world and they enjoy more years of good health.

During the episode, Zac also visits a local woman who was born on April 15, 1920.  She was 98 years old when the episode was filmed.  Her husband had lived to 103 years old before his passing.  According to Dr. Longo, it is extremely rare to have a couple with such longevity.  Thereafter, ­­Liliana was asked to do a cognitive test that one-third of centenarians or people with dementia will have trouble with, but Liliana does this with flying colours by accurately drawing the numbers on a clock and overlapping shapes on camera.

Liliana’s test was administered in her native language.  In North America, the Montreal Cognitive Assessment (also known as the MOCA) is commonly administered to seniors as a screening tool for cognitive impairment like dementia.  The MOCA is in the news recently as a result of Donald Trump’s interview with Chris Wallace on Fox News Sunday.  Trump didn’t actually identify the exact cognitive test involved but he was proud to have “aced” the test.

Thanks for reading!

Doreen So

21 Jul

Hull on Estates #594 –An Expansion of Pecore in Calmusky v Calmusky

76admin Hull on Estate and Succession Planning, Hull on Estates, Podcasts, Uncategorized Tags: , , 0 Comments

In today’s podcast, Paul Trudelle and Garrett Horrocks discuss the court’s decision in Calmusky v Calmusky, which deals with the application of principles from Pecore v Pecore to designated assets.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Paul Trudelle.

Click here for more information on Garrett Harrock.

21 Jul

Fantasy Tuesday: How to #FreeBritney in Ontario

Doreen So Capacity, Guardianship, In the News, Litigation, Uncategorized Tags: , , 0 Comments

The #FreeBritney movement is a social media movement driven by the fans of Britney Spears, and it has been trending recently this month according to Global News.  Britney’s fans are concerned that Britney is being mistreated by her legal conservators.  Britney Spears has been under a court-ordered conservatorship since 2008.

In the years leading up to Britney’s conservatorship, there were a multitude of public incidents that called Britney’s wellbeing into question, the most iconic of which was perhaps the viral, tabloid photograph of Britney shaving her head in 2007.  In 2008, Britney was involuntarily hospitalized after police were called to her home.  Thereafter, Britney was placed under an interim conservatory order, which was ultimately made permanent.  Britney’s conservatorship meant that her father, James Spears, and lawyer, Andrew Wallet, had complete control of Britney’s assets, which is similar to a guardianship of property under the Ontario Substitute Decisions Act, 1992.  James Spears was given control of Britney’s health like a guardianship of person.

Despite being stripped of the right to control her own property and personal care, Britney’s career has flourished in the twelve years after 2008.  During the first year of her conservatorship alone, Britney appeared on television shows and even released a new album (Circus). Britney went on to release 3 more albums after that, and she was the star of a four-year concert residency in Las Vegas (which was excellent in my humble opinion).  Britney was also a judge on the television competition show, X Factor, where the judges of the show mentor and critique contestants on their performances.  For a list of her accomplishments, check out Britney’s extensive Wikipedia page.

In Ontario, a person is incapable of managing property if “the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision” (section 6 of the SDA).

With that in mind, Britney’s role as a judge on X Factor and her reactions on the show seem to show that she was appropriately reacting to the performances of the contestants and that she understood what was at stake in the competition.  However, the lay opinion of her fans (myself included) alone would be insufficient to satisfy the statutory requirements of a motion to terminate guardianship of property and person under Part III of the SDA.  If the motion is brought on a summary basis under section 73 of the Act, the moving party must include one statement from a capacity assessor and one statement by a second assessor or someone who knows the person, which indicate the following:

(a) that the maker of the statement is of the opinion that the person is capable of managing property, and set out the facts on which the opinion is based; and

(b) that the maker of the statement expects no direct or indirect pecuniary benefit as the result of the termination of the guardianship.

Similar statements are required to terminate a guardianship of person.

Earlier this year, Britney’s conservatorship was extended until at least August 22, 2020.

#FreeBritney and thanks for reading,

Doreen So

20 Jul

When and how can your travel insurance be voided?

Doreen So General Interest, Health / Medical, RRSPs/Insurance Policies, Uncategorized Tags: , , , 0 Comments

The late Donald Farb called his insurance company to renew his travel insurance policy before his trip to Florida.  Mr. Farb spent about half an hour with a telephone representative from Manulife to complete the insurance application.  He said “no” to a variety of questions regarding his medications and pre-existing conditions.  Thereafter, the travel policy was issued on the basis of the information provided by Mr. Farb, and Mr. Farb went on his trip.  While he was in Florida, Mr. Farb was unexpectedly hospitalized and he incurred over $130,000 (USD) in hospital expenses.  Manulife later denied Mr. Farb’s claim for reimbursement and took the position that his policy was voided on the grounds of misrepresentation.  Mr. Farb died before his insurance claim was resolved and his Estate commenced a court application to continue Mr. Farb’s dispute with Manulife.

In considering the Estate’s application, Justice Belobaba of the Ontario Superior Court of Justice reviewed the first principles of the Insurance Act and how the Act is designed to protect both the insurer and the insured.  While insurance companies are protected by the insured’s duty to disclose, and the right to void coverage if there was a failure to disclose or misrepresentation, the consumer is protected by the requirement that the application process be done in writing so that the consumer will have the opportunity to review the information provided and to make any necessary corrections before the policy takes effect.

Justice Belobaba found that Manulife’s application process satisfied the requirements under the Insurance Act.  He found that there was no issue with the telephone service provided by Manulife and the way that information is collected verbally from the applicant because the completed application form is emailed, in writing, back to the applicant for verification.  The emailed and mailed copy of the insurance policy also contained a multitude of warnings asking the insured to review their policy carefully before traveling and that “the policy is void in the case of fraud, attempted fraud, or if you conceal or misrepresent any material fact in your application”.

As evidence before the Court, Justice Belobaba was provided with an audio recording of Mr. Farb’s telephone call with the insurance representative, and a copy of the materials that were emailed and mailed to Mr. Farb.  Justice Belobaba found that Mr. Farb had two months to review his answers to the medical questions that were asked of him, and there was no evidence that Mr. Farb ever contacted Manulife to correct his answers, which was sufficient to conclude that Manulife was within its rights to void the policy.

The Estate’s application was dismissed, and you can read the full reasons for decision in Estate of Donald Farb v. Manulife, 2020 ONSC 3037, by clicking here.

Travel insurance should always be top of mind before travelling.  It is a good idea to reach out to your insurance company and review your existing policy and the information contained in the underlying application before you go, especially under the present circumstances with COVID-19.  The issue of whether testing and medical care for COVID-19 will be covered while abroad is important to consider before any travel plans are finalized.

Thanks for reading,

Doreen So

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