Category: Uncategorized

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

03 Jul

Juries and Social Media

Paul Emile Trudelle Uncategorized 0 Comments

The right to a trial by jury is a fundamental right in many proceedings. In a trial by jury, the lay jurors consider the evidence led at trial and make factual determinations based on the admissible evidence. Trials by jury, however, involving 12 (or 6 in the civil context) lay people as triers of fact can easily get complicated in a wired world where access to additional facts outside of the trial process is widely available.

Take, for example, the recent decision in R. v. Graham. There, the two accused were charged with fraud over $5,000 in relation to an alleged fraud and misappropriation of over $2m from a lawyer’s trust account.

In the course of the trial before a jury, one juror asked to be excused, as he learned that his child’s school was near where one of the accused lived. He feared for his and his family’s safety in the event that they bumped into the accused or her family in their neighbourhood. He was excused. Then there were 11.

A second juror was subsequently excused. That juror had accessed the LinkedIn profile of one of the accused. The juror admitted that she had done so, but said that she did the searches at the beginning of the trial, in July 2019. However, a LinkedIn printout showed that she had done so in September, 2019. The juror had also searched the lawyers involved in the case. She was excused.  Then there were 10.

As there was an issue as to what the other jurors may have learned or have been told, the trial judge conducted an inquiry of the other jurors. They were asked if they did research into any of the participants in the trial, what they found, and what they told or were told by other jurors. The judge learned that three of the jurors had conducted “research”, despite the trial judge’s instruction not to. One searched the lawyers on LinkedIn, one searched the lawyers on Facebook. A third was told by other jurors about where one of the lawyers went to school.

The trial judge found that while the two jurors had breached her instructions, the breach was not one that should lead to their discharge. Unlike the juror who was discharged, the other inquisitive jurors did not search for information on the accused, just their counsel.

The trial judge noted that if further jurors were discharged, there would be a mistrial: a jury with less than 10 members was not permitted.

In the criminal context, the Supreme Court of Canada in R. v. Khan at para. 72 stated that “…the accused is not entitled to a perfect trial. He is entitled to a fair trial, but it is inevitable that minor irregularities will occur from time to time. The trial cannot be held to a standard of perfection, provided it remains fair in reality and in appearance.” In other words, we can’t let perfection be the enemy of the good.

The trial judge referred to this quote, and ordered that a discharge of the two further jurors or a mistrial was not warranted, and that a further, strong, mid-trial instruction to the jurors advising them that they are not to investigate, research or seek out information about the case or anyone involved in it, including the accused or any of the lawyers was sufficient.

Thanks for reading.

Paul Trudelle

26 Jun

Shhh! It’s a Secret! A Secret Trust!

Paul Emile Trudelle Uncategorized 0 Comments

“Secret trusts are rarely encountered today, but have a long history.”

So begins the B.C. Court of Appeal decision in Bergler v. Odenthal, 2020 BCCA 175 (CanLII).

There, the deceased died without having made a will. The trial judge found that prior to her death, the deceased told her common-law spouse and other relatives that she wanted her estate to pass to her niece Susanne if and when her common-law spouse became involved in a new relationship.

Upon the deceased’s death, her assets passed to her common-law spouse as jointly held assets. The common-law spouse then entered into a new relationship, and ended up getting married. Susanne sued, claiming that she was entitled to the deceased’s estate pursuant to the terms of the secret trust.

The trial court and Court of Appeal agreed with Susanne’s claim.

The two essential elements of a secret trust are (1) a communication by the deceased person to his or her beneficiary of the terms of the trust (ie, that the “three certainties” are addressed) and (2) an acceptance by that person of the terms of the trust. Acceptance does not have to be express: acquiescence may be sufficient. The evidence was sufficient to establish that the deceased clearly expressed the terms of the trust in her spouse’s presence, and that he agreed to the terms.

As in most “secret trust” cases, the evidence of the terms of the trust was hearsay. However, in Bergler, the trial judge accepted the evidence as being necessary and reliable. In addition, the common-law spouse confirmed that he told the deceased that he would abide by her wishes.

The common-law spouse argued on appeal that the trust would not apply to the jointly held property, as this would pass outside of the deceased’s estate. The Court of Appeal disagreed, finding that, firstly, it was the deceased and the common-law spouse’s understanding that the trust would apply to the jointly held property, and secondly, that as a matter of law, the creation of the secret trust would have severed the joint tenancy. The court relied on a number of cases that held that a finding of a secret trust either impressed certain jointly held assets with the secret trust or severed the joint ownership.

As can be seen from Bergler, a finding of a secret trust can be a very powerful tool, tying up estate assets and even assets passing outside of the estate.

For other blogs on secret trusts, click here or here.

Thank you for reading.

Paul Trudelle 

24 Jun

Unconscionable Procurement : An Old Doctrine Reawakened

Ian Hull Uncategorized 0 Comments

The case of Gefen v Gaertner 2019 ONSC 6015 revived the doctrine of unconscionable procurement, which had been dormant since the early 1900s, as an equitable principle capable of setting aside an inter vivos gift. The principle behind the doctrine is that it is unconscionable for someone to be instrumental in procuring a gift to themselves from a donor who does not fully appreciate his or her actions.

Facts of the Case

Henia Gefen, along with her late husband, Elias, had accumulated significant wealth through investing in real estate. The couple were married for 65 years and had three children: Harvey, Harry, and Yehuda. Unfortunately, relationships deteriorated in the family after Elias’s death, with Henia and Harvey becoming at odds with Harry and Yehuda.

In a series of inter vivos gifts, more than $25M in assets was transferred from Henia to Harvey after Elias’s passing. This was contested by Harry and Yehuda, who relied on the doctrine of unconscionable procurement. The court determined that the onus was on the party attacking the transfer (Harry and Yehuda) to prove, on the balance of probabilities, that a presumption of unconscionable procurement applies. This can be done by satisfying the following two requirements:

(1) A significant benefit has been obtained by the procurer; and

(2) There was active involvement on the part of that person in procuring or arranging the transfer from the maker of the transfer.

If these two requirements are satisfied on the balance of probabilities, the court then presumes that the transfers were prima facie unconscionable, and the onus shifts onto the other party in receipt of the gift to prove that the transfers were not unconscionable.

Specifically, the other party must prove the 3rd element, which is that:

(3) The gift was a voluntary, deliberate, well-understood act of the donor, and that the donor did appreciate its effect, nature, and consequence.

(See John E.S. Poyser, Capacity and Undue Influence, 2nd ed (Toronto: Thomson Reuters Canada, 2019)

Result

This case has much wider significance in Ontario law. It continues to be the law that a significant benefit procured by the active involvement of the recipient may be set aside if the recipient fails to prove that the donor fully appreciated the nature, effect, and consequence of their gift. If this cannot be proved, the gift is deemed to have been unconscionably procured. The dormant doctrine of unconscionable procurement was awakened in Gefen v Gaertner, and an additional tool to challenge inter vivos gifts has been now revamped and reintroduced into the legal system.

Thanks for reading!

Ian Hull and Sean Hess

23 Jun

Hull on Estates #592 – Dealing with the Body: Issues on an Intestacy

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

This week on Hull on Estates, Natalia Angelini and Doreen So discuss the estate administration issues surrounding the disposition of the body, where there is no will, in Re Timmerman Estate, 2020 ONSC 3424 (CanLII) and Re Timmerman Estate, 2020 ONSC 3425 (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 Doreen So.

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