Category: Uncategorized

29 Nov

When Administering an Estate, Don’t Let Things Drag

Hull & Hull LLP Beneficiary Designations, Estate & Trust, Estate Litigation, Estate Planning, Support After Death, Trustees, Uncategorized, Wills 0 Comments

My father used to have a saying: “Whatever drags gets dirty.” He would trot it out whenever one of us waited too long to do something and as a result, doing that thing became messy, complicated or impossible. For example: I was supposed to mail a letter. I didn’t mail the letter. Now I can’t find the letter. “Whatever drags gets dirty!”. Thanks, Dad.

Growing up, I thought that this was a widespread adage. Apparently, it isn’t. I searched it up on the internet and most of the results referred to Rupaul’s “Drag Race”.

The adage may fittingly sum up the lesson contained in the decision of the Nova Scotia Court of Probate in Kelly Estate, 2019 NSPB 1 (CanLII).

There, the deceased’s daughter and estate trustee, Carrie, brought an application for the possession of an urn containing the cremated remains of the deceased. The deceased died 13½ years before the application. Probate was granted 8 years before the application.

In the deceased’s will, cremation was requested, and Carrie was expressly given “the powers to decide what will happen with the said ashes.” This was consistent with the court’s observation that “Disposition of the deceased is one of the most fundamental tasks an executor/rix can undertake on behalf of the deceased.”

However, after the deceased’s death, the ashes were taken by Carrie’s sister, Cheryl. They remained at Cheryl’s home, apparently with the acquiescence of Carrie. The court noted that there was no evidence to suggest that there were prior attempts by Carrie to regain custody and control of the ashes over the 13½ years since death.

The court cited the BC decision of Re Popp Estate, 2001 BCSC 183 (CanLII) where the deceased’s husband, as estate trustee, was said to be entitled to control the disposition of the deceased’s remains, provided he did not act capriciously. As the husband was acting capriciously, he lost the right to deal with his spouse’s remains.

The court went on to find that by allowing the urn to remain in Cheryl’s possession for 13½ years, Carrie as estate trustee had in fact determined the disposition and final resting place of the urn: with Cheryl. A change of Carrie’s decision this late in the game “seems capricious at best or malicious at worst”, and the court was not prepared to order a transfer of the urn from Cheryl to Carrie.

When administering an estate, as in life in general, don’t let things drag.

Thanks for reading.

Paul Trudelle

21 Nov

Hurray for Telomerase!

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

According to this CNN article, a scientific breakthrough has occurred thanks to research from the Arizona State University and Texas A&M University.  These scientists have, for the very first time, identified the structure of telomerase in plants.

Telomerase is an enzyme that creates the DNA of telomeres.

>>Telomeres protects our cells from aging as our cells multiply.

>>>If our cells are protected from aging, then so will our bodies…

This breakthrough will allow scientists to study how telomerase in plants compare to the ones in animals, including humans!  For example, there is a pine tree, named Methuselah, that is 4,845 years old in California.  It is so inimitable that the location of this particular pine tree is kept secret for protection.

On the flip side, certain cells that have too much telomerase can be deleterious to our health, like cancer cells.  The ability to stop a cancer cell from multiplying by shortening its telomeres could be revolutionary!

Fun fact: these components of life are so important that the 2009 Nobel Prize in Physiology or Medicine was awarded to Elizabeth H. Blackburn, Carol W. Greider, and Jack W. Szostak for their research on how chromosomes are protected by telomeres and telomerase.

Thanks for Reading!

Doreen So

20 Nov

Defining Death: McKitty v Hayani

Ian Hull Estate & Trust, Estate Litigation, Estate Planning, Uncategorized Tags: , , , 0 Comments

Last month, in the case of McKitty v Hayani, 2019 ONCA 805, the Ontario Court of Appeal had to consider a challenge to the medical and common law definition of death on the grounds of freedom of religion. The Court also considered whether someone’s religious beliefs should be a factor when deciding whether they are legally deceased. In the end, the Court unanimously declined to rule on whether religious beliefs should be taken into account, but there were some key takeaways from the decision, and a framework was made that invites future challenges. This issue could have an important application in estates law, as it examines the standard for when someone is considered legally deceased.

Facts

Taquisha McKitty was declared dead in September 2017 following a drug overdose. The medical staff attending to her declared her dead due to “neurological criteria”; however her relatives were granted an injunction to keep her on life support, arguing their Christian faith only considers someone deceased upon cessation of cardiovascular, instead of neurological, activity. They made the argument that according to the freedom of religion in section 2 of the Canadian Charter of Rights and Freedoms, they have the right to have their religious views taken into account when it comes to determination of death and removal of life support. The point is now somewhat moot because McKitty has since died from both neurological and cardiovascular criteria; however important groundwork was laid for a potential future challenge.

Decision

The Court of Appeal unanimously concluded that it did not have enough information to rule on the matter. To be able to appropriately rule on the Charter issues, the Court held it would need more evidence on the duties and legal obligations of doctors, McKitty’s religious beliefs, and the religious beliefs of her community. The Court did accept the common law definition of death as being cessation of neurological activity, but left this definition open to future challenges based on freedom of religion. While not providing a definitive answer, the Court did craft a legal framework for how this issue should be addressed in future. This framework includes acknowledging that death is not just a medical determination but also an “evaluative” legal concept. The Court also ruled that the Charter still applied to McKitty as a legal “person” even though she was clinically dead, and a lack of neurological activity does not remove her right to challenge the criteria used to declare her death. With this framework in place, it remains very possible that we might see a further challenge within this framework in the near future.

Conclusion

In this case, the current definition of death as cessation of neurological activity was confirmed, but it remains very possible that this could be challenged on freedom of religion grounds. This has very interesting implications for estates law. For example, in families of mixed faiths, some members of the family might consider a relative to be deceased, while other members might consider them to be alive. This would cause a tricky situation when it comes to dividing up the estate. Watch this space!

Thanks for reading,

Ian Hull and Sean Hess

19 Nov

Hull on Estates #584 – Retroactive Effect of Proof of Death

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

This week on Hull on Estates, Natalia R. Angelini and Kira Domratchev discuss a recent decision on the retroactive effect of proof of death in Threlfall v Carleton University, 2019 SCC 50 that dealt with a pension case from Quebec.

A helpful Canadian Lawyer magazine article by Elizabeth Raymer summarizing this decision can be found here.

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 R. Angelini.

Click here for more information on Kira Domratchev.

19 Nov

The Tradition Lives On: Costs Payable from the Estate where the Deceased was at Fault

Doreen So Continuing Legal Education, Disappointed Beneficiaries, Estate Litigation, Executors and Trustees, Uncategorized Tags: , , , , 0 Comments

Competing applications about the ownership of a home were before the Court in Marley v. Salga, 2019 ONSC 3527.  On the death, the home was jointly owned between the deceased (Salga) and his wife (Marley).  Notwithstanding the registered, legal ownership of the property, Salga’s Will gave Marley a lifetime right to occupy and use Salga’s one-half interest in the property and thereafter directed that the house be sold for the benefit of the residuary beneficiaries.

This led the residuary beneficiaries to commence an Application for a declaration that the Estate is entitled to an undivided one-half interest in the home and for an order requiring the Estate Trustee (Klassen) to sell the home right away (the “Salga Application“).  Thereafter, Marley commenced her own Application for a declaration that she was the sole legal and beneficial owner of the property, or, alternatively, that her interest in the property is greater than 50% (the “Marley Application“).

Ultimately, Justice Reid found that ownership of the property was severed by the deceased in the course of his dealings but denied the Salga Applicants’ request that the property be sold before the termination of Marley’s interest under the Will.  The Marley Application was also denied.  Our blog on this decision can be found here.

The parties were unable to agree to the issue of costs.  Justice Reid, 2019 ONSC 6050, followed the traditional approach to costs in estate matters and the costs of both applications, on a partial indemnity scale, were ordered from the Estate.  In reaching this conclusion, Justice Reid considered and found the following:

  1. The Marley Application was in essence a response to the Salga Application and the costs of both proceedings were treated as one;

 

  1. Both parties were found to be partially successful: the Salga Applicants were successful in obtaining a declaration that 50% of the home belongs to the Estate and the Marley Applicant was successful in preventing an immediate sale of the home;

 

  1. Consideration was given to the fact that an award of costs from the Estate meant that the Salga Applicants (as the residuary beneficiaries) would be effectively bearing their own costs as well as Marley’s costs. However, that was not enough to outweigh the deceased’s responsibility to act unambiguously by severing his interest on title during his lifetime.

 

  1. Costs against the Estate in this case “places the responsibility for the litigation squarely on [the deceased] where it belongs“.

This costs decision is also an informative read for the costs of an estate trustee as a respondent in both proceedings and how costs should be paid from an estate where there is no liquidity.

Thanks for reading!

Doreen So

18 Nov

What happens when you are out of time to serve a claim?

Doreen So Continuing Legal Education, Estate Litigation, Litigation, Uncategorized Tags: , , , 0 Comments

A recent master motions in the Estate of Robert William Drury Sr., 2019 ONSC 6071, considered the issue of an extension of time to serve a statement of claim.

Robert Sr. owned a property where the defendant Shirley lived with her spouse Hugh Drury.  When Hugh Drury died, Robert Sr. sought vacant possession of his home.  Robert Sr. died on September 8, 2016.  Days later there was a fire on the property on September 24th and Shirley was criminally charged with arson.

Almost two years later, the estate trustee for Robert Sr.’s Estate issued a statement of claim for malicious and intentional arson damage, or gross negligence causing loss of enjoyment of life, or damages for loss of property.   That claim was issued on September 19, 2018 while Shirley’s criminal proceedings were underway.  Pursuant to Rule 14.08(1), Robert Jr. had 6 months to serve the civil claim on Shirley which expired on March 19, 2019.  Shirley was not served until June 14, 2019 when Robert Jr. brought a motion for an extension of time.

In applying the test that was set out by the Court of Appeal in Chiarelli v Wiens, 2000 CanLii 3904, the extension of time was ultimately allowed by Master Sugunasiri.

The delay was only three months and the prejudice to Shirley was minor.  Robert Jr. explained that he acted on the advice of counsel when the decision was made to serve Shirley after the conclusion of the criminal proceeding.  This decision was not personal or contemptuous.  As for Shirley, while memories fade over time, the criminal proceeding was found to be an ameliorating factor that preserved her evidence for the civil proceeding.

In reaching this decision, Master Sugunasiri also considered an instance where an extension of time was denied because the delay was caused by the Plaintiff’s decision not to serve the claim until he had enough money to fund the proceeding.  In that case, the Court found that the Plaintiff ought to bear the consequences of the risk that he took under the Rules.

Thanks for reading!

Doreen So

Turning off an alarm clock
07 Nov

Getting started on making a will with your spouse

James Jacuta Estate & Trust, Estate Litigation, Estate Planning, Trustees, Uncategorized, Wills 0 Comments

Some basic questions to get you thinking about starting a will with a surviving spouse scenario:

  1. Everything to spouse Absolute (no strings attached)?
  2. Some or all assets held in a Spousal Trust (some conditions will apply) ?
  3. An amount immediately to children with the balance to the spouse Absolute?

For lawyers – the Hull e-State Planner is a tool for making wills and has been called “the future of will planning”. To book your free demo today email to info@e-stateplanner.com

Thanks for reading,
James Jacuta

If this blog is interesting, please consider these other related resources:

Standard Components of a Will

Formal Validity of Wills

Top 5 Reasons for Making a Will

Should a Millenial have a Will?

Estate Planning for Millenials

Too Young to Plan?

The Next Generation of Wealth Transfer

05 Nov

Hull on Estates #583 – Oppression Remedies

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

This week on Hull on Estates, Noah Weisberg and Doreen So discuss a recent decision on oppression remedies in Corber v. Henry and how corporate issues may arise in estate matters.

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 Noah Weisberg.

Click here for more information on Doreen So.

05 Nov

Why wait? It is Make a Will Month!

James Jacuta Estate & Trust, Estate Litigation, Estate Planning, Trustees, Uncategorized, Wills Tags: 0 Comments

The book “The Beautiful Ones” was released last week in Canada. Part memoir (until his teenage years) and part biography, the book provides some insights into the life of one of the most influential musicians of our time. “Prince” Rogers Nelson, a multi-talented singer-songwriter died on April 21, 2016 at the age of 57 from an accidental fentanyl overdose at his estate outside Minneapolis. He died without a will.

The Minnesota Star Tribune reported about two weeks later, on May 8, 2016 that: “Suddenly, wills and estates are a topic everyone wants to learn about.” And “They are talking about it at the family barbecue, the Rotary Club, and the Anoka Area Chamber of Commerce”.

According to several surveys, approximately 65% of Canadians do not have an “up to date” will. “Make a Will Month” encourages Canadians to make or update their wills. Doing so can save a lot of expense, delay, and conflict in the future. A proper will and estate plan means reducing or eliminating problems that arise when a person dies intestate (without a valid will). It has been reported that three years after his death Prince’s estate is still not distributed. Lawyers for his sister and half-siblings are squabbling. Claims by some alleged descendants have been dismissed.  According to some estimates the estate is worth more than $300 million USD.

All kinds of people, including famous musicians, die without having made a valid will. Some who did not get around to making a will include: Jimi Hendrix, Bob Marley, Kurt Cobain, Salvatore “Sonny” Bono, Duke Ellington, Barry White, George Gershwin, and Amy Winehouse.

Why wait? It is Make a Will Month! Please consider making a will. Thanks!
James Jacuta 

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