As some readers may recall, Jordan Atin of Hull & Hull LLP recently blogged on radio and cartoon legend Casey Kasem, who was “dad-napped” by his second wife, Jean, when she moved him from his Los Angelos home without telling his children. For years, Casey’s daughters and Jean had been in a heated conflict regarding his assets and who had decision-making powers with respect to Casey’s personal and health care. Casey, who retired in 2009, reportedly suffered from Lewy body dementia, with symptoms similar to Parkinson’s disease.
Sadly, Casey’s dad-napping saga has come to an end, as he recently passed away on Sunday, June 15th. As stated in the recent RISMedia article, Casey Kasem’s Ordeal Offers 5 Estate-Planning Lessons, in passing away, Casey left behind a media legacy and some eye-opening lessons when it comes to end-of-life care and estate planning. As set out in the article, such lessons include:
- Have an Advance Healthcare Directive (“AHD”), also known as a “Living Will”, in place which sets out your wishes with respect to your health care wishes. An AHD is used in the event of an injury or illness (including through old age) that leaves you unable to communicate your health care wishes to others.
- Consider also executing a Power of Attorney (“POA”). A POA can be drafted with respect to both property and/or personal care, and appoints someone to make decisions on your behalf, when you are no longer capable of making such decisions yourself.
- Consider a conservatorship. In cases where a AHD or POA has not been executed by someone who is now incapable, or like in Casey’s case the incapable person cannot be found, a loved one may apply to the court to be granted a conservatorship, or guardianship, over the incapable person’s personal care and/or property.
- Be specific about life support. Do you know whether your loved ones would want to be taken off of life support? Do your loved ones know your preferences? In Casey’s situation, his daughter knew he did not want to live on life support. Not only was she able to abide by his specified wishes by having him taken off, but by addressing this issue in his AHD, he made this terribly difficult and emotional decision much easier for her.
- Lastly, where family feuding has already begun over a living family member’s assets, be prepared for Estate litigation.
Thankfully, Casey’s passing away also reminds us to cherish Saturday morning cartoons and his timeless character, Scooby-Doo.
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While the Substitute Decisions Act,1992 expressly contemplates that Attorneys for Property may take compensation, there is no such provision for Attorneys for Personal Care. Furthermore, though the Act states that the Lieutenant Governor of Ontario may make regulations with respect to when a guardian (and most probably, an attorney) for personal care may take compensation, no such regulations have yet been passed.
A trustee, guardian or personal representative is entitled to such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about the estate, as may be allowed by a judge of the Superior Court of Justice.
Is determining when circumstances are appropriate to claim such compensation, the court has relied heavily on the legal concept of reasonableness.
In the leading decision of Justice McDermid on this issue, Re Brown, the Trust Company of the Bank of Montreal attempted to take compensation in the amount of $2,725.00 for the personal care services provided to Mr. Brown when passing its accounts. The Public Guardian and Trustee opposed this claim on the grounds that there was no statutory authority for the Trust Company to claim such compensation.
In coming to his decision to allow the Trust Company to take this compensation, Justice McDermid held that the hallmark for such compensation must be reasonableness. To be reasonable, Justice McDermid further espoused, the services rendered must have been necessary or desirable and reasonable, and the amount claimed must be reasonable.
Whether a claim is reasonable, however, will ultimately be determined by the court in the circumstances, and the court will consider factors such as the need for services, the nature of services provided, the qualifications of the care provider, the value of such services, and the time period during which the services were provided. Lastly, there must be some evidentiary basis to support the claim for compensation.
The concept of reasonableness in terms of compensation for Attorneys of Personal Care has been further examined in case law since Justice McDermid’s decision, however, this case is a valuable starting point when considering whether to make such a claim.
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While many estate planning and litigation issues relate to how parents intend to divide and distribute their estate amongst their adult children, an increasing trend is developing whereby the adult children must financially support their parents in their golden years.
Where adult children do provide financial assistance to their parents, unique concerns may need to be dealt with, especially as between siblings. In a recent article entitled “When it comes to siblings and supporting parents financially, things can get complicated”, Financial Post writer Ted Rechtshaffen discusses a few of the financial and familial considerations involved in such a scenario.
For instance, in an ideal world, adult siblings would be able to split the financial support of their elderly parents evenly. In reality, however, this may not be possible where the financial circumstances of siblings significantly differ. Furthermore, in such a situation, consideration must be given to whether it is beneficial to have an open dialogue amongst all family members regarding the financial difficulties being faced, or whether the conversation should be kept between the parents and the sibling who can financially assist in order to protect feelings.
Mr. Rechtshaffen’s article also deals with other considerations that extend beyond the acute financial assistance provided to parents, such as whether bearing such financial responsibility could threaten the adult child’s ability to fund their own retirement.
As this situation is now becoming more common, Mr. Rechtshaffen’s article is a very valuable article to read, if only for the perspective on this re-emerging social trend.
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The National Archives of the United Kingdom has an online searchable catalogue of historical wills and probate filed at the Prerogative Court of Canterbury between 1384 and 1858. Until 1858, authority for probate rested with the Church of England ecclesiastical courts.
The Prerogative Court of Canterbury had jurisdiction over the Estates of wealthy individuals. A testator was considered wealthy if their estate was valued at over five pounds sterling. Accordingly, the wills of many famous Britons can be found in the National Archives’ database.
The National Archives has made some of these wills available for free, including the likes of playwright William Shakespeare, author Jane Austen and composer Henry Purcell. We have previously blogged about Shakespeare’s will here. The will of captain, privateer, navigator, slaver and singer of King Phillip II’s beard, Sir Francis Drake, is available for a small sum but I have found a transcript of his will for free here.
You may be wondering why the certificate of probate is written in the same handwriting as the will. These are not the original wills. Before the advent of photocopiers, the process of probate included taking the original will to the court so that court staff could make a handwritten copy of the entire will, followed by a small written statement attesting to its authenticity. Fortunately, today’s probate process is nowhere near as cumbersome.
Jane Austen left £50 to her brother Henry, and £50 to Henry’s cook, Madame Bigeon. She left the rest to her sister, Cassandra.
Henry Purcell left his estate to his wife.
Sir Francis Drake’s will was more complicated. According to the terms of his marriage settlement, Sir Francis was required to leave his estate to his wife. However, historians believe that Sir Francis may have wanted to keep his estate in the Drake name. Without any children of his own, he wished to devise his estate to his younger brother, Thomas. Historians speculate that this may have been the reason he declined to sign the will before leaving on his voyage to the West Indies. In the will, Sir Francis also left £40 to the poor of Plymouth.
His codicil, which he did sign, gave legal effect to his intention to leave the Estate in the family name. In the codicil, he devised £2,000 to Thomas, and appointed his cousin, also named Francis Drake, as executor. Francis Drake (the cousin) was bequested his Yarcomb Manor for two years on the condition that he duly administered the bequest to Thomas. Following expiry of that provision, the Yarcomb manor would revert to Thomas. He left his Sampford Spiney Manor to Jonas Bodenham, his first wife’s sister’s child who he had raised as a son.
A later indenture named Thomas Drake the full and sole executor of Sir Francis’s estate and granted his wife the remainder of certain leases leased from Plymouth’s mayor.
With three testamentary documents replete with corrections and additions, Sir Francis Drake’s estate was the subject of considerable litigation. In the county court, the will was upheld. In a subsequent action, however, both the codicil and the will were upheld.
While the process of obtaining probate has become much easier in the past century, sloppy estate planning remains the cause of considerable amounts of litigation. Accordingly, we recommend planning your estate before embarking on any daring naval raids against the Spanish King.
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Testamentary Hate Speech?: McCorkill v. Streed, Executor of the Estate of Harry Robert McCorkill (aka McCorkell), Deceased
In a recent decision handed down from the New Brunswick Queen’s Bench, Justice William T. Grant issued a rare judgment declaring a bequest contrary to public policy and/or illegal and therefore void.
Harry Robert McCorkill died on February 20, 2004. His Last Will and Testament appointed a member of the National Alliance, a White Supremacist hate group based out of the United States, as Estate Trustee. Harry left his entire Estate to the National Alliance.
The Attorney General of New Brunswick, the Center for Israel and Jewish Affairs, the League for Human Rights of B’Nai Brith Canada, and the Canadian Association for Free Expression (CAFE) all intervened.
At issue in the case was whether the “writings and other communications” of the National Alliance were “illegal and/or in violation of public policy” and if so, whether the court should declare the bequest invalid, “given that it is made to a beneficiary whose activities are contrary to public policy but not made for specific purposes.”
Justice Grant had little difficulty in determining the National Alliance had engaged in illegal activity. Hate speech is illegal in Canada under s. 319(2) of the Criminal Code, which forbids persons from wilfully promoting hatred against an identifiable group in public. It was clear from the evidence that the National Alliance’s activities were sufficient to meet this definition: “All of these publications can only be described as racist, white supremacist and hate-inspired. They are disgusting, repugnant and revolting.”
The more salient question was “whether or not the NA disseminates information that is in violation of public policy in Canada.” I have previously blogged about what conditions courts will find violate public policy here and Ian Hull has blogged about it here. Justice Grant ruled that an activity which is prohibited under the Criminal code “falls squarely within the rubric of a public policy violation.” The National Alliance’s activities also violated the
values set out in the Charter of Rights, provincial human rights legislation as well as the International Conventions which Canada has signed all of which promote the equality and the dignity of the person while prohibiting discrimination based on various grounds, including race and ethnic origin.
Usually, when a bequest is declared contrary to public policy or illegal, the bequest is made for a specific purpose. In general, a beneficiary cannot “stand for” something. To use Justice Grant’s example, a bequest to a drug dealer is not contrary to public policy or illegal, because a drug dealer does not “stand for” dealing drugs.
Here, however, the National Alliance’s founding documents sufficiently evinced its purposes, which were to “promote white supremacy through the dissemination of propaganda which incites hatred of various identifiable groups which they deem to be non-white and therefore unworthy.” This made the bequest both illegal and contrary to public policy and therefore void.
McCorkill v Streed is an interesting case. Had this case been decided in the United States, it may have gone the other way. Hate speech is not a crime in the United States, and the United States’ constitutional protection of freedom of expression is not limited by a provision like Canada’s Section 1 of the Charter of Rights and Freedoms. Though not binding in Ontario, McCorkill v Streed may stand for the uniquely Canadian proposition that a testator is not free to leave bequests to an organization where the evidence establishes that their purpose is hateful.
“Are they going to dig him up?” asked the daughter of World War II veteran Fred Antflick, upon being informed that a dozen surveyor stakes had been put in the ground of the Jewish cemetery where her father is buried.
The surveyor stakes were placed in the ground in the cemetery for what was meant to be a short period of time in the fall, inside the area that divides Mount Sinai Memorial Park from the Downsview Lands. In this case, the stakes were used to determine the correct property line between the cemetery and land belonging to the Canada Lands Company.
The ownership of burial plots is governed by the Funeral, Burial and Cremation Services Act, 2002. It is a common belief that you own the land where you purchase a burial plot—in fact, you only purchase “internment rights,” which means you purchase the right to be buried there. The result is that the Crown corporation was not required by law to seek permission from the owners of the plots (or their families) to place the stakes in the ground.
Upon learning of the incident, one air force veteran was quoted as saying, “if I still was in the military, they’d be in another world by now. It shows that they have no respect whatsoever. None whatsoever. To even contemplate putting a stake into a burial ground.”
The Canada Lands Company has released an apology for “any impropriety.”
“When a family member is sick, home is where they want to be. Being cared for at home is more comfortable for patients, can enhance recovery from illness or injury and reduce strain on our hospitals. These leaves provide support to caregivers so they in turn can support their loved one,” according to the Minister of Health and Long-term Care.
The Employment Standards Amendments Act (Leaves to Help Families), 2014, passed its third reading in the Ontario legislature in April, 2014. The legislation will allow caregivers to take more time off of work in order to provide care to their loved ones — without the fear of losing their job.
The new legislation adds to the already existing Family Medical Leave by creating three new job-protected leaves:
- Family Caregiver Leave: up to eight weeks of unpaid, job-protected leave for employees to provide care or support to a family member with a serious medical condition.
- Critically Ill Child Care Leave: up to 37 weeks of unpaid, job-protected leave to provide care to a critically ill child.
- Crime-Related Child Death or Disappearance Leave: up to 52 weeks of unpaid, job-protected leave for parents of a missing child and up to 104 weeks of unpaid, job-protected leave for parents of a child who has died as a result of a crime.
The legislation does not, however, ensure that caregivers will be paid while they have time off of work to care for their loved ones.
World renown painter, Lucian Freud is well known for his incredible talents and unique portraits including those of the Queen and Kate Moss. Freud is acknowledged as one of the greatest painters of the twentieth century. Interestingly, Freud was the son of architect Ernst Freud and the grandson of psychoanalysis founder Sigmund Freud.
Lucian Freud passed away in 2011 at the age of 88. When he died he left an estate worth approximately £95.9m. At the present time, Freud’s estate is in the midst of a heated legal battle.
The son of the late artist has launched a legal battle to claim a share of his late father’s multi-million pound fortune. A secret trust fund set up by the painter will be examined in England’s High Court, as his son is contesting the legality of the trust.
In Freud’s last will and testament he bequeathed £2.5 and his west London home to his assistant. After legacies and tax, the remaining £42 million was left to a secret trust which is to be controlled by Freud’s solicitor and one of Freud’s daughters.
Freud was married twice and is known to have at least 14 children, however, his will states no instructions as to how his remaining 13 children are to benefit from his estate.
Freud’s son is challenging the legality of the arrangement and claims that his father may not have left specific instructions to the trustees, and therefore, it is his position that £42m was never the subject of a will.
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Election season in Ontario has resulted in a proposal for a province wide pension plan to supplement the Canada Pension Plan (“CPP”).
The Liberals’ proposal for The Ontario Retirement Pension Plan (“ORPP”) involves employee contributions of 1.9% of their annual income up to $90,000.00 a year, which will be matched by their employers. It is specifically targeted to meet the needs of middle-income earners who are struggling to save enough for retirement and it is proposed to launch in 2017.
Just like the CPP, employees may start collecting benefits at age 65. However, unlike the CPP, not all Ontarians are eligible. The ORPP will be mandatory for those working in Ontario except for the self-employed, employees who are already enrolled in a private work pension plan, and employees working in federally regulated industries.
According to the CBC’s reporting of the Liberals’ proposal, based on projected figures of 40 years of working contributions,
- A worker who earned $45,000 over that period would collect $17,090 annually (including $10,680 from CPP).
- A worker who earned $70,000 over that period would collect $22,430 ($12,460 from CPP).
- A worker who earned $90,000 over that period would collect $25,275 ($12,460 from CPP).
Of course, not every one thinks well of this new proposal and only time will tell if this new proposal will become the first of its kind in Canada.
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A deed is a legally valid and enforceable agreement. The term “poll” is a reference to the traditional polling, or straightening of the edges, of deeds signed by a single person, in contrast to an indenture, being a deed signed by two people or more that is indented.
Similar to a contract, a deed poll is legally binding and commits a party to fulfill its terms. However, a deed poll binds only one person, instead of multiple parties to a contract. Only the one party and a witness are required to sign the deed poll in order for it to be a binding legal document. Since no consideration will be provided pursuant to the terms of the Deed Poll, such a document is ordinarily sealed.
In the context of estates, a deed poll may operate to prevent an inconsistent disposition of property by way of estoppel by deed. In effect, a deed poll may give effect to a disposition of property in a way that is not in accordance with other aspects of an estate plan, such as the will.
Today, the use of a deed poll as an estate planning measure is rare. The instrument was most frequently recognized by English courts during the nineteenth century. The effect of a deed poll is not the disposition of property itself but, rather, the prevention by estoppel of the grantor of the deed from denying the promised property to its intended recipient, who has relied upon the promise set out in the deed poll. Courts did, however, take into account the circumstances under which the deed poll was executed and the extent to which a deed poll was relied upon by a beneficiary.
The most common present use for deed polls, however, is with respect to official changes to a person’s legal name, in which case they may also be known as deeds of change of name.
Although deed polls in estate planning appear to be a thing of the past, when one has been executed, its terms and the effect on the distribution of estate assets should be carefully considered by estate planners and administrators.
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