Tag: and

22 Nov

Encouraging Your Parents to Discuss Their Financial Matters

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Having an open conversation with your parents about their financial matters and the importance of estate planning is never an easy task. Medical studies have indicated that people who have lived through the Great Depression prefer to keep their financial affairs to themselves. This presents a challenging task for loved ones trying to discuss with their parents financial matters and particularly who is best equipped to handle their finances if they are unable or how they expect to pay for long-term care should the need arise.

The New York Times recently published an article entitled, “Talking with Depression-Era Parents About Money”. In this article, Tara Siegel Bernard, the author, suggests the different ways that adult children could broach the topic with their parents such as:

Show and Tell: “Adult children could talk about their own estate plans – a show and tell”. This forces the parent to give thought to their children’s estate plan and opens the door for the child to ask how the parents have handled their own affairs.

Parental Duty: “Appeal to their duties as parents.” 

Bring in a Pro: “Some parents may also feel more comfortable discussing their financial situation in front of a disinterested party, like a long time accountant, lawyer, or financial planner.” It appears that Ms. Bernard suggests having a disinterested party present could help the parent feel more secure, which likely would have the effect of the parent opening up about their financial matters. This sounds like a good idea; however, a word of caution, this suggestion also could lead to estate litigation, as arguments of undue influence could be advanced in the circumstances.

Timing: “Make sure you choose a good time and place to bring up the topic”. Obviously, having this sort of discussion at the family holiday party is not a good idea.  

Thank you for reading and have a good day.

Rick Bickhram – Click here for more information on Rick Bickhram.

 

14 Sep

Challenging Decisions of the Consent and Capacity Board

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The basic principle governing health care treatment of patients is that treatments should not be administered in the absence of the patient’s consent, or where the patient is incapable the patient’s substitute decision-maker: section 10 of Ontario’s Health Care Consent Act ("HCCA").  The onus is on the health practitioner to decide whether the patient is capable and can give consent.  The range of persons within the HCCA’s s. 2(1) definition of "health practitioner" is broad. 

A person who wishes to dispute the finding of incapacity by the health practitioner may apply under section 32(1) of the HCCA to the Consent and Capacity Board (the "Board") for a review of the health practitioner’s finding that a person is incapable with respect to the treatment.  The Board may confirm the health practitioner’s finding or may determine that person is capable.  Section 80 of the HCCA allows a party to appeal Board decisions to the Superior Court.  The court may exercise all the Board’s powers, substitute its opinion for that of the health practitioner’s, or refer the matter back to the Board with directions for rehearing in whole or in part.     

The standard of review for the Board’s decision is correctness with respect to its interpretation of the law, and reasonableness with respect to its application of the law to the facts, since the issue of incapacity is a mixed question of fact and law: Starson v. Swayze, 2003 SCC 32 (CanLII), [2003] 1 S.C.R. 722.  Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts.  This means that the Board’s conclusion will be upheld provided it is among the range of conclusions that could reasonably have been reached on the law and evidence. 

Courts tend to carefully review appeals from Board findings of incapacity.  In Starson v. Swayze, the Supreme Court upheld the trial judge’s overturning the Board’s finding of incapacity.  The trial judge examined the extent to which the conclusions drawn by the Board were supported by the evidence from the examination, and concluded they were not reasonably so.  In Re Koch, the Board’s finding of incapacity was overturned.  Again, the court found that the conclusions of the Board were not supported by the evidence from the examination.  Also, the examination itself was insufficiently probing to support the conclusions drawn.  In Hillier v. Milojevic, 2010 ONSC 4514 (CanLII), the court allowed an appeal of the Board’s finding of incapacity where the hearing had not been conducted in an procedurally appropriate manner.  The allegedly incapable person had not been given sufficient time to answer questions, had been questioned rapidly in a manner that disrupted his train of thought, and had to attend the hearing without his glasses and a computer on which he relied for organization.  The court returned the matter to the Board with directions to conduct another hearing with the assistance of an amicus curaie.

Have a great day,

Christopher M.B. Graham – Click here for more information on Chris Graham.

 

 

 

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02 Sep

Elder Abuse

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In an aging society, our elderly can easily fall prey to predators looking to exploit them. Elder abuse can take many different forms: physical, psychological or financial abuse, or simply neglect.

I read an article yesterday about Huguette Clark, the 104 year old heiress whose wealth is estimated at half a billion dollars. During her lifetime, Clark made generous gifts towards those who cared for her. For instance, it is reported that Clark gifted $10 million dollars to her social secretary. 

It is reported that Clark’s wealth is being managed by her lawyer and her accountant. 

A former paralegal who worked for Clark’s attorney, has now blown the whistle on what she alleges is improper behavior by Clark’s attorney and accountant. According to reports, it is alleged that they “drafted a will that would have left money to [one of them], trying repeatedly to persuade her to sign it — then joked about their client and cursed her behind her back when she would not sign the will.” It is also reported that her lawyer allegedly solicited from Clark $1.5 million dollars to build a security system for a community where his daughters and their families live. In addition he allegedly sold a Stradivarius violin for $6 million dollars and a Renoir painting for $23.5 million. 

A criminal investigation has now been launched by the Manhattan district attorney, who has the Elder Abuse Unit of the New York County District Attorney’s Office looking into the handling of Clark’s finances.

It bears repeating that the complaints at this stage are unproven allegations. Nonetheless, the mere thought that this could happen provides us with a dreadful reminder of what the elderly face in our society today.

 

Thank you for reading,

 

Rick Bickhram – Click here for more information on Rick Bickhram.

 

31 Aug

Competent Children Don’t Need an Inheritance

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Chinese real-estate tycoon, Yu Pengnian, announced this past April that he was donating the last $500 million of his fortune to his charitable foundation on philanthropy. He was asked by a reporter, whether his children were angry about his donations and responded by stating: “They didn’t oppose this idea, at least not in public.”

|It is not uncommon for billionaires to donate their fortune. For instance, Warren Buffet and Bill Gates started a campaign called "The Giving Pledge." At that time, they had four billionaires pledge to give away half of their fortune upon their death.  Now there are 40. My colleague, Nadia Harasymowycz, recently blogged on this topic, which can be found here: Leaving it all to Charity – A Good Plan or an Estate Litigator’s dream.

The idea of giving away your fortune is a strong shift from the traditional idea of passing down your wealth, from generation to generation. Why this switch in estate planning? Yu stated: “If my children are competent, they don’t need my money. If they’re not, leaving them a lot of money is only doing them harm.”

Yu’s message to wealthy families put simply: “Too many wealthy parents focus on preventing their children from failing. But in doing so, they also deprive their children of the joys of self-made success.”

Thank you for reading,

Rick Bickhram – Click here for more information on Rick Bickhram.


30 Aug

She Killed Him For His Batman Collection

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Over the weekend, I was reading some international publications, when I came across a rather interesting article in The New York Times about Ben Novack Jr., and his Batman collection.  Novack is said to have the second largest, Batman themed collection, in the country.  To give you an idea of how big this collection is, Novack is said to have a full-size replica of the Batmobile!

About one year ago, Novack was found murdered at a hotel in New York, where he was staying with his wife.  The hotel records showed that no one had entered the hotel room with a key before the killing of Novack.  Novack’s wife reported to the police that "she went down to breakfast about 7 a.m., leaving him asleep. When she returned 40 minutes later, she said, she found him bound and bloody on the floor."  Given the hotel records, and other circumstantial evidence, the police did not believe Novack’s wife. 

It is reported that her goal was to seize control of Novack’s fortune.  How much was his estate worth? $5-6 million dollars! 

Earlier this year in February, a Florida judge named Ms. Novack as the personal representative of Novack’s estate before reversing the decision three days later. He ordered her to post a high bond before becoming personal representative, but Novack’s wife never posted the bond.

The article does not mention whether Ms. Novack was convicted with the murder of her husband, however, in Ontario the Forfeiture Rule is well founded law for beneficiaries who perpetrate a criminal act against the testator.  The Forfeiture Rule was quoted in Re Benson Estate,  "A sane person who commits murder is debarred by public policy from taking any benefit under the Will or intestacy of his victim."

Thank you for reading,

Rick Bickhram – Click here for more information on Rick Bickhram.
 

19 Aug

Deceased User Policies: Twitter and Facebook

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Social Media is not a fad and is fundamentally changing the ways we interact and communicate with others.  Two of the more popular social networking websites, Twitter and Facebook, recently implemented policies that set out guidelines regarding a user’s account once they have died.

Under Twitter’s policy, a person can either request that the deceased user’s account be removed entirely or receive an archive of all the deceased user’s tweets offline once they have provided Twitter with the following information:

1.                  Your full name, contact information (including e-mail address), and your relationship to the deceased user; 

 2.                  The username of the Twitter account, or a link to the profile page of the Twitter account.  

 3.                  A link to a public obituary or news article.

By comparison, Facebook provides two options: either removing the deceased’s account, or "memorializing" it.

Memorializing a person’s account “means the account lives on in Facebook’s system, and other Facebook members can interact with the deceased member’s wall. What’s interesting about what Facebook put into place, compared to Twitter, is that there’s still a great deal of emphasis put on privacy and what can be done with the information that user has posted to the service. For instance, only that user’s friends can still visit the profile or find it in Facebook’s public search tool. And Facebook goes so far as to remove all status updates and contact information.”

It is hard to imagine that Facebook and Twitter will remain an important part of our lives many years from now, but Facebook has grown from 300 million to 500 million users in less than a year, with few signs of that slowing down. This is an indication that “policies about a user’s death can end up being just as important as those you agree to when you first sign up.”

Thank you for reading, and have a great day.
 

Rick Bickhram – Click here for more information on Rick Bickhram.

 

18 Aug

Michael Jackson Estate Litigation Continued…

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Bridging the gap between principle and common sense can be tough for parties involved in litigation.  

World renowned pop artist, Michael Jackson, died over one year ago on June 25, 2009.  As with most estate disputes, they tend to be costly both emotionally and financially, and this tends to be the focus of everyone watching, despite all the good deeds that one may have accomplished during his or her lifetime.

Over the past year, we have heard of issues surrounding the Guardianship of Michael’s children, his mother Katherine Jackson’s fight to be appointed as the executor for Michael’s estate, and illegitimate children coming out of the woodwork claiming to be dependants of Michael.

Most recently, in an entertainment column published by TVNZ, Michael’s father, Joe Jackson, has decided to appeal a court decision indicating that he had no right to object to the executors of his son’s will.  

Joe Jackson initially accused the executors of Michael’s estate, John Branca and John McClain, of fraud and embezzlement.  As Joe Jackson was not a beneficiary of Michael’s estate, the court held that he was unable to object to the executors of his son’s will.

Joe Jackson’s lawyers now argue that Joe was financially dependent on Michael and should therefore have a right to object to the appointment of the executors who control the financial decisions of Michael’s estate.  These claims of dependency are being refuted by the lawyer for Michael’s children.

As I indicated above, bridging the gap between principle and common sense can be tough for parties involved in litigation.  Is this the legacy that Michael Jackson would have wanted to leave when he died?

Thank you for reading,

Rick Bickhram – Click here for more information on Rick Bickhram.

 

16 Aug

Online Funerals

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Computers have become a staple in the lives of human beings, such that it is difficult to imagine that there was a point in time when they did not exist. In an effort to remain current with technology, some funeral homes have incorporated the use of technology in how loved ones say their final farewells.

The Toronto Star  recently featured an article about a funeral home that allows distant loved ones to say goodbye by watching the funeral service being streamed over the internet. It sounds eerie, and certainly, there will always be concerns about internet security, but for Brantford trooper Larry Zuidema Rudd, who died when a roadside bomb exploded, having an online funeral service allowed more then 40 of his colleagues in Afghanistan to pay their final respects from their distant base.

The so-called “sympathy casts,” have been growing in popularity. Helen Zuidema, the mother of our fallen solider Zuidema Rudd, says that the sympathy casts have “brought our family together without them having to come here … they’re still talking about it months later.” Zuidema still scans the funeral site, along with its many photos, tributes and messages, about once a week.  “It brings back a lot of memories that you kind of forget when you are grieving,” says Zuidema.

For funeral homes, embracing the advances of technology has created an appreciation amongst loved ones, faraway friends and relatives, who can now be included in saying their final farewell.

25 Jun

How has the G20 impacted your professional and non-professional life?

Hull & Hull LLP Estate & Trust Tags: , , , , , , , , , , , 0 Comments

It’s Friday, June 25, 2010 and as a result of the G20 summit, I am blogging remotely – from the comfort of my own home. As you know, the leaders from the G20 countries are meeting in Toronto this year to discuss key issues in the global economy.

The road leading to the summit has been a rocky one. I believe the words "fake lake" pretty much sums it up.

And you should be aware that there are traffic restrictions in effect today. For a list of the major highways with partial and full closures today through to Sunday, click here.

Even the judiciary has been impacted! If you are practicing in the area of estates, you are well aware that there were no judges sitting yesterday and there are none sitting today. My colleagues, Natalia Angelini and Paul Trudelle, noted that this was a topic of discussion at the recent Dinner with the Honourable Estates List Judges. 

Well, it’s not just the courts that are closed today. In the Globe and Mail‘s ‘local view’ blog, which is dedicated to keeping us up to date on the "disruptions" and "drama" that Toronto has experienced in the lead up to the G20 summit, Siri Agrell informs us things have become personal. What could be so personal for Torontonians? Apparently the LCBO announced that it would close 7 of their stores.

If you’ve noticed that your local LCBO store is closed today and you need to stalk up for that party you’re holding tomorrow evening (perhaps to celebrate recovery and new beginnings – this year’s G20 theme), click here.

Enjoy your weekend!

Kathryn Pilkington – Click here for more information on Kathryn Pilkington.

13 Apr

Dementia and the N.F.L.

Hull & Hull LLP Capacity, Estate & Trust, Litigation Tags: , , , , , , , , , , , 0 Comments

 

As an avid sports fan, I enjoy watching the physical nature of most sports. Recently, our media has reported on the severity of head injuries, which are caused by “head shots”, and the need to implement rules in professional sports to prevent catastrophic head injuries from happening.

Alan Schwarz, an author for the New York Times, recently wrote an article about a loophole in the California workers compensation system that allows retired professional athletes to file a claim for injuries sustained decades before, particularly retired N.F.L. players.  

Schwarz states, “Most states require workers’ compensation claims to be filed within one to five years of the injury; California’s statute of limitations does not begin until the employer formally advises the injured worker of his or her right to workers’ compensation.” Also, California’s workers compensation statutes “require a professional athlete to have played only one game of his or her career within state borders to file a full claim for cumulative injuries.” The logical policy reason behind this legislation is to protect outside workers who temporarily pass through the state, like truckers or flight attendants.

As you can imagine, this loophole has opened the flood gates for retired athletes to file their workers compensation claim. In fact Schwarz states that “about 700 former N.F.L. players are pursuing cases in California, according to state records, with most of them in line to receive routine lump-sum settlements of about $100,000 to $200,000.”

What makes Schwarz’s article interesting is the claim filed by Ralph Wenzel. Wenzel has filed a claim arguing that his dementia at 67 years of age is related to his career as an N.F.L. lineman between the years of 1966 to 1973. The theory of Wenzel’s case is that “hitting your head over and over on the football field causes certain conditions.” In fact, researchers at “at the University of North Carolina have recently linked pro football careers and concussions with heightened rates of depression, mental decline and Alzheimer’s disease.” 

As we continue to see a rise in those who are diagnosed with dementia and Alzheimer’s, I think it will be interesting to see how the sporting industry reacts to this disease, particularly, the rules each professional league implements to eliminate “head shots.”

Thank you for reading.

Rick Bickhram-Click here for more information on Rick Bickhram

 

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