Tag: Bickhram

07 Feb

Dual Co-habitation and Claims for Support

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Can a deceased person, immediately before his or her death, be found to have been in a common law spousal relationship with two persons, each of whom could assert a claim for support as a dependant?  This was the interesting question recently considered on a motion for interim support under Ontario’s Succession Law Reform Act ("SLRA").

In Blair v. Cooke, the Applicant commenced an Application against the Estate seeking dependant support, and subsequently brought a motion seeking interim support from the estate.   In support of her application, the Applicant filed an extensive affidavit describing the history of her relationship with the Deceased and argued that she is a dependant spouse of the Deceased, thus, entitled to support under the provisions of the SLRA.  The court was also provided with numerous affidavits of friends and acquaintances confirming the Applicant’s 11-year relationship with the Deceased.

The Respondent is the estate trustee of the estate for the Deceased, and also argues that she is the Deceased’s common law spouse.  It is important to clarify that the Respondent does not make a claim for dependant support, but rather opposes the Applicant’s application.  In doing so, the Respondent filed her own affidavit and the affidavit of friends and acquaintances, which would corroborate that she was the Deceased’s common law spouse.  The Respondent argued the court should not make any finding of entitlement to support for the Applicant, because doing so would preclude her from claiming support (if she decided to make a claim at a later date) or claiming that she was in fact the “spouse” of the deceased. 

In considering whether or not a person could have two spouses for the purpose of making a dependant support claim, the court considered section 57 of the SLRA, more particularly the following definitions:

1.      “Dependent” can be a  “spouse of the deceased…to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death…”. 

2.      “Spousal” is further defined under the SLRA as “either of two persons who…are not married to each other and have co-habited…continuously for a period of not less than three years”; and

3.       “Co-habit” is defined to mean living together “in a conjugal relationship”.

The “twist” that I found interesting in this case, was that the court found that there was enough evidence to conclude that the deceased may have co-habited with two different women, in different homes.  The court stated that they did not have to determine that one party was a spouse and the other was not for purposes of awarding interim support; in fact both women could qualify.  The Applicant was awarded interim support.

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

 

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.

 

03 Sep

Tips on Keeping Funeral Costs Reasonable

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In a prior blog by Paul Trudelle, a partner at Hull & Hull LLP, he explained the decision of Rooney Estate v. Stewart Estate (2007). In Rooney Estate v. Stewart Estate, the court highlighted some of the roles the Estate Trustee and the estate solicitor and held responsible for including, among other things, arranging for the funeral and disposition of remains.

Arranging for the funeral and disposition of remains can be burdensome, especially if the estate trustee was related to the Deceased. This task becomes even more daunting when they are dealing with the expenses of a funeral in which case, fewer are in the mood to bargain. Regrettably, this leads many spending more then they have to. 

I recently came across an interesting article, How to Cut Funeral Costs, which was published in The Wall Street Journal. Under this article, the author provides us with a few tips on how to keep costs reasonable when arranging a funeral service:

 

1.                  Learn your Rights: Funeral homes are prohibited from charging certain fees, and there may be a requirement that compels funeral homes to provide a written fee list upon request

2.                  Pre-plan: “Have a conversation with your family about what you want and what’s going to be meaningful to them.”

3.                  Consider pre-owned plots: Purchasing a pre-owned plot has always been a common practice; but the purchaser has moved out of the area where his plot is purchased. 

4.                  Compare Funeral Home Prices: it’s worthwhile to shop around. Prices vary from one home to another

Thank you for reading,

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

 

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.
 

20 Aug

The Importance of Having a Will

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For my final blog for the week, I want to discuss an article recently featured in Forbes.com, which considers the importance of having a Will. 

If an individual dies without a Will, he is said to have died intestate. When a person dies intestate, their assets are distributed pursuant to the intestate provisions contained in the Succession Law Reform Act.

If a person dies with a Will, he is said to have died testate. In such circumstances, the deceased’s assets are distributed in accordance with his last wishes as set out under his Last Will and Testament.

Under Glenn Curtis’s article, “Why You Should Draft a Will” he sets out the benefits of having a Will, such as:

1.                  Limiting family disputes;

2.                  Wills can outline personal preferences; and

3.                  Wills make quantifying and distributing assets easier.

By comparison, Curtis argues that not having a Will could place significant burdens on loved ones, such as it could take a very long time to compile an accurate list of an individual’s assets; it could also take a prolonged period of time to identify and locate potential beneficiaries. “Unfortunately, until this process is complete, money may not be distributed, even to legitimate and known beneficiaries.”

Curtis concludes his article with some wise words: “Individuals seeking to prevent family infighting, and who want to ensure that their spouses, children and other relatives are properly taken care of after they die would be wise to consider drafting a will.”

Thank you for reading, and I hope you have a great weekend,

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.

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