Tag: blogs

30 Dec

Blog In Review

Hull & Hull LLP General Interest Tags: , , , 0 Comments

 In this our very last blog of the year,
we thank all our readers the far and the near.
The privilege of writing our blogs for you all,
has been all of ours and we hope that you call
or email or write so that we may hear
what you wish us to cover for the coming new year.

It is a great way to get knowledge to you,
and to tell you a little about all that we do.
We have blogged about wills and estates and trustees,
on guardians, attorneys, their duties and fees.
We want to assist the entire year through,
to inform and amuse, cause a chuckle or two.

So keep tuning in and follow along,
we will highlight the law, what’s gone right and gone wrong.
We will tell you the things our courts are construing,
and you can tell us how we have been doing.

Best wishes for a promising and prosperous 2011.

 

Sharon Davis – Click here for more information on Sharon Davis.

26 Nov

Antle v. The Queen – Appeal Dismissed by the Federal Court of Appeal

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

The case of Antle v The Queen, 2009 TCC 465, 2010 FCA 280 (Can LII) (“Antle”) has been a much talked about decision. The appeal to the Federal Court of Appeal was dismissed just recently, on October 21, 2010. 

Antle deals with the legality of a “capital property step-up strategy” whereby capital property with an accumulated gain (shares in a company) was shifted from the husband to a Barbados spousal trust. The trust sold the property to the beneficiary wife in exchange for a promissory note. The wife then sold the property to a third party purchaser and used the proceeds to pay off the promissory note. The trust distributed the funds to the wife as beneficiary, after which the trust was dissolved.

This scheme was apparently designed to result in no tax because there was no capital gain taxable in Canada, as there would have been had the husband sold the capital property directly to the third party. The capital gain arose in the trust in Barbados where there was no tax on capital gains.

While one might say that the case deals with the residency of the trust, the penultimate issue was whether a trust was created at all in the circumstances.

In order for a trust to be valid, there must be three certainties, namely, certainty of intention to create a trust, certainty in the subject matter of the trust, and certainty in the objects of the trust. 

In this case, the Minister focused on the lack of certainty of intention to create the trust and the lack of certainty in the subject matter of the trust. The decision of the Minister was appealed to the Tax Court of Canada (“Tax Court Judge”). The decision of the Tax Court Judge was then appealed to the Federal Court of Appeal.

The Tax Court Judge found that there was no certainty of intention. The husband never intended to lose control of the shares or the money resulting from the sale and never intended to create a trust. The Tax Court Judge found that the husband’s actions and the surrounding circumstances could not support a conclusion that signing the Trust Deed reflected any true intention to settle shares in a discretionary trust, no matter how clear the language in the Trust Deed itself.  It simply did not reflect his intentions.

The Tax Court Judge also found that there was no certainty of subject matter. The shares purportedly settled on the trust were in the possession of an unrelated party who claimed a beneficial interest in them. The unrelated party was paid out an amount of money on the final sale to the third party purchaser. The husband later successfully sued the unrelated party and recouped $1.38 million. The husband thereby retained an interest in the shares purportedly settled on the trust. If the husband transferred anything to the trustee, the Court found that it was not his full interest in the shares because there was an element of his ownership in the shares that did not pass. This created a lack of certainty of subject matter.

The Tax Court Judge also found that the trust was never constituted. It never came into existence because the shares were never transferred to the trust and were never in possession of the trustee. The shares remained in Canada throughout and no money ever reached the trustee. The timing and execution were such that the intended steps were not carried out sequentially so as to properly constitute the trust.

Notwithstanding the above findings, the Tax Court Judge determined that the above circumstance was not a sham, as also alleged by the Minister, as the transactions themselves were not disguised.

In an interesting twist, the Federal Court of Appeal concluded “that the Tax Court judge was bound to hold that the Trust was a sham based on the findings that he made”, and dismissed the appeal.

Enjoy the weekend,

Craig R. Vander Zee – Click here for more information on Craig Vander Zee.

25 Nov

So You Wish To Vary A Trust

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

Those wishing to vary a trust in Ontario, can look to the Variation of Trusts Act (R.S.O. 1990, c. V.1) (Act) for the authority to do so. Although the Act is surprisingly only one section in length, do not let the length fool you.

Essentially, the Act permits the Court to approve a variation of a trust under a will, settlement or other disposition on behalf of minor, unascertained, unborn or contingent beneficiaries if the variation, in the words of the Act, “appears to be for the benefit” of those persons.

 

While relying on the Act for jurisdiction to make a variation, there are many things to consider in pursuing a variation such as the procedure to follow and the criteria to meet in order to have the variation approved. 

 

In the well-known case of R v. Irving, (1975), 11 O.R. (2d) 442 (H.C.), the Court set out three criteria to consider in determining whether to approve a variation, namely:

(i) does the variation keep alive the basic intention of the testator or settler?, (ii) does the variation benefit those for whom the Court is asked to consent?, and (iii) whether a prudent adult motivated by intelligent self-interest and sustained consideration of the expectancies and risks of the variation, would likely accept it?

 

There are a number of cases that have considered these criteria; too many to go into in this blog. Suffice it to say that the Act does provide an answer to the question as to whether one can vary a trust, but the answer is only a partial one as the Court will also consider criteria needed to be met in determining whether to approve a variation.

 

Thanks for reading,

 

Craig R. Vander Zee – Click here for more information on Craig Vander Zee.

20 Apr

On Blogging and Lawyers (Part 2 of 2)

Hull & Hull LLP General Interest Tags: , , , , , 0 Comments

Yesterday I blogged about the usefulness of blogs for lawyers. Today I will provide some specifics and recommend a few blogs to you. 

The advantage of blogs as a publishing vehicle is the access to information in real time. The latest news and topics are always available and you can get your own information out to the legal community and to potential clients without having to wait for the printing press. The pressure is a bit less as well because on some level blogs are meant to entertain, and no one expects them to be perfect – blogging is, after all, immediate media

One well-respected Canadian law blog that has been around since 2005 and has many regular contributors is Slaw.ca. Slaw provides a variety of high-quality information relevant to the legal profession and editors make sure that content is appropriate for its intended audience, comprised mostly of lawyers, law librarians, legal academics and students – i.e. a general level of legal information is assumed. Note that you will still see this caveat, which illustrates exactly why lawyers are often hesitant to blog: “But please note: we do not offer legal advice, even in the most vague terms.” 

Another great blog you should check out is practicePRO’s avoid a claim blog with a tagline of “Where claims happen, Why claims happen, And what you can do to avoid a claim happening to you”. Now that is a blog we should all be reading on a regular basis! 

Enough about information and risk – what about good old fashioned business? Sometimes lawyers can use a little advice in this area also. Check out this Canadian legal marketing blog  to pick up a few hints and tips so you can not only be smart, connected and well-informed, but be able to pay to pay the bills while doing so.

Now you are ready to go out there and blog!

Sharon Davis – Click here for more information on Sharon Davis.

19 Apr

On Blogging and Lawyers (Part 1 of 2)

Hull & Hull LLP General Interest Tags: , , , , , 0 Comments

Blogging has certainly become popular in the last several years as an important source of information and communication. So much so that even lawyers have jumped on the bandwagon. And who would have thought? Being the risk-averse creatures we are, you would not expect publishing our musings for the world to read to be a natural fit; after all, law school is spent teaching you how to avoid risk or, perhaps, how to remedy the consequences of risks taken by your clients. And so, lawyers were slow to wade into the vast sea of bloggers. 

But is blogging so different from anything else we do? Writing is a large part of a lawyer’s profession. Like any profession, education and the sharing of information with colleagues and the public in general are required not only to ensure you keep on the cutting edge of the law but also for marketing purposes. 

Today, the World Wide Web is as acceptable as the golf course for legitimate networking and collegial interaction. You’ll also find that lawyers are now increasingly found on LinkedIn (the professional’s version of Facebook or an electronic rolodex if you will). You can find me on there along with many of my Hull & Hull LLP colleagues. It is nice to know that whether you like to wear golf shoes or slippers while networking, the choice is yours. 

There are some excellent law blogs out there and if you’d like to see just how many lawyers are blogging as proof of my claim, check out  this website  where you will find blogs on almost every legal topic imaginable (that was a challenge to think up one that isn’t covered yet)!

Stay tuned for tomorrow’s blog when I will point you to some interesting blogs you may find of use including a blog specifically designed to help lawyers avoid risk. Very clever…..

Happy Monday!

Sharon Davis – Click here for more information on Sharon Davis.

06 Aug

Upcoming ‘Health Series’ of Blogs

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

Hull & Hull LLP will be posting our second ‘health series’ of blogs starting on Monday August 10th.  The series will run every Monday thereafter in the month of August, for a total of four blogs.  The following subjects will be featured:

  • Polypharmacy and Seniors
  • Multiple Attorneys for Personal Care
  • Traumatic Brain Injury
  • Palliative Care – an Overview

We hope this series proves both useful and informative.  Please feel free to contact us at nonley@hullandhull.com with your feedback.

15 May

D-I-Y Funerals

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

I recently came across an article which suggests that Do-It-Yourself (D-I-Y) funerals are an emerging trend in the United States. The article charts the growth of the home funeral movement in the last two decades.

A D-I-Y home funeral can mean many things. A family member may want to build the casket, hold a visitation at home, and they may even want to prepare the body for viewing. The D-I-Y movement provides information on the different state laws and guides family members in the completion of the related forms.

Fuelled by economic concerns, an increased desire to personalized funerals, and the ecology movement which discourages the use of embalming chemicals, some families are investigating this option. 

Comparing the D-I-Y home funeral movement to the home birth movement, some advocates suggest that professional services disassociate family members from the grieving process and a return to a home funeral results in a more meaningful experience.

Not sold on the merits of preparing your loved one’s body for viewing and burial? Max Alexander has written a touching piece on his experience with a home funeral and a regular funeral. Alexander’s father and father–in-law died in the same month. While his father had a traditional funeral, his father-in-law had a home funeral. Despite all the paperwork involved, Alexander favours the home funeral approach.

In Ontario, funerals are heavily regulated but it is not illegal to prepare a family member for burial and cremation without the assistance of a funeral home as long as you are in compliance with all relevant regulations. However, in order to comply with all regulations and obtain the proper paperwork, funeral directors are an invaluable source. Further, funeral homes are adapting to the requests of families by accepting homemade caskets and preparing bodies for viewings held at a private home.

And remember that the D-I-Y funeral movement does not include D-I-Y burials and cremations; some things have to be left to the professionals.

Enjoy your (long) weekend!

Diane Vieira

14 May

Powers of Attorney and Real Estate Fraud

Hull & Hull LLP Power of Attorney Tags: , , , , , 0 Comments

To assist real estate lawyers in identifying forged powers of attorney and fraudulent real estate transactions, the Law Society of Upper Canada has provided real estate lawyers with a set of new guidelines and procedures for powers of attorney and real estate transactions.

In order to address the issue of fraudulent transfers of title and mortgages, new registration requirements were implemented last year necessitating law statements by individuals registering real estate documents under the authority of a power of attorney. Paul Trudelle’s previous blog of last year describes the new registration requirements.

The new registration requirement and Law Society guidelines have in part been necessitated by the case of Revickzy v Melekinia. Natalia Angelini’s blog sets out the background of the case and comments on the possible impact on a solicitor’s duties.

The Law Society guidelines include the following suggestions:

  • To the extent possible, lawyers avoid the use of  Powers of Attorneys in real estate transactions;
  • That when a Power of Attorney is required and a pre-existing Power of Attorney does not exist, the lawyer should prepare the Power of Attorney themselves, meet with the donor and make diligent inquiries to establish that the donor’s identity;
  • That lawyers for all parties should review Power of Attorney to determine that it is in compliance with legislation;
  • That lawyers should use their best efforts to register the Power of Attorney on title and provide a copy of the registered Power of Attorney to the other side; and
  • Lawyers comply with the Law Society client identification and verification requirements.

For more information, read Jonathan Morse’s blogs on mortgage fraud and how British Columbia is dealing with the issue.

 

Hopefully, in adopting these practices lawyers can assist in recognizing fraudulent real estate transactions.

 

Thanks for Reading,

 

Diane Vieira

25 Aug

Finding Legal Information Online

Hull & Hull LLP New Media Observations Tags: , , , , 0 Comments

An abundance of legal information is available online and a new customized search engine that searches for content from law firms has become available. We often begin a search for online information by searching Google or a similar general search engine. Fee Fie Foe Firm is a Canadian law firm search engine that searches content from law firm sites. It allows you to search for articles, newsletters, bulletins, case commentaries, and other legal information produced by law firms in five jurisdictions.

This research tools joins two other free services, Lexology and Mondaq as a way to access publications from multiple law firms in a simplified way. Both these websites provide notification of new commentaries released by law firms by jurisdiction and topic in one daily email to the subscriber.

The growing sophistication of search engines highlights how much easier it has become to find specific information online. Last week, the federal Privacy Commissioner, Jennifer Stoddart addressed reporters at a meeting of the Canadian Bar Association about her office’s concerns that private information contained in federal tribunal rulings is being spread through the internet and suggested the possibility of anonymizing federal tribunal rulings. She promised to revisit the issue in October when the Privacy Commissioner releases their report on the Privacy Act.

Thanks for reading,

 

Diane Vieira

10 Jun

OBA Trusts and Estates Section Executive

Hull & Hull LLP Hull on Estates, Litigation Tags: , , , , 0 Comments

In yesterday’s blog, I mentioned that the election of the Ontario Bar Association (OBA), Trusts and Estates Section Executive for the year 2008-2009 was confirmed at the Sections’ year end dinner on May 27, 2008.

Kimberly Whaley is the incoming Chair of the Executive with Suzana Popovic-Montag as Vice-Chair. The balance of the slate is as follows:

Past-Chair: Jordan Atin
Secretary: Craig Vander Zee

Members-at-Large: Ann Elise Alexander, Robert Coates, Vincent De Angelis, Shael Eisen, Ed Esposto, Jan Goddard, Eric Hoffstein, Danielle Joel, Sean Lawler, Mitchell Leitman, Helena Likwornik, Jane Martin, Joanna Ringrose, Liza Sheard, Susan Stamm, Dina Stigas, Sender Tator, Mary Wahbi, Laura West and Melanie Yach.

I look forward to again working on the Executive and having a successful year.

Before turning the page on this past year, though, I would like to sincerely thank Jordan Atin for all of his efforts, hard work and counsel as the Chair of the Executive.

Have a nice day.

Craig

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