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.
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.
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.
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
Earlier this year, the Ontario Court of Appeal considered the issue of an estate’s entitlement to the residual assets of a partnership upon the death of its sole limited partner.
Canadian Home Publishers Inc. v. Parker, 2019 ONCA 314, is a lawsuit between the general partner and the Estate Trustees of the deceased limited partner, David. Canadian Home Publishers Inc. was incorporated when Lynda and David decided to purchase Canadian House and Home magazine in 1985. Lynda and David were married at the time. The corporation was owned by Lynda as the sole general partner and by David as the sole limited partner. It was their intention that Lynda would run the company as her own business and David would make use of its tax losses.
The couple later divorced in 1991. Litigation ensued and there was a previous decision about the nature of the parties’ oral partnership agreement in the ’90s. David dies in 2012. By the time of his death, David had received over $26 million from his interest as the limited partner. The magazine itself was valued at over $50 million. Lynda, as the general partner, sought a declaration that 1) the limited partnership was dissolved upon David’s death, and 2) that David’s Estate was only entitled to a share of the profits to the date of his death and a repayment of his remaining capital contribution (i.e. that the Estate was not entitled to share in the residual value of Canadian Home Publishers).
The lower court found that 1) the limited partnership was indeed dissolved upon David’s death and 2) that David’s Estate was entitled to an equal share of the residual value of Canadian Home Publishers with Lynda. While the Court of Appeal upheld the finding that the limited partnership was dissolved on death, the second finding was overturned and the Estate was limited from any additional benefit over above its share in profits as of the date of death and a return of capital.
The Court’s analysis provides a helpful description of the differences between limited partnerships and ordinary partnerships. A limited partner is meant to be a passive investor whose exposure to liability is limited to the extent of his or her capital contribution unless otherwise provided in the Limited Partnerships Act (see paras. 20-21). A limited partner has no broader right to participate in the upside of the limited partnership, just as the limited partner has no broader obligation to suffer or contribute in the downside (para. 25).
Since we are talking about House & Home, here is a recipe from their website for pineapple honey ribs 🙂
Thanks for reading and until next time!
Ian’s questions and answers from Wednesday’s blog on various topics, including death and golfing, led me to consider another issue: people dying on a golf course.
One of my favourite scenes from my favourite movie, Caddy Shack, involves a Bishop playing the best round of golf of his life in a raging rainstorm. When asked if play should continue, greens keeper Carl Spackler (Bill Murray) advises: “I’d keep playing. I don’t think, the heavy stuff’s going to come down for quite a while.” The Bishop plays on, misses his final putt, and turns to curse the sky, whereupon he is struck by lightning. See the clip, here.
Although the Bishop lived (but renounced God), many others have not been as lucky.
According to Golfsupport.com, golfing (with 1.8 injuries per 1,000 people) is more dangerous than rugby (only 1.5 injuries per 1,000). In the U.S., golf carts are responsible for 15,000 injuries per year. 40,000 golfers seek treatment each year for injuries caused by errant golf balls and flying club heads.
Golf Digest has published a list of “The 10 Worst Ways To Die On a Golf Course”. These include:
- A man who was fatally kicked in the chest when a group of golfers lost patience with the man while he was searching for a lost ball.
- A man in Ireland who died after a rat ran up his leg, urinated and bit him while the man was searching for his ball in a ditch. The rat carried the fatal Weil’s disease.
- A man who died after slamming his club against a bench after a poor shot. The club shattered, and a piece of the club pierced his chest.
The use of artificial intelligence (“AI”) is saturating all facets of life and death. While we might often think of AI as some future product of a technologically advanced society, it is already in common use. Think of Apple’s Siri and Google Translate; both require AI in order to function.
Earlier this year, my colleague, Garrett Horrocks, blogged on a study showing the promising use of AI in detecting Alzheimer’s. This month, a recent study out from the University of Nottingham explores the use of AI in predicting premature death of middle-aged persons. The study shows promising results.
AI and Bias
While many reports are optimistic in how such predictive models can improve preventative health care, others are more cautious. A recent article from Wired raises the issue of potential bias in such AI models. The article delves into the concerns of scholars that AI might adopt and even promote bias as a result of implicit biases that already exist. Take, for example, the Amazon AI recruitment tool which was designed to review resumes of job applicants and pick the top candidates. Amazon abandoned the project after experiencing several issues, including the program explicitly discriminating against women. The program did so by penalizing candidates who graduated from women’s colleges or had the word “women’s” in their resume (e.g. “women’s chess club”).
The Wired article also raises concerns about existing biases in health care services, such as how patients of different ethnics groups are treated differently for pain with studies in the US finding that racial and ethnic minorities tend to be undertreated for pain, compared to non-Hispanic white persons. While the Wired article raises concerns about the potential biases that can be adopted and/or promoted by AI, the article also notes the potential for AI to reduce bias by focusing on objective factors affecting a person’s health.
AI and the Law
Many say that the law and lawyers are resistant to change (who still relies on faxes?). Despite any such resistance, the legal system, like everyone else, is being dragged into the world of AI, whether ready or not. Just as AI is revolutionizing health care, legal products implementing AI are being developed, with some estimating that over 100,000 jobs in the legal sector will be automated by 2036.
More importantly, however, is the ongoing need for the law to adapt to the changing world of AI. The implementation of AI in our everyday life has significant ramifications from the products recommended to us while online shopping to whether or not we might receive proper preventative health care. With the potential for ethical abuses and unintended consequences (such as discrimination), it will be interesting to see how (or if) laws and regulations develop to address these new advances in AI.
Thanks for reading!
It is that time of the year when media outlets release their “top” or “most popular” lists, like the Time 100.
I came across a rather interesting and topical list the other day called “The Most Obnoxious Celebrity Wills” by Ranker. This particular list features 24 celebrity Wills and I will excerpt some of the notable mentions here:
- Napoleon Bonaparte’s Will was first on the list. Apparently, his Will included a direction for his head to be shaved and for his hair to be divided amongst his friends.
- Harry Houdini asked his wife to hold an annual séance to contact his spirit.
- Philip Seymour Hoffman wanted his son to be raised in three different cities: New York, Chicago, and San Francisco.
- Charles Dickens gave directions for a particular dress code at his funeral.
- Fred Baur, the person who designed the Pringles can, wanted to buried in a Pringles can.
Turns out testamentary freedom is whatever you want to make of it but the enforceability of provisions like these are another matter.
Thanks for reading and Happy Holidays!
I don’t know about you, but I was a little disappointed when I discovered that one of the greatest thinkers of our time – Stephen Hawking – dismissed the notion of a life after death.
Hawking died in March 2018, which is when his previously noted thoughts on an afterlife began to resurface. He had lived with the possibility of an early death for nearly 50 years, so would be (in my opinion) highly motivated to believe in an afterlife. And yet, his conclusion was a simple one: no way.
I regard the brain as a computer which will stop working when its components fail … There is no heaven or afterlife for broken down computers; that is a fairy story for people afraid of the dark.
You can read more here.
Then there was hope
Of course, there are other smart science people in the world. And a little searching revealed that there were indeed others who believed there was a life after death.
Here’s a recent example. Researchers at the University of Southampton in the United Kingdom examined more than 2,000 people who suffered cardiac arrests at hospitals in the United Kingdom, the United States and Austria. The results? Nearly 40% of people who survived their resuscitation described some kind of awareness during the time when they were clinically dead. It’s the largest ever medical study into near-death and out-of-body experiences. It concluded that some awareness may continue even after the brain has shut down.
And just this year, some well-respected scientists affirmed their theory that quantum mechanics allows consciousness to live on following the body’s eventual demise. The theory is complicated, but the bottom line is that the physical universe we live in is only our “perception.” Once our bodies die, our soul continues in an infinite beyond. It’s worth a quick read.
I can’t say that I understand quantum mechanics, but I’m “all in” on their theory of an infinite soul. Bring it on.
Thanks for reading … Have a great day,
The general rule, one that most people are probably familiar with when they think of a Will, is that the testator has to have the requisite capacity in order to be able to execute it. But what does that mean?
Generally, it means that a person should be of sound mind and understanding and have sufficient capacity to appreciate the various dispositions of property that would be put into effect with his or her execution of the Will. In other words, the testator must:
(1) understand that they are giving their property to one or more objects of his or her regard;
(2) have the capacity to comprehend the extent of their property and the nature of the claims of others to whom they are giving nothing under the Will.
In the case of a deceased who committed suicide, a question that may arise is whether a person who is about to commit suicide has the appropriate testamentary capacity to be able to execute a Will?
In that regard, it is important to remember that the onus is on the person who is propounding the Will – in other words applying to the court for an order that the Will is valid. In the usual course, there is certainly no presumption against the testamentary capacity of a testator. Indeed, it is quite the opposite. However, in cases where a proposition is made that a death (suicide) note is the last valid will and testament of a testator, it is more likely that someone may object. That is especially the case where an expected beneficiary is disinherited under such a circumstance.
As soon as capacity is called into question, the onus lies on the party propounding the Will to affirm testamentary capacity.
Suicide, in itself, does not equate to testamentary incapacity – although it is a circumstance that may be considered. In fact, a testator may have testamentary capacity even if they are not of entirely sound mind. That means that prior to committing suicide, a person can very well have testamentary capacity. If that is the case, then a death note can be considered a Holograph Will, which in Ontario, in accordance with section 6 of the Succession Law Reform Act, has the following requirements in order to be valid:
(1) It must be entirely in the testator’s hand writing; and
(2) It must be signed by the testator.
There is no requirement for witnesses in the case of a Holograph Will and it must be that the testator intended to dispose of their property after death.
Thanks for reading.
Find this blog interesting? Please consider these other related posts:
Earlier this week, I blogged about the astonishing case of Anna and Kym Hakze, two Alberta sisters whose whereabouts were discovered more than thirty years after they had been missing. I also discussed the Absentees Act, which creates a legal mechanism in Ontario for a missing person’s affairs to be put under the management of a committee.
In today’s blog, I will be discussing the Declarations of Death Act, 2002, which provides the Court with the authority to declare a missing person as dead.
Declarations of Death Act, 2002: an overview
Pursuant to section 2 of the Declarations of Death Act, 2002, an “interested person” can apply to the Superior Court of Justice of Ontario, on notice to any other interested persons of whom the applicant is aware, for an Order declaring that an individual is dead.
The Court will grant such relief if it is satisfied that the missing person has disappeared in circumstances of peril (pursuant to subsection 2(4) of the Act) or if they have been absent for at least seven years (pursuant to subsection 2(5) of the Act).
Who is an “interested person”?
An application for a declaration of death can be commenced by an “interested person,” a term that is defined at section 1 of the Act.
In addition to next of kin and married and common-law spouses, the Act defines “interested person” to include:
- a person named as an executor of the individual’s Estate under a Will or a person who may be entitled to be appointed as an administrator of the Estate on an intestacy;
- a guardian or attorney for personal care or property under the Substitute Decisions Act;
- a person who is in possession of property owned by the missing individual;
- if there is a contract of life insurance or group insurance insuring the missing individual’s life, the insurer and any potential claimant under the contract; and
- if the missing individual has been declared an absentee under the Absentees Act, the absentee’s committee.
The test for a declaration of death
An applicant must satisfy the Court, on a balance of probabilities, that:
- the individual has disappeared in circumstances of peril or been absent for at least seven years;
- the applicant has not heard of or from the individual since the disappearance or during the seven-year period;
- to the applicant’s knowledge (after making reasonable inquiries), no other person has heard of or from the individual during the seven-year period;
- the applicant has no reason to believe that the individual is alive; and
- there is sufficient evidence to find that the individual is dead.
In the event that the Court is not satisfied that there is sufficient evidence to declare the person dead, section 3 of the Act provides the Court with the ability to provide the alternative relief of making an Order under the Absentees Act.
What are “circumstances of peril”?
In considering whether to bring an application under subsection 2(4) of the Act, an applicant must consider if the circumstances in which the individual disappeared would constitute “circumstances of peril.”
Although such circumstances are not defined under the Act, the Court has held that “peril” means a “situation of serious and immediate danger.” The Court will undertake a fact-specific inquiry, and the applicant should ensure that there is sufficient evidence to conclude that the missing individual was in serious and immediate danger prior to their disappearance.
Thank you for reading,
Umair Abdul Qadir
Other Articles You May Be Interested In:
- The Absentees Act: Administering the Assets of Missing Persons
- Declarations of Death in Ontario
- Disappearances, Disasters and Declarations of Death
Today on Hull on Estates, Natalia Angelini and Umair Abdul Qadir discuss Lewicki Estate v Nytschyk Estate, 2016 ONSC 7459, a recent Ontario Superior Court of Justice decision in which the Court considered the enforceability of a settlement between a dependant and an Estate where the dependant died before the settlement was finalized. For more about the decision, please read Suzana Popovic-Montag’s recent blog post.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
Common problems in estate administration, which may lead to litigation, are a lack of planning or a lack of communication. Either someone dies intestate, subjecting their family to the arbitrary rules of intestate succession, or the deceased has left a will with unexpected provisions, without speaking to their family members about their wishes before their death. A possible reason that people might not wish to make a will or talk to their loved ones once they have prepared their will is a reluctance to talk about death.
A growing worldwide movement, “Death Cafe”, aims to remove the taboo surrounding talking about death. The Death Cafe website states its objective is “to increase awareness of death with a view to helping people make the most of their (finite) lives”. At a Death Cafe, people gather to discuss death with others, often strangers, over tea and cake. They are run by volunteers on a not for profit basis, with no agenda or product to sell. Facilitators are discouraged from mentioning their professions or businesses during the sessions.
It is important to note that these events are not counselling sessions, nor do they offer information on death or dying. In fact, guest speakers and information sessions are actively discouraged. The conversation is largely unstructured, with facilitators introducing questions to guide the conversation if necessary.
Death Cafe was started by Jon Underwood in England in September 2011. Since then, the idea has spread and gained in popularity. According to the website, there have been 3455 Death Cafes held across Europe, North America, and Australasia to date.
Death Cafes are regularly held in Toronto. Dates, times, and locations for upcoming Death Cafes can be found on their website. The next Toronto Death Cafe is scheduled for September 14, 2016 at the Belljar Cafe on Dundas St. W.
Thank you for reading.