The title of today’s blog comes from the opening line of Derek Thompson’s article, Why Americans Die So Much, published in The Atlantic.
In the article, Thompson observes that U.S. life spans over the past 30 years are falling behind those of other similarly wealthy countries. The author looks at a September 2021 study by the National Bureau of Economic Research which shows that Americans die earlier than their European counterparts in every age group. American babies are more likely to die before they turn 5 compared to Europeans; American teens are more likely to die before they reach 20 than their European peers, and American adults are more likely to die before they reach 65, compared to Europeans. Overall, Europeans have a longer life expectancy.
And the study’s numbers go back several decades. The results are not due to recent COVID deaths, or the recent drug overdose crisis.
Thompson says that finding a straightforward explanation is hard. One factor is gun violence, which is more prevalent in the U.S. Another might be motor vehicle accidents: Americans drive more than residents of other countries.
The study makes three important findings:
- European mortality rates are consistent between rich and poor. This is said to be due to health improvements, which are better disseminated in Europe. The poor in America do not all enjoy the benefit of such health improvements. In America, black teenagers in the poorest areas are twice as likely to die before they turn 20 than those in the richest areas. The effect of poverty on lifespan is substantially higher in the U.S.
- Overall, Europeans live longer than Americans, even when comparing rich Americans to rich Europeans. This, it is said, “says something negative about the overall health system of the United States”.
- On a brighter note, longevity amongst Black Americans is improving, and the gap between white life expectancy and Black life expectancy is closing. This is said to be due to advances in science and technology, which are now more readily accessible to all. In addition, reductions in air pollution have helped, as Black Americans were more likely to live in more polluted areas. Other factors contributing to the closing of the gap include increased drug deaths (more prevalent amongst white Americans), and a decline in homicides, which disproportionally kill Black Americans.
Thompson concludes his article by calling for greater income redistribution and universal health care. “For decades, U.S. politicians on the right have resisted calls for income redistribution and universal insurance under the theory that inequality was a fair price to pay for freedom. But now we know that the price of inequality is paid in early death – for Americans of all races, ages and income levels.”
Thank you for reading.
You are the owner of real property that you would like to transfer to one of your children upon your death. Although you could include the bequest of this property in your Last Will and Testament, in the hope of potentially minimizing estate administration tax you decide to sign the transfer for the property now and provide your lawyer with clear instruction that it is not to be registered until after your death. Is this transfer valid and/or an effective estate planning tool?
A transfer/deed of land for real property which is not registered until after the transferor’s death is known colloquially as a “zombie deed”, insofar as they are said to come back to life after the transferor’s death. The use and availability of zombie deeds in Ontario is highly problematic.
The potential validity and/or enforceability of “zombie deeds” was recently considered by the Ontario Superior Court of Justice in Thompson v. Elliott Estate, 2020 ONSC 1004, wherein the court confirmed that zombie deeds were generally inoperable and could not be registered by a lawyer after the transferor’s death. In coming to such a decision the court places great emphasis on the fact that the Ontario registry office is correct in refusing to allow the registration of “zombie deeds” as they require the lawyer registering the document to knowingly make false statements, namely that the individual completing the transfer is still alive.
The Ontario Court of Appeal in Re Sammon (1979), 22 O.R. (2d) 721, confirmed that in order for a transfer to be valid the transferor must have intended to be “immediately and unconditionally bound” by the transfer at the time of signing. This requirement to be “immediately and unconditionally bound” by the transfer raises obvious questions surrounding whether a transfer that was signed under the instructions not to be registered until after the transferor’s death could be a valid transfer, as by the very instruction it would appear the transferor did not intend to immediately be bound by the transfer.
The Ontario Court of Appeal in Carson v. Wilson,  O.R. 113, confirmed that a transfer that was signed under direction not to be registered until after the transferor’s death could not be considered effective due to the issues surrounding the requirement to be “immediately and unconditionally bound”. As summarized by the court in Tubbs v. Tubbs,  O.J. No. 4373:
“The court held that the documents did not operate as present assignments or either immediate or remainder interests in the particular lands because there was no acknowledgement by the deceased, express or implied, of any intention to be immediately and unconditionally bound by them. Nor could the deeds be regarded as effective escrows. Delivery was contingent on death, and accordingly the court found that they were not effective deeds or assignments but testamentary dispositions which failed for want of compliance with the Wills Act. The Court of Appeal went on to hold that it could not be argued that the documents amounted to valid declarations of trust by the deceased.” [emphasis added]
The requirement that the individual transferring the property must have intended to be immediately and unconditionally bound by the transfer makes the potential use and availability of zombie deeds problematic, for by their very design the transferor likely intended to continue to enjoy some level of control over the property after signing the deed, whether it be the continued use and occupation of the property or otherwise. As a result any individual considering the potential use of a “zombie deed” should likely approach the topic with caution.
Thank you for reading.
“To weep is to make less the depth of grief.”
(Henry VI, Part III Act II, Scene I)
The numbers are breathtaking: over 12,000 Canadians have died of covid-19. Between covid and non-covid deaths, over 1.2 million Canadians are in some stage of grief. With the holidays just over the horizon, and the numbers showing no signs of ebbing, this time of year, already fraught for so many, is going to pose new and difficult challenges for so many of us. And according to Naheed Dosani, a palliative care physician and health justice activist, we’re not talking about grief enough.
In a recent interview with CBC News, Mr. Dosani shared his experience with “grief circles,” a gathering of colleagues where tears laughter and memories are shared in honour of the people for whom they have cared. Grief circles have moved online, but the number of participants are increasing, partly, he says, “because there’s more grief than ever before.” Shelly Cory, executive director of Canadian Virtual Hospice, sees this as “the hidden crisis of the whole pandemic.” Cory is a co-founder of the Canadian Grief Alliance, a coalition of leaders in bereavement and grief:
“Canadians have been robbed of goodbyes with dying friends and family or people they care about and forced to grieve in isolation without funeral rites. They and those working on the front lines of health care are at heightened risk for prolonged, complicated grief marked by depression, and the risk of suicide. Existing grief services are fragmented, under-funded and insufficient. Left unaddressed, significant long-term social, health and economic impacts will result.”
While Ms. Cory and Mr. Dosani are urging the federal government to implement a National Grief Strategy, the stark numbers reveal a tragic truth: we’re not talking to each other enough about grief. While lockdowns and safety measures may be preventing us from being present with a loved one at the end, grief and grieving is itself in a kind of quarantine. Unable to hug her mother and father-in-law after the death of her husband, Heather Ramey recently told Maclean’s magazine, “I want something more for my children other than this.”
Complicated grief, more than just prolonged sadness, can have devastating effects including PTSD, depression and suicidal thoughts. Pandemic related isolation and loneliness, and in particular around the holidays, can make matters more pronounced, or even worse.
It’s hard, it’s sad, but grief is still a process like any other. While grief is unique to each of us, the Centre of Addiction and Mental Health (“CAMH”) reminds us of a few suggestions to get started:
• Get clarity by naming the struggle and identify five things that have been hard, then tackle
them one at a time.
• One day at a time. If we only focus on smaller issues in a given day, we break things up
into smaller, more manageable pieces.
• Self-care, self-care, self-care. While grief can often lead us to take care of others, check in
with yourself every day. Take some time for yourself and be compassionate with yourself.
• Talk to someone. As the saying goes, “a burden shared, is a burden halved.”
It’s this final point that remains so challenging during a lockdown.
While there are several online resources and articles from local hospitals to the Harvard Business Review, it’s critical to remember to reach out and show your support, or ask for support, during a difficult time. Be it a front-line health worker like Mr. Dosani, or a colleague from years ago, or a friend you haven’t heard from in a few days: We need to talk each other more.
Ian Hull and Daniel Enright
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.
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