Tag: duty

10 Sep

Judge doesn’t like juror’s facebook post during trial

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Serving on a jury is one of our most fundamental civic duties. It can, however, pose hardships on those individuals summoned to the jury box, particularly when one considers the financial impact of giving up your income while acting as a juror.

Despite the financial hardship associated with jury duty, it is a serious undertaking and should be seen as such. As a juror, you are required to play an active role in the administration of justice and, together with other citizens, you will be required render a verdict of guilt or innocence in a criminal matter.  

A recent article in the Globe & Mail with the above captioned-title underscores the importance of taking jury duty seriously. 

A Michigan woman, summoned to be a juror, posted on her Facebook page that it was “Gonna be fun to tell the defendant they’re GUILTY”

Alarmingly, her post was found by the defence team BEFORE it had even started its case.

The next day, the juror found herself removed from the jury. Judge Druzinski told the Michigan woman that it did not matter whether she used Facebook to express an opinion or simply spoke to a friend about the case.

“You violated your oath. … You had decided she was already guilty without hearing the other side”

By October, 1, 2010, the Michigan woman must submit an essay about the 6th Amendment to the U.S. Constitution and pay a $250 fine.

Have a great weekend!

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

22 Oct

The Duty to Dispose of the Body

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Upon the death of a person, a duty arises to bury or otherwise dispose of the remains in a decent and dignified fashion.  But who does this duty fall upon?  

It is well established in the jurisprudence for Ontario that plans for the service and burial arrangements are the responsibility of the estate trustee.  This responsibility can conflict with the wishes and expectations of the deceased and family members, particularly in a religious context.

In Saleh v. Reichert, the deceased was of the Muslim faith.  Her husband had converted to the Muslim faith for the purpose of there marriage.  There was evidence indicating that the deceased expressed her wish to be cremated upon her death.  The deceased’s husband was appointed as the estate trustee without a will and intended to honour the deceased’s wishes.  The deceased’s father objected to the cremation on religious grounds.

The court affirmed the fundamental duty of an estate trustee is to ensure that the remains of a body be disposed of in a decent and dignified fashion.  The court held that religious law has no bearing on the case.   In Ontario, burial and cremation are both means that would meet the requirement for disposal in a decent and dignified fashion.  The deceased’s father’s action was dismissed.  

It is important to note that it was acknowledged that there is no property in a body.  Therefore, any instructions left by the deceased, whether in a Will or otherwise are only precatory and are not binding on the estate trustee.

Rick Bickhram

19 Feb

Accounting Procedure Available Under the Substitute Decisions Act – Hull on Estates #98

Hull & Hull LLP Capacity, Hull on Estates, Litigation, Passing of Accounts, Podcasts Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , 0 Comments

Listen to Accounting Procedure Available Under the Substitution Decisions Act.

This week on Hull on Estates, Rick and David discuss procedure under the Substitution Decisions Act and review executor and attorney obligations as well as specific procedures permitting someone to compel an accounting.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

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17 Jul

BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – EVIDENTARY ISSUES – WHAT TO DO ABOUT ABUSE CLAIMS? – PART V

Suzana Popovic-Montag Archived BLOG POSTS - Hull on Estates, Ethical Issues, Litigation Tags: , , , , , , , , 0 Comments

In almost every case, the majority of the evidence will come from the allegedly abused child and, as such, the strength of that evidence can be problematic. In these types of situations, one must not forget the requirement of corroborative evidence pursuant to section 13 of the Estates Act R.S.O. 1990, c. E.23, which provides that:

13. In an action by or against the heirs, next-of-kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

See also Schnurr B.A., "Estate Litigation – Requirement of Corroboration", 5 E.T.Q. 42.

Due to the evidentiary difficulties of these types of claims, one of the first steps that a claimant should consider taking is to obtain an expert’s opinion.

The expert’s opinion should contain evidence for the Court to consider with respect to such things as the recollections of the claimant, the details of abuse over the years and the results of both the mental and physical ramifications of that abuse.

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13 Jul

BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – LIMITATION ISSUES? – Part IV

Suzana Popovic-Montag Archived BLOG POSTS - Hull on Estates, Ethical Issues, Wills Tags: , , , , , , 0 Comments

As to the question of fiduciary duty between parent and child, the Supreme Court of Canada in M.(K.) v. M.(H.) held that the relationship of parent and child is fiduciary in nature and that incest was a breach of the parent’s fiduciary duty to protect the child’s well being and health.

Limitation Periods

It is perhaps the most compelling defence available to counsel defending a parent in such cases that the claim has been brought outside of the conventionally recognized limitation periods.

A significant portion of the decision in M.(K.) v. M.(H.) was devoted to the question of the limitation defences raised by the parent.

In contrast, counsel for the child argued that incest was a separate and distinct tort which was not subject to any limitation period; that incest constituted a breach of fiduciary duty by a parent and is not subject to any limitation period; and if a limitation period applies, the cause of action does not accrue until it is reasonably discoverable. Furthermore, it was argued that the child was of unsound mind pursuant to section 47 of the Limitations Act; that the tort is continuous in nature and the limitation period does not begin to run until the child is no longer subjected to parental authority and conditioning; and that the equitable doctrine of fraudulent concealment operates to postpone the limitation period.

The limitation defence failed and the Supreme Court of Canada held that the tort claim, although subject to limitations legislation, does not accrue until the child is reasonably capable of discovering the wrongful nature of the parent’s acts and the nexus between those acts and her injuries. Furthermore, that the discovery took place only when the child entered therapy and the lawsuit was commenced promptly thereafter.

All the best, Suzana and Ian. ——–

12 Jul

BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – WHAT TO DO ABOUT ABUSE CLAIMS? – PART III

Suzana Popovic-Montag Archived BLOG POSTS - Hull on Estates, Ethical Issues Tags: , , , , , , , 0 Comments

As is sometimes the case, an unequal distribution of an estate as between children can arise from a testator who has had a long history of mental illness, chronic alcoholism or other such personal reasons, which may affect the testator’s state of mind over a period of many years.

For example, if a child who has been treated unequally grew up in a home where he or she suffered through instances of physical violence, as between the parents and him or herself, this may be the type of fact situation to consider when looking to pursue a claim for breach of fiduciary duty of parental obligations. Similarly, if the unequally treated child lived in a home that was constantly in turmoil, as a result of a chronically alcoholic parent, this situation should also be considered in the context of the fiduciary obligations of a parent.

In our view, one must find several compelling supporting facts to bolster any claim of breach of fiduciary duty or breach of parental obligation. Such facts should also be combined with a clear and identifiable estrangement as between parent and child.

Parental Obligations

In the decision of M. (K.) v. M. (H), the Supreme Court of Canada considered the whole concept of what is meant by the term "parental obligation".

The Court considered this issue in the context of a particularly gruesome and egregious set of facts.

In M.(K.) v. M.(H.), the Supreme Court of Canada examined the parent-child relationship in the circumstances of long-standing allegations of incest and abuse by a parent to a child.

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10 Jul

BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – WHAT TO DO ABOUT ABUSE CLAIMS? – PART I

Suzana Popovic-Montag Archived BLOG POSTS - Hull on Estates, Litigation, Wills Tags: , , , , , , 0 Comments
While the law surrounding the breach of fiduciary duty has evolved in many ways over the years, it may be that its current application to estate litigation should be revisited.
The conventional situation where an attorney, a personal representative or a trustee is in a fiduciary position and then uses his or her power in a way that would constitute a breach of that position, has been seen as a fundamental breach of fiduciary duty: see M.(K.) v. M.(H.) (1992), 96 D.L.R. (4th) 289 (S.C.C.).
In M.(K) v. M(H), a unique twist to the conventional "breach of fiduciary duty" was considered by the Supreme Court of Canada in the context of the fiduciary duties of a parent.
It appears that there is now clear authority for the proposition that a parent is in a fiduciary relationship with his or her child. Furthermore, where there are abusive actions on the part of the parent against the child, this conduct may cause the Court to hold that a breach of fiduciary duty has occurred and thereby damages may be awarded against the parent. See also Cullity, M.C. "Personal Liability of Trustees and Right of Indemnification", 16 E.T.J. 115.
Ian has published an article on this topic in the Estates and Trusts Reports entitled, "A New Twist on Breach of Fiduciary Duty in Estate Litigation" (Carswell, 1999). As such, we propose to undertake a careful review of this unique yet important aspect of fiduciary duties.
All the best, Suzana and Ian.

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