Tag: estates and trusts
BBC News recently commented on a study published in the Lancet journal that shows more than half the babies now born in the UK and other wealthy nations will live to be 100 years old. The data from the study indicates that these extra years would be spent with less serious disabilities for the elderly.
The researchers, from the Danish Aging Research Center, refer to “four ages of man”-child, adult, young old age and old old age. Surprisingly, there was little evidence that those who belonged in the old old age group were unhealthier that those in the young old age group likely because the frailest elderly died first leaving the more robust to survive past the age of 85. Danish and American studies show that about 30%-40% of those falling into the old old group live independently.
Of course, such a development requires countries to reform their health-care services, employment practices, and care services. In the U.K., with an election looming, the Tory party has promised a Home Protection Plan that would allow people at the age of 65 to make a one time payment plan of £8,000 pounds in exchange for free full-time residential care in later life. This proposed policy addresses the issue of the elderly having to sell their houses in exchange for funding care giving services.
A significant longer life expectancy requires careful retirement and estate planning. If this trend towards increased life expectancy continues, long standing assumptions will have to be altered.
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Diane Vieira – Click here for more inforamtion on Diane Vieira.
October 1, 2009 was a historical day in U.K.’s judicial history, as the Supreme Court of the United Kingdom was established.
Prior to last week, the House of Lords held the judicial function as the court of last resort.
A Committee of legally qualified lords who sat in the House of Lords, known as the Law Lords, heard final appeals of court decisions. Even though they rarely took part in political debates or voted on legislation, the Law Lords were peers of the House of Lords.
Prompted by concern and possible criticism by the European Union, due to the appearance of a conflict of interest as the officials who execute laws were those testing those laws, there was a movement to create visibly distinct legislative, judicial, and executive powers.
In 2003, then Prime Minister Tony Blair announced the creation of a judicial body to act as a Supreme Court. The Constitutional Reform Act, 2005 provides that the Supreme Court take over the judicial functions from the House of Lords. Now the Supreme Court has their own building, identity separate from the House of Lords, and blog.
The Supreme Court is the court of the last resort in all civil matters in the U.K. and criminal matters in England, Wales and Northern Ireland.
There are 12 Law Lords (with one current vacancy) who will hear appeals, with up to nine judges hearing an appeal. It will be interesting to see if the appointment of the Law Lords becomes politicized as in the United States or if this move merely re-brands the system that was already in place.
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Diane A. Vieira – Click here for more information on Diane Vieira.
Those who follow American politics have probably heard of Roland Burris. He is controversial Governor Rod Blagojevich’s choice to replace the Senate seat vacated by President –Elect Barack Obama. While the constitutional debate continues on whether or not Burris can be seated in the Senate, another issue that has grabbed the headlines is Burris’ final resting place.
Burris has commissioned for himself a grand mausoleum consisting of two columns and three tablets referring to himself as a trail blazer and listing all his political and business accomplishments, both minor and major, with room for more to be engraved. The monument, referred to “as his resume in stone” had attracted unfavourable attention from the media and earned Burris the nickname “Tombstone”. Needless to say, it was probably not the effect Burris intended.
While many people include burial instructions in their Will, such instructions are not binding on the estate. The estate trustee has the ultimate responsibility to make burial arrangements. For those who wish to make elaborate arrangements, they should make those instructions clear to the estate trustee and other family members, so that the estate trustee is not criticized for the expense to the estate. Additionally, we can take Burris’ lead and make our own arrangement during our lifetime. Click here to read Paul Trudelle’s paper on estate issues and dealing with the body after death.
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Wendy Reynolds from Slaw recently posted on a proposed regulatory change to the Rules of Civil Procedure with respect to the duties of expert witnesses. Coming into force in two years, the December 27, 2008 Ontario Gazette lists several amendments to the Rules of Civil Procedure including:
RULE 4.1 DUTY OF EXPERT
Duty of Expert
(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.
(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.
It will be interesting to see what impact, if any, this amendment will have on the duties of expert witnesses. Case law already suggests expert witnesses are already required to report in an independent manner and cannot been seen as an advocating for the party that retains them. The strength of an expert witness comes from their objective evidence and the evidence of an expert witness will be rejected if they are bias.
Does this proposed Rule merely confirm the well established principles of expert evidence as it has developed in case law or does it go beyond establishing the independence of an expert witness? Are we moving towards the use of joint experts to assist the Court? We have a few years to find out.
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Happy New Year!
It promises to be an interesting year in estates law with exciting changes headed our way. Under the guidance of the Honourable Mr. Justice Brown, the Estates List Practice Direction is being updated and should be implemented before the end of the year.
The Ontario Bar Association is starting a listserv for Trusts & Estates section members. This email based mailing list will allow members to post questions or share their thoughts with other members. Members can expect an email later this month from the Ontario Bar Association with details on how to subscribe.
The Law Society’s new client identification and verification requirements came into force on December 31, 2008. The Law Society is offering a teleseminar on January 13, 2009 to discuss the new requirements and to assist with any questions practitioners may have.
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I hope everyone is having great holiday season.
With the close of 2008, we turn and look to the promise of 2009. In looking ahead to 2009 many may wonder if they have properly protected and provided for those they intend to protect should something unexpected happen to them. Questions may also arise regarding whether a spouse or parent has taken steps to provide for themselves and/or those they intend to provide for.
While there are no doubt many things to consider for the new year from a family perspective, perhaps this is the year to resolve to consider, or reconsider, whether your family’s legal affairs have been properly planned.
I wish everyone a healthy, happy and prosperous 2009.
Happy New Year! Craig
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, don’t 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.
Enjoy the long weekend (and last of the summer), school starts next Tuesday.
Previously, David Smith has blogged on the dispute between the Beaverbrook Art Gallery in Fredericton, New Brunswick and the Beaverbrook U.K. Foundation with respect to the ownership of the paintings and sculptures owned by the late Lord Beaverbrook. Click here to read about the background to this dispute and here to read about the costs awarded to the gallery.
You may recall that the arbitrator, retired Supreme Court of Justice Peter Cory awarded ownership of 85 out of the 133 paintings to the gallery. Justice Cory found that that artwork conveyed prior to the gallery opening were irrevocable gifts. In his decision Justice Cory referenced, amongst other evidence, newspaper and media articles commissioned and authorized by the late Lord Beaverbrook as evidence of Lord Beaverbrook’s donative intent.
In a Notice of Appeal, the foundation accuses Cory of being biased against them throughout the hearing. Lawyers for the gallery has called the appeal baseless and state the accusation of bias were only made after the release of Cory’s decisions and have asked for the appeal to be dismissed. You can read the factum of the gallery on their website. .
At the beginning of the arbitration process both sides agreed to an appeal mechanism. Three former judges from three different provinces will hear an appeal of the arbitration decision of Justice Cory. Justice Coulter Osborne of Ontario was chosen by the gallery. Justice Thomas Braidwood of British Columbia was chosen by the foundation. Those two judges chose Edward Bayada, former justice of the Saskatchewan Court of Appeal to chair the panel. The panel will begin to hear arguments beginning in September 22, 2008.
With the foundation already ordered to pay the costs of arbitration, it will be interesting to see how costs are decided this time around.
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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.
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The Beijing Olympic Games come to a close this weekend and the international sports community turns their attention to the 2010 Vancouver Games and the 2012 London Games.
The Olympics inspire a multitude of feelings and generate a healthy amount of debate. One thing for certain is that a tremendous amount of preparation is required by the hosting city and the effort of a variety of people are required to pull it all together.
An interesting article posted on timesonline looks at the impact of the Olympic Games on the legal profession. The article boldly declares that lawyers are as much a part of the sporting community as athletes. It goes on to describe how the Olympics generate a boom in legal work as a result of preventing ambush marketing and unauthorized broadcasts as well as both defending and prosecuting anti-doping cases.
For those interested in learning more about international sports law, a great international law blog Opinio Juris featured some excellent expert commentators during the Beijing Games. A compelling post discussed the growing prominence of athletes representing countries that they are not citizens of. The author contrasts a competitor’s identity vs. a national identity and explains the requirements under the Olympics Charter for an athlete to compete for a nation.
Congratulations to all the athletes and let’s get ready for 2010!
Enjoy your weekend,