Tag: estates and trusts

21 Aug

Just Because You Say So Doesn’t Make It So

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The approach taken in claims by or against the heirs, next of kin, executors, administrators or assigns of a deceased can differ from other types of legal proceedings simply because the requirements of Section 13 of the Ontario Evidence Act. Section 13 states:

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 to any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

In determining the nature of the evidence required then to prosecute or defend a claim, one must keep in mind that an adverse party cannot rely 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.

In other words, just because the adverse party says it is so, doesn’t make it so.

Section 13 places this additional evidentiary burden on the adverse party understandably because of the estate’s difficulty in defending an action without the oral evidence of the testator. In Burns Estate v. Mellon, the Court of Appeal held that the corroborating evidence must be in addition to and independent of the viva voce evidence of the adverse party; that additional evidence could be either direct or circumstantial though.

As such, attention to the evidence necessary to prove the case and how that evidence is to be marshalled is critical in these claims, whether that be by way of an Orders Giving Directions used to compel the production of documentation that others may have (ie. testamentary documents, medical records, solicitors records, financial records etc.), by way of an examination (ie. examinations for discovery, third party examinations or a de bene esse examination) or otherwise.

Focusing on the evidence that will be needed at trial or that will be persuasive in settlement discussions is but one of the first steps in formulating one’s approach to a claim.

Canadian Olympic Medal Count: holding at 13 (but hopefully with several more to come).

Keep cheering,



18 Jul

BCE Shares: Charities Seize the Opportunity

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If you have recently gone on to your favourite charity’s website or received correspondence from a charity you donate to, you will likely notice an advertisement asking if you own BCE shares. 

The privatization of BCE shares means that some shareholders are now looking for a way to minimize their tax liabilities from the sale of shares. Some financial advisors have advocated  the direct transfer of the publically traded securities to registered charities as one way to minimize any capital gains.

Since 2006, charities seem to have benefitted from the elimination of capital gains for donated shares. In turn, charities have become more sophisticated and take a business-like approach to attracting potential donors of shares. By providing the contact information of a gift planner, easy to fill out share transfer forms with step-by-step instructions, and information about the advantages of share donation, charities are hoping shareholders donate their shares directly to them by presenting them with a win-win situation.

Additionally, charities are providing more information to potential donors about estate planning and the potential tax benefits of donations-in-kind, such as the transfer of shares. Charities and private foundations are sending the message to potential donors that donors can benefit on multiple levels through different types of donations and charities are there to assist them with their choices.

Enjoy your weekend,

Diane Vieira

16 Jul

Blackberries: Hazardous to your Health?

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Blackberries and iPhones have been in the news a lot lately. These communication devices seem to have become irreplaceable for many Canadians and their frequent use is having an impact on the work place.


This past Monday, the Globe & Mail carried a story about the potential health impacts of the chronic use of these devices. Problems such as Blackberry Belly, caused by slouching when you hunch over to read your screen, and Blackberry Thumb, caused from excessive texting, were just two of the many afflictions cited by a physiotherapist and researchers quoted in the article. Aside from these physical ailments, frequent Blackberry use may also contribute to anxiety.


The use of Blackberries after regular work hours also has the potential of becoming a pertinent employment issue with employees seeking compensation for their use outside office hours. Late last month, the Globe & Mail carried a story about the writers’ union for ABC News, the Writers Guild of America. The Guild was challenging a long standing contract waiver that prevented employees from collecting overtime pay for work that was be done after work hours and facilitated via communication devices such as Blackberries.


It will be interesting to see if the changing technology will have a long term impact on employee’s work environments, or if this is much ado about nothing.


Have a nice day,

Diane Vieira

15 Jul

A Look at Law Related Podcasts

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As you probably know, Hull and Hull LLP produces two weekly podcasts that discuss issues related to the estates area and estate and succession planning. Podcasting has certainly grown in the last year and there is a lot of content out there. To learn more about our firm’s use of this social medium, read Suzana Popovic-Montag’s and Ian Hull’s blog on podcasting.

Other Canadian legal podcasts include Osler Audio Reports offered by Osler, Hoskin, & Harcourt LLP that discuss a variety of business legal issues. The Canadian Bar Association provides PracticeLink Podcasts offering practice management information to its members. Law is Cool is both a blog and podcast produced by and for Canadian law students. (Podcast Episode No. 8 features an interview with Ian Hull).

Law schools are also providing a tremendous amount of information through the podcasting medium. The University of Ottawa’s Law and Technology Program was one of the first educational institutions to utilize podcasting and make classes available via podcasts. Through podcasts, many American law schools are making special lectures available to the public. Harvard Law School’s Program on Negotiation produces PONcasts offering advice on negotiation skills.

On a slightly different note, BBC Radio 4’s Law in Action is a half hour weekly podcast from the UK that discusses legal issues in the news.  

These are just a few of the legal podcast choices out there. Whether it is for education or entertainment purposes, there is a lot of information out there.  

Have a nice day,

Diane Vieira

12 Jun

Beyond Cummings: Reid v. Reid

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In yesterday’s blog I noted that in today’s blog I would mention another dependant support case decided in the post Cummings v. Cummings era.

In Reid v. Reid, [2005] O.J. No. 2359 (Ont. S.C.J.), [2008] O.J. No. 826 (Ont. Div. Ct.), the deceased was survived by her son, her daughter and her daughter’s two children (the deceased’s grandchildren).

According to the trial judge, the deceased’s daughter was a 42 year old mentally challenged individual with one of the grandchildren also being mentally challenged.

The deceased’s estate was worth approximately $200,000, consisting primarily of a house.  The deceased’s daughter and her two children resided with the deceased. The deceased’s Will left her estate equally to her daughter and son.

The daughter and grandchildren brought an application for support.

Having acknowledged the considerations set out in the Cummings decision, the trial judge found that there was a relationship of dependency such that the deceased was contributing to the support of her daughter and her two grandchildren.

The trial judge held that the son should receive $25,000 from the estate with the balance of the estate (the house) to be held for the deceased’s daughter, and on her death, the net proceeds from the sale of the house divided equally between her two children. 

On appeal, counsel for the son conceded the issue of the dependency of the deceased’s daughter and grandchildren as found by the trial judge within the meaning of the Succession Law Reform Act (s.57). Interestingly though, the Divisional Court stated:

“We also agree with the appellant…[the deceased’s son] that the trial judge fell into error by ordering that the residue of the estate pass to… [the grandchildren] without having any evidence before her as to what their needs might be at some unidentified time in the future.  Nor was there any evidence before the trial judge that either of these two applicants would still be dependant within the meaning of the Succession Law Reform Act at this unidentified future date, the date of…[the deceased’s daughter’s] death.”

The Divisional Court ordered, amongst other things, that the son be paid $25,000 from the estate (from a mortgage to be obtained on the house), the house be transferred to the daughter, the daughter and her two children may live in the house until 2018, at which time the property will be sold and the proceeds distributed equally between the son and the daughter, provided that the son’s share be reduced by the above-noted $25,000. 

Thanks for reading. 


02 May

The Law and Polygamy in Canada

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The intense media coverage of the raid on the polygamist ranch in Texas has also generated scrutiny of Canada’s polygamous communities.


Polygamy is against the law in Canada but there has not been a prosecution of a case in over sixty years. For a background on the issues surrounding polygamy and Canadian law, read A Polygamy Primer on Osgoode Hall’s law blog, The Court.


The primer provides a link to a collection of research policy reports commissioned by the federal government exploring polygamy in the Canadian context. While the focus of the papers is on polygamy in a criminal law and family law context, the paper by Alberta’s Civil Liberties Research Centre discusses the civil case of Yew v. British Columbia (Attorney General) [1924] 1 D.O.D. 1166 (B.C.C.A.). In the case, the British Columbia Court of Appeal gave limited recognition to a polygamous marriage that had occurred in China to allow the two surviving wives to receive their annuities from their husband’s estate at a lower tax rate.


It will be interesting to see if the possible recognition of polygamous unions in the family law context will have an impact on estates law.


Enjoy your weekend,

Diane Vieira

01 May

Millionaire’s Estate worth Nil

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Dame Anita Roddick, the founder of the Body Shop, gave away her entire wealth, approximately 102 million dollars, to various charities while alive. She only left enough money in her estate to pay the inheritance tax on those charitable gifts. Once the inheritance tax is paid, the value of her estate will be nil.

Roddick had been very vocal about her intentions to give her wealth to charities and called the idea of bequeathing her estate to her two daughters obscene. Prior to their mother’s death, her two daughters were interviewed and reportedly relieved to not be inheriting their mother’s wealth and supportive of their mother’s charitable giving.

Needless to say, Roddick’s decision to leave nothing to her two daughters sparked some discussion. David Smith’s previous blog on wealthy parents and transfer of wealth discusses some of the concerns such individuals have about estate planning.

Thanks for reading,


Diane Vieira

30 Apr

A Look at the Moral and Legal Obligations to Dependants

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An Alberta case, Re Boychuk, looks at the legal and moral obligations to provide support to a dependant of the estate.

The testator executed his Will in 2003 when he was 89 years old leaving his entire estate, just over $62,000.00, to two of his five children and leaving nothing to his wife of 71 years who resided in a nursing home. The testator’s wife suffered from dementia and a stroke and had been living in a long term care facility since 1997.

Alberta’s Office of the Public Trustee, as the trustee of the wife’s property, brought an application pursuant to Alberta’s Dependant’s Relief Act for an order that the residue of the estate be paid to the Public Trustee for the proper maintenance and support of the wife. The Respondents were the executors of the testator’s estate.

The Court found that the wife was a dependant of the estate and adequate provisions were not made for her maintenance. The Court rejected the Respondents’ argument that the support claimant currently had a surplus of income over expenses for each month, including a trust for unanticipated expenses, and no need for any additional support. The Court found that while the support claimant may presently be able to meet her expenses it does not mean that she will always be able to nor does it mean that she should be deprived of her entitlement and stated that the testator had both a legal and moral obligation to provide support to his wife. The Court also noted the length of the marriage and the extensive contributions the wife had made to her husband’s estate.

Thanks for reading,

Diane Vieira

29 Apr

Arthur Miller’s Last Words

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A Vanity Fair article published late last year writes on the relationship between playwright, Arthur Miller and his son, Daniel Miller who was born with Down Syndrome. Daniel was born in 1966 and institutionalized one week after being born and apparently while other family members kept in touch with Daniel, Miller rarely visited him or spoke of him.


When Miller died in February 2005, very few people knew of Daniel’s existence. Only one obituary notice mentioned Daniel and Miller’s own memoirs include no mention of Daniel.


Six weeks before his death, Miller made Daniel a full and direct heir equal to his other three children. While Daniel is not mentioned in the Will directly; separate trust documents, created the same day and sealed from public view, make Daniel an equal heir to Miller’s estate.


The article speculates that this was likely done contrary to legal advice as Miller’s bequest makes Daniel too wealthy to receive government assistance and a special trust was not created that would allow Daniel to inherit from the estate and continue to receive government assistance. In fact, Connecticut’s Department of Administrative Services issued a reimbursement claim to the estate for Daniel’s care since infancy and the estate is settling the claim.


Miller’s relationship with Daniel was complex and only Miller would be able to answer as to why he decided to make Daniel, who he did not publically acknowledge during his lifetime,an equal heir to his estate.


Until tomorrow,

Diane Vieira

16 Nov

Family Value Statement

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I read an article in this week’s Maclean’s magazine that more and more of Canada’s "Super Rich" are drafting family value statements. According to the article, approximately $3 trillion (though the figure varies depending on the source) will be transferred in the coming decades to the next generation. The Super-Rich are particularly concerned that their children, as beneficiaries of this wealth transfer, will take the easy way out and decide not to work or give back to the community. Warren Buffet received a great deal of press when he stated publicly that he would not leave his fortune to his children. Instead, the Bill and Melinda Gates Foundation was the recipient of Mr. Buffet’s considerable largesse. 

According to the article, a value statement spells out those values that are important to the family and can include values that speak to community, work ethic, and religion. Apparently, the Super Rich are willing to pay various consultants significant amounts of money to get the statement just right. Every family member is asked to participate so that everyone buys into the process and the statement withstands the test of time.

Whether the average Canadian family actually sits down and crafts a family value statement is debatable. However, most families will discuss informally, whether over dinner or around the campfire, the values that motivate them and help them navigate life’s many choices. 

However it is done, it makes good sense for parents to sit down with their children to not only talk about the pending transfer of wealth, but their expectations (and aspirations) as to how their children will spend their inherited wealth. It is a truism that money has always been hard to handle.

Have a good weekend.



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