The COVID-19 pandemic has resulted in temporary changes to the way that lawyers are able to practice law. For the time being, many of us and our staff are working remotely, avoiding in-person meetings whenever possible, and access to assistance through the courts is limited.
Processes such as examinations for discovery and mediations may not necessarily be postponed with the availability of online platforms through which they can be hosted, such as Zoom. However, an issue remains in how best to address procedural issues for which we would normally seek directions from the court.
For the time being, court dates are available only to provide assistance in respect of truly urgent matters. While some clients may consider the appointment of an estate trustee during litigation or timetabling issues to be urgent, it is unlikely that a judge will share this viewpoint absent compelling circumstances. While the scope of matters that can be heard by teleconference may expand after April 6, 2020, the ability of the courts to keep up with demand can be expected to be limited. Furthermore, once the courts resume operations, one can only expect schedules to fill up quickly as lawyers and clients try to make up for lost time.
Lawyers and our clients have a common interest in moving matters forward during this period of instability. To assist in this regard, I am spearheading an initiative that I have called Estates Arbitration Litigation Management (“EALM“).
What I see as being the key features of EALM can be summarized as follows:
- parties will enter into an EALM agreement that sets out the matters to be arbitrated, primarily being procedural and interim relief;
- senior members of the Bar will assist the parties as arbitrators in determining those issues agreed upon at a reduced hourly rate;
- if the decision of the arbitrator requires a court order to be effective (for example, the appointment of an estate trustee during litigation), the parties agree to file a consent motion in writing to obtain the necessary order; and
- the parties may return to court to address substantive issues once normal operations are restored or may elect to proceed to arbitration or mediation.
These measures have already been successfully employed by the Family Law Bar and we are grateful to Aaron Franks, Judith Nicoll, Martha McCarthy, and Gary Joseph for sharing their experiences in that regard. A link to a precedent draft agreement specific to EALM, as well as an information sheet that lawyers will be able to share with clients, will be added to the resources section of our website within the next couple of days, which will be the result of continued consultations with senior members of the Estates Bar.
Despite the unique challenges posed by COVID-19, it is important that we employ new measures to continue to move matters forward for the benefit of our clients and colleagues throughout the Estates Bar, and I am hopeful that EALM will become a timely and cost-effective tool in limiting the disruption to our practices in the coming weeks. If you have any comments regarding EALM, or are interested in introducing this into your own practice, please contact me at firstname.lastname@example.org.
Thank you for reading and be safe.
In preparing my other blogs this week, I spent some time considering the issue of how we might see the increased access to medical assistance in dying (MAID) impact our practice area. As such, I thought that I would finish off this series of blogs focusing on MAID with a hypothetical question I have not yet encountered in practice, but which is inevitably going to be raised: what impact, if any, does MAID have on a will challenge?
Our regular readers will already be well aware that capacity is task, time, and situation specific.
Presumably, the standard of capacity applying to the decision to access MAID is that required to make other personal care decisions, such as receiving or refusing medical treatment. Section 45 of the Substitute Decisions Act, 1992, defines incapacity for personal care as follows:
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
I have been unable to find any literature suggesting whether the standard may be somewhat heightened as a result of the significant impact of the decision to actually receive MAID.
The standard for testamentary capacity typically applied remains that set out in the old English authority of Banks v Goodfellow. While some have suggested that the standard of testamentary capacity be updated, we are generally concerned with the same, well-established criteria:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
While, historically, standards of mental capacity were viewed as hierarchical, recent case law and commentary have strayed from this understanding, instead viewing the different standards of mental capacity as just that: different. Courts will consider whether an individual understood the nature of the decision being made and appreciated the reasonably foreseeable consequences of their decision.
Consent to MAID must be confirmed very shortly before it is administered, which restriction has been of considerable controversy. While possessing the capacity to confirm consent to obtain MAID may not correspond to testamentary capacity, it may nevertheless become evidence suggestive of a degree of mental capacity that is valuable (in conjunction with other evidence) in establishing that a last will and testament executed shortly before death is valid.
Whether the fact that MAID has been achieved will be important evidence on a will challenge in support of testamentary capacity or not remains to be seen, but it will be interesting to see how the laws relating to MAID evolve and how incidents of MAID may impact estate law over time.
Thank you for reading,
It is the start of a new year and a new decade. Many of us recently enjoyed some holidays and had much to eat and drink. Many of us are also feeling the lingering effects of this merriment. I figured that an uplifting, feel good read would be a nice way to start 2020. I was thus delighted to learn about Eva Gordon, and her estate.
Ms. Gordon passed away at the age of 105. She grew up on an orchard in Oregon, never graduated from college, and worked as a trading assistant at an investment firm in Seattle. In 1964, she married her husband, who was a stockbroker. They did not have any children together. Neither Ms. Gordon or her husband came from money, and they lived a modest life. Ms. Gordon’s godson, who was the Estate Trustee, joked that if Ms. Gordon and her husband went out for lunch or dinner, then they would make sure to bring their Applebee’s coupon.
From the salary that Ms. Gordon received from her employer, she purchased partial shares in numerous stocks, including oil and utility companies, and was an early investor in Nordstrom, Microsoft, and Starbucks. Unlike many at that time, Ms. Gordon held onto these valuable stocks. As a result of this shrewd investing, Ms. Gordon’s wealth increased considerably over the latter years of her life.
Instead of wasting away her money, in her Will, Ms. Gordon decided to bequeath $10 million to various community colleges, with about 17 colleges each receiving cheques for $550,000. Interestingly, no stipulations were put into place as to how the money was to be spent by the colleges. The colleges could do with the money as they wished. For many of them, it was one of the largest donations they had ever received.
For an interesting perspective on the impact of donations to modest, as opposed to elite, institutions, you should listen to Malcolm Gladwell’s Revisionist History podcast (episode 6).
If you find this blog interesting, please consider these other related blogs:
With the summer vacation now at the midpoint, many people are travelling as part of their holidays. But, what can one do when a friend or family member dies while you are on vacation? Does your trip have to be cut short? Are there additional charges to be paid for changing dates on plane tickets and for hotel room cancellations? Not any longer. In many cases, a livestream funeral service is now available. Some companies provide this service via the internet. Or, depending upon the funeral home, wireless can be used to stream the memorial service using facetime or skype. There are even websites that provide information and assist with the planning of the do-it-yourself camera work.
There are many advantages for those who cannot attend even if not on vacation. Other reasons to not attend in person might be because of illness, distance, cost or other barriers. Now almost everyone can attend from wherever they are.
Also, the funeral service can be archived and watched again online. This can be of benefit not only to those who could not attend the service in person but also to family members who were there. It can help in dealing with their loss or to simply remember things that were missed in the immediate grief of the service. Technology has developed rapidly. It has become accepted and has recently extended into the areas of wills and estates, providing services such as online obituaries instead of publishing in newspapers; advertising for estate creditors using online services instead of much more expensive newspaper print notices; cataloging and registering the location of wills (in some jurisdictions); assisting lawyers in automated interactive drafting of wills (like the Hull e-State Planner); recognizing the validity of electronic wills (in some jurisdictions); among others. The trend towards even more changes coming in this area is strong and there is hope that expanding technology use will serve to assist friends and family members through difficult times.
Thanks for reading!
The popularity of cryptocurrencies has heightened the world’s attention on the versatility of blockchain technology. An interesting development is the application of a blockchain solution for estate planning of crypto assets.
Generally speaking, a blockchain is a shared, real-time ledger of any type of information that can be recorded ranging from financial transactions to ownership of real property. Blockchain technology allows for blocks of information to be stored in a chain on a distributed peer-to-peer network.
The traditional method of estate planning, as we know it, involves hiring a lawyer to prepare a will, which appoints the executor(s) and lists the beneficiaries. When the testator passes away it is the responsibility of the executor to administer the estate in accordance with the will. This traditional method has created uncertainty for testators who own Bitcoin or other cryptocurrency and intend for their beneficiaries to receive them.
It is estimated that millions of Bitcoins have been lost as a result of testators not adequately factoring this type of asset into their estate plan. For testators that have considered their crypto assets, concerns still remain as to whether the executor has the technological ability to access and distribute a cryptocurrency holding.
One possible way for the testator to address this uncertainty is to author a plan with detailed instructions and provide the private key to the executor(s).
A start-up company in the United States has fostered a novel approach to this issue. The company’s product offering uses a blockchain-registered will also known as a “crypto-will” to enable digital assets to be transferred automatically. The idea behind the product is that once a testator’s death record appears in the Death Master File, a computer database of death records made available by the United States Social Security Office, the crypto-will is then activated and executes the wishes of the testator. This potential solution eliminates the need for an executor to administer this portion of an individual’s estate.
As the crypto-will is still very much in the development stage, many questions still remain. It will be interesting to discover how the concept of a crypto-will evolves in the near future.
Thank you for reading,
Ian M. Hull
Ariana Grande has a hit song with “7 Rings”, and the company that owns the rights to the Rodgers and Hammerstein catalogue is enjoying the sound of her music.
The song “7 Rings” is based largely on “My Favorite Things”, the 1959 song written by Rodgers and Hammerstein for the movie “The Sound of Music”. In it, Ms. Grande sings about some of her favourite things. There are no “raindrops on roses” or “whiskers on kittens”, but, rather, “breakfast at Tiffany’s and bottles of bubbles, girls with tattoos who like getting in trouble”. In the song, Ms. Grande laments (or boasts) that her receipts “be lookin’ like phone numbers”. I doubt that Julie Andrew’s character Maria in “The Sound of Music” ever observed that “Whoever said money can’t solve your problems must not have had enough money to solve ‘em”.
The video for the song had 268,264,254 views as of the time of writing.
According to a story in the New York Times, Concord, a music company that owns the Rodgers and Hammerstein catalogue, is to receive 90% of the song writing royalties. This high percentage is thought to be because of the original song’s iconic status, and the extent to which the new song is based on the original.
Composer Richard Rodgers died in 1979, and lyricist Oscar Hammerstein died in 1960. According to The AM Law Daily, their estates sold Rodgers and Hammerstein Organization, which controlled the rights to the complete words of both artists, to Imagem Music Group in 2009 for more than $200 m US.
This is not the first time that modern artists have borrowed from Rodgers and Hammerstein. In 2006, Gwen Stefani sampled from their “Lonely Goatherd” song, also from “The Sound of Music”. There, the song writing duo’s catalogue only received 50% of the royalties.
Have a great weekend.
Medical records are frequently key evidence in estate disputes. Often, a testamentary document or inter vivos transaction is challenged on the basis that the deceased lacked testamentary capacity or the mental capacity to make a valid gift.
The British Columbia Supreme Court recently reviewed the issue of admissibility of medical records within the context of a will challenge. The parties propounding the last will asserted that the deceased’s medical records were inadmissible on the basis that (1) the parties challenging the will were attempting to admit the records for the truth of their contents, (2) the records included third party statements from family members, which was suggested to constitute double hearsay evidence, and (3) the records were entirely inadmissible because they were not relevant, none of them being within weeks of the date of execution of the challenged will.
In Re Singh Estate, 2019 BCSC 272, the estate trustees named in the deceased’s will executed in 2013 only learned of the existence of a subsequent will executed in 2016 after they provided notice to the beneficiaries of the estate that they intended to apply for probate in respect of the 2013 will. The 2016 will disinherited two of the deceased’s eight children (including one of the two adult children named as estate trustee in the 2013 will) on the basis that they had received “their share” in their mother’s estate from the predeceasing husband’s estate. Between the dates of execution of the 2013 and 2016 wills, the deceased had suffered a bad fall and allegedly experienced delusions and had otherwise become forgetful and confused.
At trial, medical records are typically admitted under the business records exemption of the Evidence Act (in Ontario, section 35). Justice MacDonald acknowledged this general treatment of medical evidence, citing the Supreme Court of Canada (at para 48):
While clinical records are hearsay, they are admissible under the business records exception both at common law and under s. 42 of the Evidence Act. The requirements for the admission of medical records as business records are set out in Ares[ v Venner,  SCR 608]. The Supreme Court of Canada held at 626:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.
Subsequent case law cited by the Court addressed the second objection of the parties propounding the will, which provided that the observations that a medical practitioner has a duty to record in the ordinary course of business (including those involving third parties) are generally admissible (Cambie Surgeries Corporation v British Columbia (Attorney General), 2016 BCSC 1896). Lastly, the Court considered the issue of relevance of the medical records and found that evidence relating to the mental health before and after the making of a will can be relevant in supporting an inference of capacity at the actual time of execution of the will (Laszlo v Lawton, 2013 BCSC 305).
After finding the medical records to be admissible as evidence of the deceased’s mental capacity (and in consideration of all of the available evidence), the Court declared the 2016 will to be invalid on the basis of lack of testamentary capacity.
Thank you 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!
This blog was written in collaboration with, and with thanks to Yasmin Vinograd of Merovitz Potechin LLP .
In some cases, an incapable person residing outside of Canada has assets in Canada. Can a guardian appointed outside of Canada have access to the incapable’s Canadian assets? By extension, would a Guardianship Order made outside of Canada be recognized in Ontario?
In Ontario, this scenario is dealt with in the Substitute Decisions Act, 1992 (“SDA”). Section 86 of the SDA provides a mechanism by which orders made by a court outside of Ontario to appoint a guardian of property or of the person may be recognized or “resealed” in Ontario. Subsections of s. 86 specify that:
s.86(1): a foreign order is “an order made by a court outside Ontario that appoints, for a person who is sixteen years of age or older, a person having duties comparable to those of a guardian of property or guardian of the person.”
s.86(2): “Any person may apply to the court for an order resealing a foreign order that was made in a province or territory of Canada or in a prescribed jurisdiction.”
s.86(3): an applicant seeking to have the court reseal the foreign order is required to file a copy of the foreign order, along with a certificate signed by registrar, clerk or other officer of the foreign court stating that the order is unrevoked and is of full effect.
The effect of these provisions is that a guardianship order made by a foreign court will be recognized and enforceable in Ontario.
Sounds easy enough, doesn’t it? Unfortunately, it is not.
I had previously blogged about the possibility of resealing guardianship orders made in other provinces and territories. The issue arises when trying to reseal a guardianship order made outside of Canada. The problem is that Ontario has yet to prescribe any other country as a “prescribed jurisdiction” for the purpose of section 86(2). This begs the question: can the court reseal a foreign guardianship in the absence of the list of prescribed jurisdictions?
When faced with this exact issue in Cariello v Perrella, 2013 ONSC 7605, the court refused to apply section 86 to reseal a guardianship order made in Italy. Justice Mesbur stated:
It seems to me that unless and until Ontario creates a list of “prescribed jurisdictions” there is simply no legislative basis on which I can apply s. 86. This is not a case where the statute inadvertently fails to deal with an issue. Here, the province has simply failed to take the regulatory steps necessary to create a list of prescribed jurisdictions to which s.86 would apply. I have no idea of the province’s intentions in that regard. I fail to see how I can simply assume Ontario would designate Italy as a prescribed jurisdiction when it finally creates a list of prescribed jurisdictions under the SDA. I have no basis to conclude that Ontario has any intention of having s.86 apply to any jurisdiction other than another Canadian province or territory. Section 86 cannot apply.
In light of the Cariello decision, it appears that section 86 and the mechanism it provides cannot be used to reseal an order made by a jurisdiction outside of Canada. What, then, is a guardian to do if the incapable has assets in Canada that need to be accessed?
There are two ways in which this could be addressed.
The first is to bring an application to have the guardianship order recognized as a non-monetary order, pursuant to the Supreme Court of Canada’s decisions of Morguard Investments v De Savoye,  3 SCR 1077 (SCC), Beals v Saldanha, 2003 SCC 72, and Pro Swing Inc v ELTA Golf Inc, 2006 SCC 52. As of now, there is no decision that applied the SCC’s test of real and substantial connection in the context of a guardianship order. It remains to be seen whether an Ontario court would be open to recognizing a guardianship order on that basis and what the Public Guardian and Trustee’s position will be on such an application.
The second option is to commence a new guardianship application in Ontario. The evidence of incapacity in the foreign jurisdiction may be useful in such an application, but it would probably need to be updated to reflect the current status of the incapable and to demonstrate his or her incapacity. The “new” guardianship application will need to conform to Ontario’s requirements under the SDA, including the filing of a Management and/or Guardianship Plan(s), service on required persons, and naming of specific respondents in the notice of application.
Trends seem obvious in hindsight – but anticipating them before others has made many people very wealthy. They’re the ones who bought Apple shares for $1 in 2003 and watched the price exceed $200 in 2018. Or the ones who bought Blockbuster Video stock in the 1980s and sold it at its peak in 2002 before its 10-year decline into Netflix-induced irrelevance.
We’ve seen this firsthand, having been involved in the estates of many who “got in early”, moved ahead of the curve and capitalized.
While societal norms and consumer habits are always changing, not every change is one you can cash in on. For example, manual razor sales from stores fell by 5.1% year-over-year – their third straight year of decline. A key reason behind the decline is a simple one: people are shaving less.
Razor manufacturer Gillette says that men shaved an average of 3.2 times per week, compared to 3.7 times per week a decade ago. Stubble is now an acceptable look and more men are growing out their beards. CNN wrote about it recently.
While this is certainly a trend, razors continue to be sold and shaving product companies are adapting (with strategies such as lower prices and a move into beard grooming products). It’s likely not a game-changer.
Breakfast cereals are the same. Sales are down 11% over the past five years as people look for more natural, healthy alternatives – or the takeout convenience of breakfast sandwiches. But take one look down the grocery aisle and you’ll see that cereals are a long way from becoming the Blockbuster Video of food.
So, what change will be monumental?
Where should we be looking to find the next “big thing”, like Amazon and Uber? Like you, I don’t have a crystal ball, but here are my two picks for big changes that could disrupt our world and create opportunities.
- Automobiles: More than 30,000 people continue to die each year in U.S. auto accidents (Canada is typically about 10% of these numbers, so about the same rate). People will look back at the 20th and 21st centuries as barbaric for the number of lives lost crashing metal into metal. We know that driverless cars (and virtually risk-free driving) are coming, but what else will change (auto insurance, in-car entertainment options, ownership models, a declining need for personal injury lawyers)? There could be many related growth trends.
- Farming and meat: Vegetarianism and veganism are growing – along with our ability to manufacture artificial meat. That combination may be enough to turn the traditional food industry on its head. The trick is to identify the companies that could potentially dominate if the trend to less real meat continues.
There are many other possibilities of course. Have you spotted any? Are you moving ahead of the curve?
Thanks for reading!