Tag: General Interest
About 90,000 people die in Ontario every year. Of those, about 16,000 are reported to the Coroner’s Office (or roughly 17%). According to the Office of the Chief Coroner Report for 2009-2011, in 2010, there were 16,415 coroner’s investigations.
Many people do not want to be autopsied – whether it is because of religious beliefs or other personal wishes. However, in Ontario the range of cases which are supposed to be reported to the Coroner are quite broad.
Under the s. 10 of the Coroner’s Act, anyone who is aware that person died of the following causes is required to report that death to the Coroner’s Office:
(iv) misconduct, or
(b) by unfair means;
(c) during pregnancy or following pregnancy in circumstances that might reasonably be attributable thereto;
(d) suddenly and unexpectedly;
(e) from disease or sickness for which he or she was not treated by a legally qualified medical practitioner;
(f) from any cause other than disease; or
(g) under such circumstances as may require investigation.
In addition, there are a number of other situations where autopsies are actually prescribed by legislation – including when a woman dies as a result of pregnancy or childbirth, when a person dies while in custody, if a person dies in hospital and a medical mistake is suspected, or when an employee dies on the job as a result of a workplace accident.
Once a death is reported, the coroner will then decide, usually by phone, whether to attend at the scene in order to look at the body and determine if an autopsy should be performed.
The Ontario Coroner’s Code of Ethics does provide that consideration should be given to the beliefs or religious views of the deceased, but ultimately it is always up to the Coroner to make the call:
Coroners in the exercise of their duties, shall respect the beliefs and/or religious views of the deceased, and where an investigation is for reason only that the deceased person has not had medical attendance prior to the hour of death, shall recognize that the exercise of this free choice is not in itself reason for further investigation or autopsy, unless there is evidence of other conditions stipulated in section 10 of the Coroners Act, 1990.
In California, the State of California Government Code Section 27491.43 goes further and provides that unless foul-play or a contagious disease are suspected as the cause of death, if a person has prepared a “certificate of religious beliefs” stating that they oppose autopsies – which must be signed by the Deceased and witnessed by two people – the Coroner shall not perform the autopsy.
In Ontario it is always a matter of balancing the public interest with the private wishes of the individual. Like California, in cases where foul-play or a contagious disease is suspected, it would be very unlikely that an autopsy could be avoided.
For those who have an objection to being autopsied, the best advice is to make your wishes known to your next-of-kin. You might also consider preparing a document similar to the Certificate of Religious Beliefs, stating that you object to being autopsied. While there is no guarantee that it will be effective in preventing an autopsy, it may influence the Coroner in their exercise of discretion.
Thanks for Reading!
When a person dies, one of the first tasks that is often attended to is writing their obituary. The task of summarizing a person’s life in a few short words can often be a difficult and stressful job for those involved. When it comes to writing the obituaries for famous individuals, the difficulty involved can often be multiplied.
In a recent article published by the BBC, the author details the difficult balancing act that publications must do when writing obituaries for famous individuals. As the author points out, publications must on the one hand be respectful of the individual who died, while at the same time attempt to write an interesting story for the public.
At the center of the story is the recent controversy surrounding the obituary published by the New York Times for the prominent scientist Yvonne Brill. As the story points out, many people took issue with the paper beginning the obituary by writing “(s)he made a mean beef stroganoff, followed her husband from job to job and took eight years off from work to raise three children”, saying that the obituary undervalued Brill’s scientific work by placing so much emphasis on her domestic life. The controversy was enough for the paper to re-publish the obituary with a revised introduction.
Obituaries for famous individuals need not always be a serious affair however. When the UK’s largest freshwater fish, Benson (who was famously caught over 60 times), died in 2009, the Guardian published his obituary. The obituary summarizes the fish’s famous reputation, and finishes with the following encapsulation of a life well lived:
“Benson, carp, born 1984, died 2009. Leaves behind numerous widows, thousands of offspring and 60-odd lovelorn captors.”
Have a great weekend.
I recently came across an article on CNN, found here, which discussed how a painting, once thought to be painted by one of Rembrandt’s pupils, was found to be painted by the famed Dutch master himself. As such, the painting is now worth more than $30 million dollars.
This article made me consider the implications, not only of the increased value such findings can create, but also the technique employed to ascertain who actually painted the picture. The article notes that x-rays, an analysis of the techniques used, as well as circumstantial evidence, had all been employed to determine the painter.
According to s. 4(1)(a) of the Succession Law Reform Act, amongst other requirements, a Will is not valid unless, “at its end it is signed by the testator or by some other person in his or her presence and by his or her direction”. Will challenges often arise on the basis that the testator’s signature is not their own. In other words, individuals challenging a Will, claim that the testator’s signature was forged.
When such a claim arises, handwriting experts can be retained to determine the validity of a testator’s signature. Although it is commonly understood that the handwriting analyst uses subjective criteria, the fact is that technological advances, can be even more adept at determining the authenticity of a testator’s signature.
Not to be confused with Vincent Van Gogh, this is not a crazy idea. In fact, as discussed in one of our prior blogs dating back to 2010, discussion arose as to the use of this technology in the estates field. It will be interesting to see how advances in this technology can assist with the pursuit of justice.
I was recently watching an episode of Jeopardy. I generally tune in for pure entertainment, with an added bonus of possibly learning. This time, I was shocked to see a professional angle as well.
Prudential sponsored Jeopardy’s ‘Tournament of Champions’, and has created an online game that addresses financial issues largely related to retirement and life planning for an aging population. If you think you are a master at trivia, try your hand at the game here. What I learned by playing this game is how many of the issues we see facing those planning for a longer or more satisfying retirement can lead to a greater estate and potentially more litigation.
It is no secret that as a society we are living longer. We are bombarded on a daily basis with advice to prepare for that inevitability. What did surprise me was the variety of issues that are presented in Prudential’s online game that can have an effect on estate planning. For instance, according to Prudential;
· 56% of workers have reported that neither they nor their spouse have calculated how much is needed for retirement;
· 33% of newborns born today are expected to live to 100;
· The average American who lives to 100 will spend $3.5 million dollars over their lifetime;
· 74 million baby boomers are set to retire in the US alone over the next 20 years; and
· Experts recommend saving enough for retirement, so that you can live to 100.
With so many considerations to take into account when planning for life, it may come as a shock that there is any money left for after death planning. Is it fair to expect that the more information available to us about retirement and estate planning, the better decisions we will make? Or is too much information crippling?
Nadia M. Harasymowycz
Receiving one last message from a loved one who has passed can provide comfort and closure. People used to leave these last letters, video, or audio messages with a friend, family member, or estates lawyer.
CNN reported recently that there are companies that enable you to send messages through social media tools after you die. DeadSocial is a free service that has several options available to allow you to send out your final words. You can send out one final message, or a series of messages on specific dates, such as an anniversary or a birthday. It can also release unseen videos or audio messages. For now, all DeadSocial messages that are released are public, but the company plans to provide an option for sending private messages. As you would when you write a will, you must select an Executor. The Executor advises the company when you have died, so your messages can start to be released.
Another company, _LivesOn, is developing a service that tweets for you after you die. The Twitter tool monitors your specific habits and syntax and replicates your style and voice. The creator of the service is an advertising agency, called the Lean Mean Fighting Machine.
To those who think that these uses for social media are strange, a partner at Lean Mean Fighting Machine has this to say: “the afterlife is not a new idea, it’s been around for quite a long time with all the different versions of heaven and hell. To me this isn’t any stranger than any of those. In fact, it might be less strange.”
While looking through the news recently one story in particular caught my attention. As reported by the Telegraph, a pet tortoise was recently found alive in a locked store room in Brazil more than 30 years after going missing. According to the article, the owners of the tortoise had assumed that the tortoise had run away 30 years ago after the door was left open. It was only after their father died recently that the children began to clear out a room full of old electrical items that was always kept locked. While emptying out the room, the tortoise was found alive and well. It is believed that the tortoise stayed alive by eating termites found in the wooden floor.
But how, you ask, does this story in any way relate to estates? Is this not just an interesting story that you wanted to share? To this I would say, fair comment. Through the power of the hypothetical however this story can be related back to estates.
And here is the hypothetical: what if this tortoise had the same legal rights as a human being, was an Ontario tortoise, and was left a bequest 29 years ago under Grandma Tortoise’s will? Would these funds still be available for our tortoise to enjoy after all of these years?
Assuming that this tortoise’s loved ones had not gone through the process of declaring the tortoise dead in accordance with the Declarations of Death Act, and this was only ever a “missing tortoise”, a prudent Estate Trustee in administering Grandma Tortoise’s Estate would have paid the bequest left to the tortoise into court.
Rule 72 of the Rules of Civil Procedure is the rule that governs the payment of money into court. Luckily for our tortoise, had the Estate Trustee paid the bequest into court, these funds would likely have incurred interest for all of these years and our tortoise could be a rich tortoise.
Unfortunately for our tortoise, had the Estate Trustee not paid these funds into court, and Grandma Tortoise’s Estate no longer had any assets left to satisfy the bequest, our tortoise may be out of luck. It is arguable that as a result of the Limitations Act, 2002, and the 15 year ultimate limitation period established by s. 15(2), any claim that our tortoise may have had against the Estate Trustee for not paying the funds into court may now be statute barred.
Should this happen, our tortoise may have to get creative in their legal argument. Section 15(4)(a) of the Limitations Act, 2002 provides that the 15 year ultimate limitation period does not run against a person who is incapable to commence the proceeding as a result of their physical condition. Maybe our tortoise can equate being locked in a store room for 30 years with being physically unable to commence a claim.
Have a great weekend.
A recent article in The Washington Times, found here, discusses the use of an Autopen by President Obama to sign the most recent fiscal cliff bill while on vacation in Hawaii.
According to the CBC, an Autopen is a desk-sized contraption that is capable of copying a person’s signature. Used by MP’s, a piece of paper must be placed under the pen, a gas pedal must be stepped on, and the Autopen replicates the signature. This is all done in the absence of the actual person signing the document.
According to s. 4(1) of the Succession Law Reform Act (“SLRA”), a will may not be valid unless: (a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction; (b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and (c) two or more of the attesting witnesses subscribe the will in the presence of the testator.
Thus, the question worth considering is whether an Autopen, or any similarly advanced piece of technology, could ever be used to meet the requirements under the SLRA? One obvious deficiency is that the testator is clearly not present when signing the document, hence the whole purpose of the Autopen. But what if camera’s were installed in the same room as the Autopen such that the testator was virtually present? A bit far-fetched, I admit. A second deficiency is that the testator does not actually sign the will, as technically that is done by the Autopen. However, consider the following.
In Clarke Estate (Re) at issue was whether a paraplegic, using a stamp to sign his will, constituted the act of signing the will under the SLRA. Justice D.M. Brown held that the paraplegic testator complied with the requirements under the SLRA. Relying on Re Bradshaw Estate,  N.B.J. No. 709 (P.C.), a decision based on the New Brunswick Wills Act, the applicable test applied was as follows: (i) were the markings on the will made by the testator, and (ii) were they intended as his signature and to represent the best that the testator could do by way of writing his name under his physical circumstances?
The circumstances surrounding the inability of the testator in Clarke Estate (Re) are significantly different than those of President Obama. Clearly the law has to be able to accommodate the former situation. However, it is interesting to consider in what further circumstances could the New Brunswick test be applied in Ontario. Specifically, could the Autopen ever be used to represent the best that the testator could do by way of writing his name under his physical circumstances?
Yesterday, I read in the Toronto Star about a couple that resolved last year to make the year a year of “firsts”. They resolved to learn, make or experience 365 new things in 365 days. They blogged about their progress in knocking items off of their bucket list at http://www.365thingsin365days.com/.
Inspired by their story, yesterday I went indoor rock climbing with my two teenaged sons at True North Climbing at Downsview Park. We had a blast, and were very proud of our achievements. We tried a new adventure that took us out of our comfort zone. We had a great time, got a little exercise, and bonded over what is a combination of a personal challenge, and a trust exercise. (Sort of like that exercise where you fall backwards, hoping to be caught by the group. Only in this case, the fall is from 10 metres, with your young son at the bottom, controlling (or not) your fall.)
In our Hull and Hull blogs this year, we hope to do something like the couple reported on in the Star did. We want to expose our readers (and ourselves) to new things every day: new lessons to learn, new ways of looking at old issues, new cases, new approaches to difficult estates and trusts issues.
We value you feedback. Please comment on what you read, or what you would like to read.
Please stay tuned. It is going to be a great year.
On occasion, I am asked to act as a private arbitrator in the area of estates, trusts and capacity disputes through Hull Estate Mediation. Arbitration is similar to litigation in that it is an adversarial dispute resolution process overseen by a neutral third party. However, in arbitration, the trier of fact is the arbitrator instead of a judge. The parties also have a lot more control over the process and are granted the opportunity to choose who will arbitrate the dispute. For certain disputes, arbitration can be a preferred alternative to litigation and provide for efficient and timely resolutions.
In Ontario, arbitrations are regulated by the Arbitration Act (the “Act”). The Act provides a framework for the arbitration process, including the choosing of tribunals, the conduct of arbitrations, awards, terminations and remedies. The Act is somewhat unique, as it allows for the “contracting out” of almost all of its provisions though an arbitration agreement, defined as “an agreement by which two or more persons agree to submit to arbitration a dispute that has arisen or may arise between them.” These agreements are powerful and demand careful drafting, as they set out the provisions that bind the parties and the arbitrator.
Unless the arbitration agreement provides for a multi-member tribunal, the tribunal is made up of a single arbitrator. For multi-member tribunals, a chair is appointed whose decision is deferred to in the absence of a majority decision.
One of the most appealing aspects of arbitration is the freedom to pick and choose the appropriate procedures and protocols. Subject to some exceptions laid out in the act, the parties have the opportunity to decide on the format of the arbitration themselves. As arbitration allows for the formality of the court process to be avoided, it is often a more cost-effective and less time consuming endeavor than litigation.
The arbitrator or multi-member tribunal has the authority to make interim orders and deliver a final decision. The Act makes arbitration decisions (called “awards”) legally enforceable and subject to a limited right of appeal, which can be contracted out of as well.
Arbitration is also a more private process than litigation. Court proceedings and judicial decisions are generally open to the public while arbitration agreements often contain provisions that allow for the proceedings and award to remain confidential.
Thanks for reading.
Planning and preparation are constant refrains in the world of estate law. I often find myself preaching the importance of having well-drafted and up to date testamentary documents as a means of avoiding the expensive and stressful litigation process that can arise from inadequate planning. I recently watched a television program, however, that leads me to believe that there is such a thing as too much planning: National Geographic Channel’s Doomsday Preppers.
The show focuses on the efforts of members of the “prepper” movement: those who are dedicated to preparing for the end of civilization. Each person showcased believes in some form of impending apocalypse brought on by economic collapse, terrorist attack, or natural disaster. In order to ensure survival in the post-apocalyptic world, they obsessively stockpile supplies, train themselves and their families, and build incredibly elaborate shelters.
While the people on the show have taken things to the extreme, being prepared for severe storms and power outages is obviously a good idea. The Government of Canada has an extremely in-depth and helpful website dedicated to emergency planning that can help you make your own less extreme preparations.
As one person on Doomsday Preppers noted, some people believe that the world is set to end later this month, as predicted by the ancient Mayan calendar. Despite this, I think I will use this blog post as another reminder to make sure your estate plan is up to date and properly conveys your intentions. A recent article in the Globe and Mail offered some very good and concise advice: “get professional help, set realistic goals, create an achievable plan, try to maximize returns (and minimize tax) and make sure all the necessary paperwork … is complete.”
You know, in case we’re still here on December 22.