Tag: hull

19 Sep

“Death Row Dinners” – Bad Taste?

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A London “pop-up” restaurant planned to recreate and sell dinners requested by death row prisoners as their last meal.  However, criticism lead to the event’s possible cancellation before it was even held.

According to the organizers, the event was to serve “a five course feast of their culinary twists on some of death rows [sic] most interesting and popular last dinners”.  The meal was to cost £50.

The MailOnline reported that the event was promoted using images of men, apparently prisoners, with menus around their necks.  (The images no longer appear on the event’s website.)  This, along with the general concept, led to a strong backlash of criticism. In response, the organizers posted a statement on their website, indicating that they are “shocked and saddened” by the response, and that they are sorry for any offence caused. The statement goes on to say that in light of the response, the organizers are considering their next steps.

It appears that the genesis of the event was innocent enough. The organizers explained that the purpose of the event was to explore the “age-old” question of what would your last meal be.  However, many were offended by the use of the inmate’s images, while others were outraged by the entire concept.

The fascination with last meals is not a new one.  In 2006, New York artist Jonathon Kambouris commenced the “Last Meals Project”.  He matched the mug shots of convicted murders with the last meals that they ate.  As observed in the New York Daily News, “No matter your thoughts of the death penalty, there is something fascinating yet creepy about the last meals of murderers.”

The last meals of death row prisoners have also been the subject of dietary studies.  A 2012 Cornell University research project analyzed 247 last meal choices, and found that last meals are typically not very health: they are, on average, high in calories. (Surprisingly, however, 26.9% of the condemned requested a salad to go with their meal.)

Bon appétite.

Paul Trudelle

18 Sep

UPDATE: Cowderoy v. Sorkos Estate Revisited Revisited

Hull & Hull LLP Estate & Trust, Hull on Estate and Succession Planning Tags: , , , , , 0 Comments

On September 7, 2012, we blogged on the trial decision of Cowderoy v. Sorkos EstateAt trial, the court found that the deceased had repeatedly promised his step-grandchildren his farm and two cottage properties.  Applying the doctrine of proprietary estoppel, the trial judge ordered that the promised properties be conveyed to the grandchildren. This had an effect on a separate proceeding, being a claim for dependant’s support by the deceased’s spouse.  There, the trial judge considered the size of the estate, excluding the farm and cottage properties.  He also, without explanation, reduced a bequest to the spouse from $250,000 to $150,000.  The trial judge had also denied a request to have the two proceedings tried together.

The decisions were appealed, and the appeal decision was released on September 3, 2014.

The Court of Appeal received fresh evidence to the effect that the transfer of the properties to the step-grandchildren would leave the estate without sufficient assets to satisfy the spouse’s dependant support claim. 

With respect to the issue of consolidation, the Court of Appeal held that the judge erred in not consolidating the claims. 

With respect to the proprietary estoppel claim of the step-grandchildren, the Court of Appeal upheld the finding of proprietary estoppel. However, the Court of Appeal held that the promise was to bequeath the properties upon the deceased’s death, not to convey the properties. This had an impact on the appropriate remedy.  The properties were to be deemed to have been bequeathed to the step-grandchildren. The upshot of this is that the properties remained in the estate, and may be subject to the dependant support claim of the spouse.

I say that the properties “may be” subject to the dependant support claim because of the impact of s. 71 of the Succession Law Reform Act.  This section provides that where a deceased has entered into a contract to bequeath property, the property is not liable to a dependant support order, “except to the extent that the value of the property exceeds the consideration therefor”.  This would require that the value of the consideration for the properties, being the value of the services provided by the step-grandchildren to the deceased, be determined, along with the values of the properties.  If the values of the properties exceeded the consideration, then this amount would be available to be charged with the dependant support order.

In the end, the Court of Appeal ordered a new trial of the spouse’s dependant support claim, taking into account the value of the properties, and to determine the extent, if any, to which the properties are to be attached to secure any dependant’s relief order.

Thank you for reading.

Paul Trudelle

16 Sep

Best Time to Argue Your Case?

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Does justice depend on what the judge had for breakfast?  To some extent, the answer is, perhaps, yes.  Or, perhaps more accurately, it is dependent on when they had breakfast and when justice is sought.

In a 2011 study by Shai Danziger, Jonathan Levav and Liora Avnaim-Pesso, it was found that  in the context parole hearings, there is a good time and a bad time to have your hearing held.

The study, published at Extraneous factors in judicial decisions, Proceedings of the National Academy of Sciences of the United States of America, vol. 108, no. 17 (April 26, 2011), found that the percentage of “favourable” rulings dropped gradually from 65% to 0% as the morning went on. The favourable ruling percentage shot up again after the morning break, and the afternoon break, only to drop as the day’s sittings went on.

The authors conclude that their results indicate that extraneous variables can influence judicial decisions. Further, they conclude that their findings support the view that “the law is indeterminate by showing that legally irrelevant situational developments – in this case, merely taking a food break – may lead a judge to rule differently in cases with similar legal characteristics.” 

It is not clear how this may apply to civil litigation, where one litigant’s “favourable decision” is another litigant’s “unfavourable decision”.

Thanks for reading.

Paul Trudelle

18 Jul

When It Comes To Costs, Location Matters

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In recent costs ruling, a Kingston court considered a claim for costs by out-of-town counsel.  The court concluded that the losing party should only pay costs based on what local counsel would charge.

The issue on the motion was the removal of plaintiffs’ counsel due to an alleged conflict.  As the matter could not be resolved, the defendant brought a motion seeking counsel’s removal.  At the “eleventh hour”, counsel for the plaintiffs agreed to step aside.  The defendant sought her costs of the motion.

The court agreed that costs of the motion should be awarded to the defendant. With respect to the scale, the court held that partial indemnity costs were appropriate, with an award of substantial indemnity costs being reserved for special and rare circumstances. 

With respect to quantum, the court noted that the deceased lived in Picton, Ontario, and that the action was commenced in Kingston, Ontario.  The defendant retained Toronto counsel, with an hourly rate of $385, and $560 per hour for senior counsel.  (It is not clear from the decision what the hourly rate of local counsel was.)  The court stated that while the issue was not a simple one, out of town counsel were not required.  “While I am sure that her counsel are worth every penny to [the defendant], a costs award here must consider what the plaintiffs ought to have expected to pay in conducting themselves as they did. In my view, it would have been reasonable for them to assume that her costs were roughly the same as theirs – that it, at the general Kingston rate for civil and estate litigation.  As an access to justice issue, people should expect to pay legal costs contextualized by the communities in which they live and work.”

It should be noted that one of the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, which sets out factors that the court may consider in exercising its discretion to fix costs, is “the amount of costs that an unsuccessful party could reasonably expect to pay in relation to a step in the proceeding for which costs are being fixed”.

In another case commenting on “out of town” counsel, the court disallowed travel time.  “Although the Applicant is fully entitled to retain out of town counsel, the cost of the time for counsel to travel to Kitchener to argue the motions should not be visited upon the Respondent.”  (However, there are many cases on this issue: some allowing travel costs and some disallowing them.)

Have a great weekend, wherever you are.

 

Paul Trudelle

 

17 Jul

Canadian Alzheimer’s Study Finds Gene That Delays Onset of Alzheimer’s

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An exciting recent Canadian study has found a genetic variation that delays the onset of Alzheimer’s by as much as four years.

The study, undertaken by Judes Poirier and his team at the Douglas Mental Health University Institute and McGill University in Montreal, found a variant of a cholesterol-regulating gene which can delay the onset of Alzheimer’s.  Previous studies have found a link between cholesterol and Alzheimer’s. This study found a variant to the normal gene, and found that those with the variant, about 25% of the population, develop Alzheimer’s about four or five years later than those without it.  According to the press release,  “Over the past two decades, research efforts around the globe have focused on identifying genetic and environmental factors responsible for causing or accelerating the progression of the common form of Alzheimer’s disease. However, little was known about possible protective genetic factors that can delay or even prevent the disease onset in humans.”

The next step would be to build on this research by developing a drug which would mimic the effect of the genetic variation for non-carriers.  In particular, scientists are looking to develop a brain-specific cholesterol-regulating statin.

According to the report, the Alzheimer Society of Canada is interested in the research.

There is currently no preventive treatment for Alzheimer’s.

Thanks for reading.

 

Paul Trudelle

 

16 May

Q. When Can A Letter Be A Will?

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A.         When it contains “a deliberate or fixed and final expression of intention as to the disposal of property upon death”.

This question, its answer, and the application of the answer to particular facts was considered in Casavechia Estate (Re), 2014 NSSC 73 (CanLII).

There, the deceased died on September 1, 2012. He died leaving a Will dated October 2, 1996.  He also died leaving a handwritten letter dated November 14, 2010.  The letter purported to give the deceased’s daughter a lakefront building lot to be carved out of the deceased’s property when it was sold.

The issue to be decided in the case was whether the letter was a valid holograph codicil.

There was no issue that the technical requirements of a valid holograph will or codicil were met: the letter was entirely in the handwriting of the deceased, and was signed by him.

However, to be valid, the letter must also demonstrate a testamentary intention or animus testandi.

The court found that the letter used language that was “of a more formal and ceremonious nature that one would expect of an ordinary note from a father to his daughter.”  Further, the deceased placed the letter in a sealed envelope, and asked his daughter not to open it. These facts, it was said, suggested that the letter was “a significant document”. 

Further, although the letter spoke of a “gift” from the deceased to his daughter, the court implied that the gift was only to take effect after the death of the deceased. 

The fact that the note contained a phrase stating that “I hope this will be agreed with all concerned” did not make the gift conditional on such agreement.  Rather, the phrase was found to be hope that there would be no disagreements when the deceased’s wishes were carried out after death. 

The note was also consistent with statements made by the deceased that he intended to give the property to his daughter.  There was some evidence that the deceased, at certain points, intended to sell the entire parcel, including the lakefront portion, if the price was right.  The court stated that this did not take away from the effect of the letter, saying that the intent to make the gift did not interfere with the deceased’s right to deal with the property during his lifetime. 

Finally, the court noted that there was good reason for the deceased to make the gift: in the letter, the deceased expressed that he had felt guilty about not giving his daughter a wedding or honeymoon gift.

The court concluded that the letter was a valid holograph codicil.

Unfortunately, the letter did not describe the location or size of the lot to be given to the daughter. The court left it to the parties to try to reach an agreement on the exact location and size of the lot in accordance with existing subdivision requirements.

Have a happy, safe long weekend.

Paul Trudelle

15 May

Time Limits On Bringing Dependant Support Claims Against an Estate

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A recent decision of Penny J. (Re Estate of Viola Eva Gyorgy, unreported, May 6, 2014) reviews the issue of limitation periods as they apply to dependant support claims.

Under the Succession Law Reform Act (“SLRA“) s. 61(1), no application for dependant support may be made after six months from the grant of letters probate of the will or of letters of administration. Section 61(2) of the SLRA provides that the court may allow an application to be made any time as to any portion of the estate remaining undistributed at the date of the application.

As noted in Gyorgy, the Supreme Court of Canada in Gilles v. Althouse, 1974 CanLII 206 confirmed that the six month limitation serves to limit a claim made after six months to the remaining, undistributed portion of the estate. 

As stated by Penny J., “In my view, the six month limitation does not, therefore, operate like a typical limitation to bar any proceedings at all.  The court is afforded discretion to grant leave to commence application provided it does not involve assets of the estate which have already been distributed.”

Penny J. went on to consider the fact that the Applicant had explained why the application was not commenced within the six month period following probate, and found that there was no prejudice in allowing the application to proceed with respect to the undistributed portion of the estate.  (None of the assets of the estate had, in fact, been distributed.)  Leave to proceed with the application was granted.

The decision also addresses other common issues that arise in dependant support claims, such as interim support, removal of the existing estate trustees, and the right of estate trustees to be indemnified from the estate for costs of defending the application.

I will post the link to the decision once it is available.

Thanks for reading.

Paul Trudelle

 

13 May

Facing Dementia

Hull & Hull LLP Elder Law Tags: , , , , 0 Comments

I recently came across a website created by Alzheimer’s Research UK that provides simulated insight into the real effects of Alzheimer’s disease.

In its application, Alzheimer’s Research UK harnesses “the power of Facebook to illustrate some of the symptoms experienced by the 820,000 people in the UK affected by dementia”.

According to the Alzheimer Society of Canada, in 2011, 747,000 Canadians, or 14.9 % of Canadians over 65, were living with cognitive impairment, including dementia.  By 2031, if nothing changes, this figure will increase to 1.4 million Canadians.  The combined direct (medical) and indirect (lost earnings) costs of dementia total $33 billion per year, and, if nothing changes, will climb to $293 billion per year by 2040.

The Alzheimer’s Research UK website uses your Facebook account to replicate and illustrate the effects of dementia.  The dementia awareness tool presents an overlay using your Facebook photos and posts to show how dementia could affect you and your memories.

The experience is frightening, and eye-opening.

Their message is that Alzheimer’s is not a normal part of ageing, but is caused by disease.  Diseases have been beaten in the past, and with support, can be beaten again. 

The Alzheimer’s Research UK team encourages browsers to experience the simulation, and then spread the word by sharing with one’s Facebook family and friends.

Thank you for reading.

Paul Trudelle

28 Mar

International Children’s Memorial Place

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Prince Edward Island is the home of the International Children’s Memorial Place (“ICMP”).

The mission of the ICMP is to promote and foster the health and well-being of individuals and families who grieve for the physical and emotional loss of a child.

ICMP operates a beautiful 12 acre park dedicated to the memory of lost children. It features a walking trail with reflection points, a path of remembrance, paved with engraved bricks, a labyrinth, and a memorial forest.  The stunning natural setting is a sanctuary for the mind and soul, and allows the visitor to take advantage of the healing power of nature.

The ICMP was founded in 1999 by my cousins, Bill and Myra MacLean, following the death of their son, Trevor MacLean. (Every summer during my childhood, I would spend a few weeks in PEI, my mother’s birthplace, hanging out and getting into mischief and muddy in the red soil with Trevor.  It was the best of times.)

The organization is a non-profit organization, and depends on donations. See the Donations page for more information.

Have a great weekend.

Paul Trudelle

 

18 Oct

“Ordinarily Occupied” When Not Occupied

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Yesterday, I blogged on a case that considered whether a cottage could be considered a second “matrimonial home” for equalization purposes under the Family Law Act. Today, I would like to consider a case that addresses whether a home that was vacated by a claimant prior to the spouse’s death could be considered to be a “matrimonial home”.

In Brash v. Zyma, 2013 ONSC 2800 (CanLII), the 90 year old widow vacated the home and moved into an assisted care facility as a result of her medical condition. Her husband remained in their home. The husband subsequently died. The surviving spouse commenced an equalization claim under the Family Law Act. The husband’s estate argued that the home was not a “matrimonial home” at the time of death, and therefore the value at the date of marriage should be deducted from the husband’s NFP.

The court considered the wording of s. 18(1) of the Family Law Act, and the question of whether the fact that the spouse was not residing at the property on the date of death impacted on her claim for equalization.

Section 18(1) reads: “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”

The court had to consider whether, at the time of “separation”, the property was ordinarily occupied by the wife and her spouse. The court noted an earlier decision of Gray v. Brusby, 56 R.F.L. (6th) 165, where Greer J. stated that “there are many cases where only one of the spouses remains in the home, either on consent of the parties or under court Order. In those cases, the matrimonial home remains such for NFP purposes.” The court went on to observe that physical separation does not equate to a separation of the parties. Here, the parties never intended to separate, or ceased to be married, or ceased to be a couple, or commenced living their lives without the other. 

As the widow ceased to reside in the matrimonial home as a result of her deteriorating medical condition, and not by reason of any intention on her part, the court concluded that the home was “ordinarily occupied” by her on the date of death, and thus was a matrimonial home, and the value of the home at the date of marriage could not be deducted in the equalization calculation.

Have a great weekend.

Paul Trudelle

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