Tag: hull

27 Mar

Hull on Estates Episode #325 – Top Cases of 2012

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 Listen to: Hull on Estates #325 – Top Cases of 2012

Today on Hull on Estates, Stuart Clark and Natalia Angelini discuss two of the most interesting cases of 2012 – Rasouli v. Sunnybrook Health Services Centre and another case dealing with proprietary estoppel.

If you have any questions, please email us at hull.lawyers@gmail.com or leave a comment on our blog page.

Click here for more information on Stuart Clark.

Click here for more information on Natalia Angelini.

12 Mar

What a Difference a Day Makes

Hull & Hull LLP Estate & Trust, Litigation Tags: , , , , , , , 0 Comments

Sometimes, timing is everything.

In Re Barbeau, the deceased died on September 17, 2011 at 5:40 am. He died leaving a Will that left the residue of his estate to his spouse if she survived him for a period of thirty days. If she did not survive him for thirty days, his estate would pass to one of his spouse’s daughters. Under the spouse’s Will, her estate passed to her five children.

As fate would have it, the deceased’s spouse died on October 17, 2011 at 4:45 pm.

The question the court had to grapple with was whether the deceased’s estate passed to his spouse, and therefore her five children under her Will, or to the one daugther, under his Will.

In the decision, the court set out the two possible interpretations: either the thirty days are calculated as thirty 24-hour periods commencing on September 17, 2011 at 5:40 am, or applying the analogy of the Rules of Civil Procedure, the thirty day period commenced on the day after the date of death. If the second interpretation prevailed, what was the effect of the spouse not being alive for the entire thirtieth day?

The court noted the purpose of such survivorship clauses: to prevent the application of s. 55 of the Succession Law Reform Act (survivorship), and to avoid the imposition of two sets of administration taxes and costs in the event that both spouses died at the same time or within a short period of one another.

The court also noted that the selection of a thirty day period was likely arbitrary. Further, the court noted that interpreting the Will, the court was to strive to determine the intention of the testator.

The court found that there was an inconsistency in the Will, in that it provided different outcomes if the first interpretation was applied. That is, the spouse would have survived for thirty days, but also have died within the thirtieth day. This, the court found, was not intended.

Thus, the court concluded that if the first day was excluded, applying the Rules of Civil Procedure, then the inconsistency was avoided. The spouse would have to survive for thiry full days: that is, survive until some time on the thirty-first day. As the spouse did not survive for thirty full days, and died within the thirty day period, the residue of the estate passed to the one daughter.

Until tomorrow,

Paul Trudelle

04 Jan

Support Your Parents

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“You never call”: a common lament of elderly parents aimed at their adult children. Now, it appears that failing to call, or more specifically, to visit your parents in China may result in legal action.

According to a recent Toronto Star article, China has recently amended its law on the elderly to require that adult children visit their parents “often”, or risk being sued by them. 

China, perhaps more than any other country, is facing a significant issue with its aging population. In just fifty years, the average life expectancy soared from 41 to 73. Coupled with family planning policies that limit most families to a single child, and a lack of affordable options for the care of the elderly, such as retirement or nursing homes, this has led to an elder care crisis. The legislation is aimed at assisting the elderly in seeking care.

While the legislation may seem extreme, there is already legislation on the books in Ontario to a similar effect. While it does not require visits, section 32 of the Family Law Act provides that an adult child has “an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so.”

The Ontario provision was applied in a few reported decisions. It was discussed in an adoption decision, Re Proposed Adoption of Q.(A.L.K.). There, the court noted that “dependencies shift” from parent to child, and an adult child has a “clear responsibility … to shore up the parent’s own financial resources, if the parent has need of that.”

Note to my children: Govern yourselves accordingly, Christopher and Marc.

Have a great weekend.

Paul Trudelle

02 Jan

Putting “New” in the New Year

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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.

Until tomorrow,

Paul Trudelle

16 Nov

Death, Estates and the Past

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A representative of William Faulkner’s estate is suing representatives of Woody Allen’s movie project, “Midnight in Paris” over its use of a quote from Mr. Faulkner.

The line, “The past is never dead. It’s not even past”, is taken from Faulkner’s 1950 novel “Requiem for a Nun”. In the movie “Midnight in Paris”, time-travelling Owen Wilson says “The past is not dead. Actually, it’s not even past.”

Faulkner’s estate is suing for copyright infringement, and is seeking damages, disgorgement of profits, costs and attorney fees. The defendants are defending the claim, relying on the “fair use” defence. Consistent with the “fair use” claim, it is noted in the article that President Obama paraphrased the quote in a speech during his 2008 campaign.

Faulkner’s executor, Lee Caplin, is quoted as saying that the suit is being brought in order to look out for the fiduciary responsibilities of the Faulkner estate.

We have blogged before on various estates involving literary works. In most cases, the estate trustee(s) will go to great lengths in order to ensure that there is an appropriate financial return on the literary works, while also ensuring that the works are not devalued or cheapened. 

(Paranthetically, I note that Woody Allen did not chose to quote Faulkner’s Guiness Book of World Records record-setting 1,288 word “Longest Sentence in Literature” found in “Absalom, Absalom”, published in 1936.)

“Thank you for reading.”*

Paul Trudelle – Click here for more information on Paul Trudelle

*may be subject to copyright

15 Nov

Show Me the “Money”

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In Thiemer Estate, a decision of the B.C. Supreme Court, 2012 BCSC 629 (CanLII), the deceased left an estate having a value of $20m. He left a will that provided for various specific legacies. The will also included a clause that directed the payment of “the balance of any money which I may have at the time of my death” to a common-law spouse. The will went on to define “money” as including “the balance of any money which I may have in any savings and current accounts in my name, any savings certificates, shares and bonds but excluding” insurance proceeds and RRSPs.

At the time of his death, the deceased had bank accounts, GICs, a mortgage receivable, and most relevant to the proceeding, shares in private companies having a value of $14m.

At issue in the interpretation application was whether the definition of “money” in the will, which referred to “shares”, meant that the value of the private companies was to be paid to the common-law spouse.

The decision sets out the relevant guiding principles, and case law on the definition of “money”.

The court decided that the reference to “shares” in the definition of “money” was not intended to include the shares in the private corporations. Essentially, the items included in the meaning of “money” were items that were in the form of cash, or which could be readily converted into cash. This might, then, include shares in publicly traded corporations. It was held, however, that the definition did not extend to shares in a private corporation, which by their very nature could not be readily liquidated.

This conclusion was fortified by other terms of the will. For example, the will established a spousal trust. If the spouse’s position on the definition of “money” was accepted, there would be very little left in the spousal trust. Further, the will provided extensive administrative powers to the trustees with respect to the ongoing operation of the companies. The spouse’s interpretation of “money” would render these powers “superfluous”.

The case is very instructive in the interpretation of wills, generally, and the application of those principles of interpretation in a specific context. 

Thank you for reading,

Paul Trudelle – Click here for more information on Paul Trudelle

13 Nov

Remembrance

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This past Sunday was Remembrance Day: a day when we pause to remember those who made tremendous sacrifices for our freedom.

Of particular note are the sacrifices made by Corporal Leo Clarke, Sergeant-Major Frederick William Hall and Lieutenant Robert Shankland. All three men fought and gave their lives during World War I. All three men received the Victoria Cross for acts of bravery. All three men lived on one block of Pine Street in Winnipeg, Manitoba.

On September 9, 1916, Corporal Clarke was involved in a battle that wiped out his entire section. 20 enemy soldiers counter-attacked, and Clarke defended the position. He single-handedly killed 19 enemy soldiers, and captured one. Corporal Clarke was later seriously injured in battle on October 11, 1916, and died on October 19,1916 at the age of 23.

Sergeant-Major Frederick William Hall died in battle on April 24, 1915 at the age of 30. During a battle in Belgium, Hall left his position of shelter and ventured onto the battle field to recover wounded soldiers. He brought two wounded soldiers back to safety, but lost his life will trying to save a third.

Lieutenant Robert Shankland fought in both World War I and II. He was awarded the Victoria Cross for his acts of bravery while a Sergeant in World War I. On October 26, 1917, Shankland led a platoon and captured a position at Passchendaele, Belgium. The position was exposed and under heavy attack, and was at risk of being lost.   Shankland turned over command to another officer, and fended his way through mud and enemy shelling to return to battalion headquarters, where he was able to report on the situation, obtain reinforcements, and plan a counterattack. He returned to the front to lead the counterattack. Shankland rejoined the military for World War II. Lieutenant Shankland died in 1968,

What united the three men, apart from their extraordinary valour, was the fact that they all lived, and one point, on Pine Street, Winnipeg. In 1925, Pine Street was renamed Valour Road. in honour of these wonderful gentlemen.

Shankland’s medal was purchased by the Canadian War Museum in 2009 for $240,000 from, it is believed, Shankland’s family. Shankland’s Victoria Cross, along with those of Hall and Clarke are now displayed at the Canadian War Museum in Ottawa.

Thank you for reading,

Paul Trudelle – Click here for more information on Paul Trudelle

05 Oct

Don’t Be a “Waiter”

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A client (or friend, or my mother: I can’t quite remember who) once referred to her children as “waiters”, as in “They’re waiting for me to die”.

To this point, a recent article on the Globe and Mail online by Rob Carrick warns against children relying on an inheritance to bail them out.

The article refers to an oft-quoted report from 2006 that suggested that $1-trillion ($1,000,000,000,000) will be inherited in the next twenty years. The article suggests that this number might be less today, due to increased debt-load, falling property values, weak investment returns and longer lifespans. However, whatever the number may be today, it is still a significant one.

The article cautions children from relying on these numbers and a potential inheritance to bail them out of trouble. Carrick says “As for people counting on an inheritance, that’s only one step away, in financial planning terms, from waiting for a lottery win.”

As ill-advised as it may be, 53 per cent of Canadians are expecting an inheritance, and 57% of those who think they know what they are getting expect it to be in the six-figure range.

However, those expecting a big inheritance may be disappointed. Second (or third, or fourth…) relationships may eat into their inheritance. Further, seniors are living longer, and the costs of senior care can take up a large portion of a senior’s savings. Coupled with this is the fact that government pensions may not be able to provide significant assistance.

The message seems to be to live within your means, and plan for your own future needs and well-being. Don’t spend your inheritance before it comes in.

Have a great long weekend.

Paul Trudelle

04 Oct

Denying Compensation to a Guardian

Hull & Hull LLP Guardianship, Litigation Tags: , , , , , , 0 Comments

On Tuesday, I blogged on the recent Ontario Court of Appeal decision of Aragona v. Aragona, 2012 ONCA 639.

There, the application judge denied the guardian compensation. In so doing, the application judge noted the guardian’s failure to keep proper accounts. The Court of Appeal stated that a guardian has, by statute, a fiduciary obligation to carry out his or her obligations with honesty and due care and attention. “The core of these obligations includes the duty to be in a position at all times to prove the legitimacy of disbursements made on behalf of the estate.” 

Further, the application judge went on to find that “the conduct [of the guardian] has been shocking. He has literally helped himself to many thousands of dollars from his mother’s estate, at a time when his mother had Alzheimer’s and was unable to look after her own affairs.”

Together, these two factors led to a denial of compensation: a conclusion that was said to be clearly in the discretion of the application judge.

In denying compensation, both the Court of Appeal and the court below relied on the decision of Zimmerman v. McMichael Estate, 2010 ONSC 2947. This decision clearly sets out the obligations of a trustee, including the obligation to account. The application judge found that because significant funds disappeared from the estate without adequate explanation, it was appropriate to award no compensation. The application judge contrasted this with the situation in Re Assaf Estate, 2009 CanLII 11210.  There, there was wrongdoing found, but no harm was said to have resulted to the estate. In that situation, compensation was reduced by 50%, but not disallowed completely.

Thanks for reading,

Paul Trudelle – Click here for more information on Paul Trudelle

02 Oct

Appealing on the Basis of Inadequate Reasons

Hull & Hull LLP Litigation Tags: , , , , , 0 Comments

Yesterday, Ian Hull tweeted on the recent Ontario Court of Appeal decision of Aragona v. Aragona, 2012 ONCA 639.

There, the Court of Appeal dismissed, for the most part, an appeal by a guardian from a decision dismissing his application to pass accounts. The motions judge ordered that the guardian repay a significant amount to the estate; dismissed his claim for reimbursement for certain legal fees, and deprived the guardian of compensation.

The guardian appealed the finding that he had to repay funds to the estate on the basis that the application judge did not provide adequate reasons. The Court of Appeal noted that the appellate court’s focus is on whether the reasons explain what was decided and why the decision was made. “Ultimately, the test is whether the reasons permit reasonable appellate review.” The Court of Appeal found that, “Shortcomings notwithstanding”, the application judge’s reasons were adequate. The findings of the applications judge were supported by the record; the applications judge’s assessment of credibility was entitled to deference; and the application of the facts to the controlling legal principles leading to the conclusions reached was explained.

Tomorrow, I will look at the discussion of the application judge’s denial of compensation.

Thanks for reading,

Paul Trudelle

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