Tag: In the News
A recent story in the news featuring a fraudulent wedding officiant, raises some interesting estate planning issues. Mr. Cogan, who held himself out as an authorized wedding officiant, was charged with performing unauthorized marriages. Cogan had been licensed to perform marriages in the past, but it is reported that his license was revoked before he performed at least 48 marriages between August 2013 and July 2016.
Fortunately, pursuant to section 31 of the Marriage Act, if the couple married in good faith the marriage may be deemed valid despite the revoked licence. Indicia of good faith include: the intention to have a legally binding wedding, no disqualifications due to capacity and impairment, and proof that the couple lived together after the wedding ceremony.
Notwithstanding this statutory remedy, larger consequences for estate planning arise if the couple do not satisfy the prerequisites for the remedy provided in the Marriage Act.
Firstly, an invalid marriage may present an issue for individuals who created a will after the fact, leaving bequests to their “spouses” in their wills. Due to the fact the individuals are not “spouses” as defined pursuant to the intestacy provisions of the Succession Law Reform Act (excluding Part V) or Divorce Act, it would be interesting to see how the court would treat the inheritance should the spouse who made the will die.
Pursuant to Part V of the Succession Law Reform Act, if the couple has been cohabiting continuously for a period of not less than three years, or are in a relationship of some permanence, or if they are the natural or adoptive parents of a child, they may be considered a dependant spouse (within the meaning of Part V). This may entitle the individual a fair share of the estate in this case, but being recognized as an unmarried spouse is not always certain. In any case, it would be necessary to litigate the issue, adding an unnecessary expense to the estate.
Secondly, an invalid marriage would create issues for individuals who die intestate. Pursuant to the intestacy provisions of the Succession Law Reform Act, the spouse is first entitled to the preferential share ($200,000) of an estate. If an individual dies and their marriage was not valid, the spouse that would normally be entitled may be disinherited. The result of this is that the preferential share may go to somebody who was not meant to inherit such a large portion of the estate.
Thirdly, a will is automatically revoked upon marriage. Because he did not have the authority to perform marriages, if a person was “married” by Cogan but had a pre-existing will, that will might not be found to have actually been revoked. This uncertainty creates the potential for litigation.
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When envisioning how your life will unfold within the next few years, there is one thing you likely will not plan for – faking your own death or “pseudocide”. While faking your own death may seem like an extreme measure to try to hide from problems, it is a mechanism that some use in order to gain a large windfall (e.g. insurance fraud) or to avoid having to pay off debts.
Successfully faking a death is an unlikely and extreme example of insurance fraud. The most common cases of pseudocide involve people trying to hide from debt, hide from committed crimes, or couples. Couples commit life insurance fraud when one partner will fake their own death while the other partner is alive and able to claim their life insurance policy.
In Canada, pseudocide is not illegal per se. There is no crime in the Criminal Code for faking your own death, although actions associated with the process, such as obtaining a false death certificate or fraud, are illegal.
One Canadian example of pseudocide took place in 2004 by Jeremy Daniel Oakley. He faked his own death in order to escape criminal charges of sexual assault and sexual interference. He did this by publishing an obituary in a Halifax newspaper stating he died in Toronto, resulting in his criminal charges being stayed. He eventually was arrested for his sexual offences in Nova Scotia.
This month, a book is set to be released entitled Playing Dead: A Journey Through the World of Death Fraud. This book is written by Elizabeth Greenwood and documents her personal journey investigating the fake death “industry” and how easy it would be fake her own death and escape a $100,000.00 student loan. One highlight from this book involved the author purchasing a death certificate on the black market in the Philippines, stating she died in a car accident in Manila.
The book outlines just how far individuals may go in order to claim on life insurance policies, and interviews individuals who have tried. In one case, a couple used and cremated the body of a “local drunk” from the Philippines in order to get a death certificate immediately rather than wait for the payout from the insurance company years down the road. As per Elizabeth Greenwood, “you can go into any city morgue in almost any developing country, ask to see the unclaimed bodies, and cry…they’ll be happy to get a body off their hands.”
Another case in the United States involved a man faking a drowning in order to attempt to collect a policy worth $410,000.00. The perpetrator’s ex-wife eventually tracked him down through his e-mails. In another case, a man was caught for faking his own death when he repeatedly checked a website that was based on his disappearance.
While pseudocide is not common and is usually unsuccessful, it is a small and interesting branch of fraud.
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On February 6, 2015, the Supreme Court of Canada (“SCC”) released its decision in Carter v. Canada (Attorney General), declaring that ss. 241(b) and 14 of the Criminal Code violated the s. 7 Charter rights of competent adults suffering from intolerable and irremediable medical conditions. Parliament was given a one-year deadline to create and adopt an appropriate remedy, if any. With the one-year deadline set to expire, the Attorney General of Canada applied for a six-month extension of the SCC’s suspension of its declaration.
On January 15, 2016, the SCC unanimously granted the Federal government an extension of four months instead of the six months sought. The extension was granted on the basis that the legislative work required to remedy the Charter infringement was reasonably delayed in light of Parliament being dissolved in mid-2015 for the federal election.
In granting the four-month extension, the SCC (in a split decision) held that the extension should not serve to unfairly prolong the suffering of individuals who clearly meet the criteria set out in paragraph 127 of the Carter decision. Accordingly, during the four-month extension period, any competent adult person who: (i) consents to the termination of life and has a grievous and (ii) irremediable medical condition that causes enduring suffering that is intolerable to that person may apply to the Superior Court of Justice in their jurisdiction for an exemption.
The Attorney General of Quebec also sought an exemption from the four-month extension in light of the enactment of the Act Respecting End of Life Care (the “ARELC”), which came into force in Quebec on December 10, 2015. The Court granted the exemption with a caveat that its decision should not be taken as commenting on the validity of the ARELC.
The take away from this recent decision is that physician-assisted death in Canada is legal in all Canadian jurisdictions, outside of Quebec, with the prior approval of a Superior Court Judge.
Here is a link to the SCC’s decision
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This past week, many Torontonians were left without heat, electricity or warm water. The destructive ice storm cut power to thousands of households on Sunday and some of the city’s most vulnerable residents were left in the dark.
An article in the Toronto Star discusses how the ice storm affected Toronto’s Community Housing and how many seniors were left to ‘just sit and wait’ for power.
Della Buchanan, a 77 year old woman living in Arleta Manor, a Toronto Community Housing Corp seniors building at the corner of Arleta Ave. and Sheppard Ave. W lost power around 11 a.m.
In the article Buchanan stated, “you can’t go to the kitchen and make a cup of tea or anything. You just have to sit and wait,” she said. Huddled under a bundle of blankets in bed, she tried to stay warm without heat and without television for entertainment. “For supper, I just have to have something cold,” she said, planning for a dinner of crackers and milk.
Buchanan stated that unlike some other residents in her four-story building, she does not have serious health problems and is thankfully not affected by the elevators not working. “I live on the second floor, but I can go down the steps,” she said. “But there are many in the building who have to depend on the elevator. I think some of them will have trouble because some are in wheelchairs.”
Despite efforts, thousands of Torontonians are still left without power and many had to spend Christmas in the dark.
By Christmas, Vic Baniuk and his wife, Gisela, had spent 4 days in the cold and without power. “For us, there is no Christmas,” said Baniuk, 64, who lives with his wife and dog on Catalina Dr. in Scarborough’s Guildwood Village. Baniuk stated, “My wife is so depressed she took the Christmas tree apart and put it away. Nobody’s coming here. It’s just us, and we’re just trying to survive.”
One week after a massive ice storm, between 50-100,000 Torontonians remain in the dark.
In Toronto, several heated community centers have been opened to provide refuge for Torontonians suffering from the power outage. 13 police stations have also been kept open in public areas for 24/7 support. Similar centers were operated earlier in the storm within cities like Vaughan, Markham, Burlington, Hamilton, Brampton and Halton Hills.
Emergency medical teams are also being set up by the Ontario government, to be available and on-call immediately in the event of an emergency. 15 medical staff from various disciplines have volunteered for the team, which is based at the Sunnybrook Hospital in north-central Toronto.
The Ontario government has also set up a task force to check on the city’s elderly or otherwise vulnerable populations.
We hope everyone stays warm and safe this holiday.
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Hoping for some brown paper packages tied up with string over the holidays? Well, you may get some, but don’t count on them being delivered to your door. Canada Post announced on Wednesday, December 11, 2013 that they are phasing our urban home mail delivery over the next five years and will be eliminating 6,000- 8,000 positions. Additionally they will be increasing the cost of postage, all in an attempt to reduce operational costs.
While the thought of increased postage costs and having to travel to community mailboxes to pick up the mail is undesirable for most, Canada Post’s announcement has caused greater concern for some communities over others. Senior citizens and those with mobility disabilities will now find it particularly difficult to get their mail. For a more in-depth analysis of how this change will effect these demographic groups, please see the CBC’s article entitled Canada Post changes may hit seniors, disabled hardest.
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At present, there is no legal framework in Ontario governing the storage of asthma inhalers within schools. The absence of such a framework shifts the decision-making into the hands of the individual school administrators and/or school boards. What has evolved as a result of this legal vacuum is a patchwork of asthma management plans. Many of these plans lump asthma inhalers with other medications (incl. antibiotics, medications used to treat symptoms of ADHD, etc.), thus requiring them to be locked in the principal’s office. This inappropriate one-size-fits-all approach to medication storage in schools is a textbook example of ‘rulitis’: ‘a slavish adherence to rules and regulations that goes beyond common sense’ (with credit to André Marin, Ontario Ombudsman, for coining that apt phrase).
Within schools, the placement and storage of rescue inhalers in a secure, centralized location is problematic for a number of well-documented reasons, including: i) Storage of inhalers away from the person precludes the immediate use of the medication at the onset of symptoms. Centralized storage of asthma inhalers flies in the face of the fact that an inhaler delivers a dose of rescue medication, and thus should be considered a life-saving measure, not unlike an epinephrine auto-injector. It is impossible to overstate the differences in outcomes between immediate use of an inhaler and delayed use after symptoms have progressed; and ii) Students are apprehensive about asking for help accessing a centrally-stored inhaler due to embarrassment around being considered ‘medically vulnerable’ and the fear of being deemed disruptive by staff and/or peers.
Sandra Gibbons and MPP Jeff Yurek (Elgin-Middlesex-London) have been collaborating on a private members’ bill which, if passed, will force every school board in Ontario to implement a comprehensive asthma policy, each of which must also permit a student to carry his or her own asthma medication on their person. On October 9, 2012, Gibbons’ son Ryan died after suffering a severe asthma attack during recess at his school in Straffordville. Ryan’s attack evolved quickly, his classmates carried him to the principal’s office where his inhaler was kept, but Ryan was already unconscious. Ryan’s school, with tragic consequences, had a zero tolerance policy against inhalers, and had gone so far as to confiscate spare inhalers that he had brought to school just in case he suffered from an attack.
In contrast to Ontario, the U.S. has three prongs of federal legislation in place allowing students to carry inhalers on their person: the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act. Approximately 6 million American children have asthma, and 200 of them die each year as a result of an asthma attack. The federal legislation is in place as much to save those 200 lives as it is to reduce outpatient visits to doctors and hospital E.R. visits (~4.6 million and 700,000 visits per yr, respectively). Across Canada, over half a million children are affected by asthma and approximately 20 children die each year as the result of an asthma attack. The Lung Association of Ontario estimates that 1 in 5 children have asthma in this province.
This week’s media coverage of Yurek’s proposed private member’s bill (“Ryan’s Law") has raised corollary questions regarding epinephrine auto-injectors (EpiPens) at schools, since they also deliver a rescue medication. Just last month, the U.S. passed the School Access to Emergency Epinephrine Law which encourages schools to carry ‘stock’ epinephrine (i.e. an undesignated supply). Encouragement is in the form of financial incentives; schools that carry stock supplies will get preference for receiving federal grant monies. While Sabrina’s Law requires all school boards in Ontario to establish an anaphylactic policy, there is currently no provision in the province to allow schools to stock an undesignated supply of auto-injectors.
Ryan’s Law passed second reading with all-party support at Queen’s Park on December 5, 2013 and will return for third reading some time in the spring of 2014.
Jenn Hartman, Medico-Legal Consultant
* photo of Ryan Gibbons, from Tillsonburg News
Legal aside: It should be noted that both Sabrina’s Law and Ryan’s Law (as it has been tabled) include ‘Good Samaritan’ language which provides immunity from lawsuits for ‘any act done in good faith’ in response to an anaphylactic reaction or an asthma attack, respectively.
A case recently heard by the Royal Court of Jersey may serve as a reminder to take the time to double-check the names of charities when bequests are made within a will. In the Matter of the Estate of Nicholas Turquand-Young, the Royal Court dealt with a will, which named the same charity by two different names in its residuary clause. The residue of the estate, worth eight million British pounds, was left to eight named charities, including “the National Society for Cancer Relief” and “Macmillan Cancer Relief”. Difficulty in the administration of the estate arose when it was discovered that these two residuary beneficiaries are actually two former names of one charity, now known as “Macmillan Cancer Support”.
A dispute arose with respect to whether the Macmillan charity was entitled to one or two of the residuary shares, as well as whether the administration would occur as if the will had named only seven charities, or if the eighth share of the residue would pass on an intestacy.
The Royal Court relied on the reasoning of the House of Lords in Perrin v. Morgan, AC 399,  1 All ER 187, in which the Court’s jurisdiction was limited to the confines of the provisions included in the will. The change of a charity’s name does not, under English law, affect the validity of a charitable gift. Further, the Royal Court stated that multiple bequests made to a charity separately, by two different names, do not render one bequest meaningless. The Court accepted the impossibility of determining what the testator would have intended, had he known that the two charities were one and the same. That the gift go on to fund relief from cancer was, so far as can be inferred from the will, the testator’s intention, and whether the work be done by two separate charities or one charity is of limited relevance, absent other evidence of testamentary intention.
While a similar situation does not yet appear to have been encountered by a Canadian court, a decision on point is inevitable. With an aging population and as many as 60% of wealthy Canadians planning on leaving sizeable gifts to fund charitable purposes, estate litigation involving problematic bequests to charity is expected to be seen with greater frequency in coming years. Generous testators and drafting solicitors should confirm charity names to ensure that assets are being left to the intended beneficiaries.
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After a solitary life brought about by an aversion to media attention over his highly proclaimed The Catcher and the Rye, J. D. Salinger passed away in 2010, remaining unpublished for nearly 50 years.
In keeping with his desire to stay out of the press, the renowned author left several completed works written between 1965 and his death unpublished, with the intention that they not reach the public until many years after his passing with the aim of avoiding the media’s attention which he so loathed.
However, ironically, it appears that these last wishes may have led to a media storm that some say rival even his highest levels of success in life.
This past August saw an onslaught of attention towards the author’s estate brought about by the discovery of several of Salinger’s works which remained locked away, awaiting publication beginning several years from now in accordance with the deceased’s last wishes. These would be Salinger’s first official publications since 1965.
Recently a slew of these highly anticipated posthumous works were leaked online and are now circulating the web for all to access at the click of a button, leaving the deceased authors works exposed to criticism, acclaim and all other forms of scrutiny which the popular writer so avidly avoided in life.
The reaction of the author’s estate is yet to be realized. Clearly, these works fall under copyright and therefore the decision as to whether and when to publish them now lies with the author’s estate.
In circumstances such as these, it may have been difficult for the deceased to predict the advent of a distribution mechanism as powerful as the internet; however, it is likely that the author’s estate will seek some form of compensation for the loss of income generated by the leaked works. The method employed by the estate and from whom compensation will be sought is yet to be determined.
There is little doubt that regardless of the actions the estate employs, the author’s lifelong battle for privacy will continue from beyond the grave, for many years to come.
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Walt Disney’s twin grandchildren are currently involved in a dispute surrounding a testamentary trust worth well over three hundred million dollars. The Will of Sharon Disney, the twins’ mother and Walt’s daughter, grants her trustees the discretion to withhold payment to either of her children if they appear to lack the “maturity or financial ability” to manage the funds appropriately. The trustees have deemed one 43-year-old twin, Michelle Lund, to be capable of receiving the inheritance, while they do not consider the other twin, Brad Lund, to be so.
Brad is bringing an action against Michelle and the trustees for his share of the family’s fortune. He alleges breach of trust, and seeks the removal of the three trustees who are denying him of his inheritance. The trustees, however, state that Brad is not capable of managing his finances because of “chronic cognitive disability.”
In 2009, Michelle suffered a brain aneurysm and her father, Bill Lund, who was then one of the trustees of the family trust, was appointed as her guardian for property. While acting as her guardian, Bill misappropriated trust funds to invest in real estate, and voluntarily removed himself when threatened with court action. Bill is now supporting Brad in his action against his twin sister and the trustees. Bill has publically stated that the trustees, whose management of the family funds is allegedly their full-time job, should be held to a higher standard than those casually appointed, and that Walt would be appalled by their misbehaviour.
Walt Disney’s Last Will and Testament, which was admitted to probate in January 1967, granted similar discretion to the trustees of his many testamentary trusts.
When creating an estate plan, it is important to carefully select trustees who will manage funds with which they are entrusted appropriately, especially when they are being given significant discretion with respect to distributions of assets and where significant funds are involved. Further, when establishing a testamentary trust, it is important to ensure that adequate instructions are provided to trustees, in order to protect them from personal liability and potential removal. Specific provisions can be inserted to assist trustees in dealing with beneficiaries who are known or suspected to lack the mental capacity to manage their own finances. Including alternate appointments, should a trustee be unwilling or unable to act, is a good way to avoid court appointment of individuals unknown to the testator.
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Early last week, a proposed amendment to the Japanese Civil Code, that will equalize the inheritance rights of legitimate and illegitimate children, was approved by the Prime Minister’s Cabinet.
Since 1898, the Civil Code has included a provision stipulating that children born outside of marriage are entitled to only half the inheritance received by children born within marriage. In September, Japan’s Supreme Court ruled that the former Code provision was unconstitutional for promoting inequality.
With increasing diversification of Japanese families and greater frequency of births taking place outside of marriage, the Court considered the former provision to be severely outdated and discriminatory. As recently as 1995, the Supreme Court had declared the discriminatory provision constitutional. More recently, the United Nations had recommended that Japan amend its legislation to allow equality of inheritance by children. The Court ruled unanimously that children have no control with respect to the marital status of their parents and that it is unforgivable to cause disadvantage to them on such a basis.
However, some are concerned that the amendment will not achieve its purpose. In Japan, family law requires that a child’s legitimacy be registered at the time of birth. The failure to concurrently update this system to eliminate the distinction between children born inside and outside of marriage means that some discriminatory provisions of the Civil Code remain. Some critics of the amendment worry that the equal treatment of children born inside and outside of marriage threatens the institution of marriage itself.
The bill is, nevertheless, expected to equalize the inheritance rights of historically discriminated against children, who are born outside of marriage. The amendment is expected to come into effect as law next month.
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