Listen to becoming an executor after death.
This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag, discuss becoming an executor after death and three issues that must be addressed immediately.
The meaning of life is that it stops. — Franz Kafka
If you are familiar with Kafka and his short literary works, you will know that he was a tortured literary genius who was unsure of his own talent to the point of torment. In 1924, dying of tuberculosis, Kafka wrote to his friend of 20 years and fellow novelist, Max Brod. Kafka had made a list of his three novels and a number of stories and gave strict instructions to Brod to destroy all his manuscripts ‘unread and in their entirety’ and to ensure that already published works would never be re-printed. These instructions were not contained with a formal last will and testament, rather they were a penciled note found in a drawer after his death.
Kafka’s lover, Dora Diamont, partially executed his wishes by stashing away letters and notebooks until they were seized by the Gestapo in 1933. Sidebar: These papers are the subject of an ongoing international search. Brod, however, ignored his friend’s wishes and instead oversaw the publication of the works in his possession. Brod’s defence was that if Kafka had really wanted the works destroyed, he would have appointed another, more ruthless executor. Kafka, had, according to Brod, trusted Brod to not burn his writings.
Interesting question, perhaps not in the legal sense, but in a moral and ethical sense: Is it possible that Kafka undermined his own intentions by the very nature of the relationship he had with his executor?
Listen to Preparing for Trials in the Context of Contested Passing of Accounts
In this podcast, Craig Vander Zee and Paul Trudelle discuss trial preparation considerations in the context of a contested passing of accounts.
This week on Hull on Estate and Succession Planning, Ian and Suzana discuss core issues in estate planning; specifically the importance of beneficiary designations.
BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – LIMITATION ISSUES? – Part IV
As to the question of fiduciary duty between parent and child, the Supreme Court of Canada in M.(K.) v. M.(H.) held that the relationship of parent and child is fiduciary in nature and that incest was a breach of the parent’s fiduciary duty to protect the child’s well being and health.
It is perhaps the most compelling defence available to counsel defending a parent in such cases that the claim has been brought outside of the conventionally recognized limitation periods.
A significant portion of the decision in M.(K.) v. M.(H.) was devoted to the question of the limitation defences raised by the parent.
In contrast, counsel for the child argued that incest was a separate and distinct tort which was not subject to any limitation period; that incest constituted a breach of fiduciary duty by a parent and is not subject to any limitation period; and if a limitation period applies, the cause of action does not accrue until it is reasonably discoverable. Furthermore, it was argued that the child was of unsound mind pursuant to section 47 of the Limitations Act; that the tort is continuous in nature and the limitation period does not begin to run until the child is no longer subjected to parental authority and conditioning; and that the equitable doctrine of fraudulent concealment operates to postpone the limitation period.
The limitation defence failed and the Supreme Court of Canada held that the tort claim, although subject to limitations legislation, does not accrue until the child is reasonably capable of discovering the wrongful nature of the parent’s acts and the nexus between those acts and her injuries. Furthermore, that the discovery took place only when the child entered therapy and the lawsuit was commenced promptly thereafter.
All the best, Suzana and Ian. ——–