Tag: law blog

07 Oct

Hull on Estates #391 – Multiple Wills

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Listen to Hull on Estates #391 – Multiple wills

Today on Hull on Estates, Jonathon Kappy and Joshua Eisen discuss benefits and pitfalls related to multiple Wills. Should 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 Jonathon Kappy.

Click here for more information on Joshua Eisen.

10 Sep

Hull on Estates #388 – Setting up trusts for children

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Listen to Hull on Estates #388 – Setting up a trust for your children

This week, Moira Visoiu and Andrea Buncic discuss setting up trusts for children. 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 Moira Visoiu.

Click here for more information on Andrea Buncic.

17 Jul

Hull on Estates #339 – Probate of a Lost Will

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Listen to: Hull on Estates Episode #339 – Probate of a Lost Will

Today on Hull on Estates, Noah Weisberg and Natalia Angelini discuss the probate of a lost will and the case out of the Supreme Court of British Columbia, Thierman Estate v. Thurman. A link to the case can be found here.

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

Click here for more information on Noah Weisberg.

Click here for more information on Natalia Angelini.

04 Jul

Hull on Estates #338 – Priorities in Payment of Estate Debts

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 Listen to: Hull on Estates Episode #338 – Priorities in Payment of Estate Debts

Today on Hull on Estates, Paul Trudelle and Jonathon Kappy discuss priorities in payment of estate debts, equalization, dependant support and bequests.

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

Click here for more information on Paul Trudelle.


Click here for more information on Jonathon Kappy.

24 Jun

Compensation for Work Done by Estate Trustees and Solicitors – Hull on Estates #116

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Listen to Compensation for work done by estate trustees and solicitors.

 

This week on Hull on Estates, Paul Trudelle and Diane Vieira discuss compensation for work done by estate trustees and estate solicitors.

 

Case citation:

Rooney Estate v. Stewart Estate 2007 WL3019262 (Ont. S.C.J.), 2007 CarswellOnt 650

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

12 Apr

Institutional Delay or the Heartache of Obtaining a Hearing Date

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I was recently in the Brampton courthouse. I imagine that Brampton is one of the busiest courthouses in the Province. It serves the Regional Municipality of Peel, which includes Mississauga and Brampton. The courthouse is busy with both criminal and civil matters. While I was there, I heard requests over the loudspeaker for Polish, Punjabi, Vietnamese, Chinese, and Spanish interpreters.

For my part, I was scheduled to speak to a guardianship application, which was to be adjourned on terms. The problem I faced was securing a full day hearing date for the return of the application. My matter involves a widow, whose health is declining. She has been declared incapable of managing her property and making personal care decisions. The application was brought by the widow’s nieces (my clients) to be appointed co-guardians of property and personal care for their aunt. The application is hotly opposed by the attorney for property and personal care, who my clients believe was appointed under suspicious circumstances.

While the adjournment was granted, it was also crucial that I obtain a timely hearing date for the application. However, the presiding judge apologized and advised that the first available date was not until late September 2007. More than six months would pass before the application would be heard. Her Honour explained that the region was understaffed when it came to judicial resources and simply could not accommodate all matters despite their apparent urgency. Her Honour also indicated that criminal matters usually took precedence over civil matters, as the right of an accused to a fair hearing would be prejudiced by undue delay.

The bottom line is that parties intent on litigating, whether in the estate context or otherwise, should understand that institutional delay will often push their “day in court” well into the future. Justice delayed is justice denied. However, that is the reality that litigants face in today’s overburdened court system.

It is for this reason that many alternatives to litigation are frequently promoted. Mediation is a good example, as is binding arbitration in commercial litigation matters. A party should therefore carefully consider what options they have before necessarily assuming that a court hearing is their best course of action.

Enjoy!
Justin de Vries

11 Apr

Perseverance & Litigation

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Much has already been written about the trial of Conrad Black currently unfolding in Chicago. There are, of course, constant press dispatches and on-going, daily TV coverage. I will leave Conrad Black’s innocence or guilt to the jury sitting in Chicago. However, on a more subtle level, there are lessons to be learned for any party in protracted litigation.

When Conrad Black was first charged with fraud and racketeering, he was widely condemned. His critics took a certain amount of glee in seeing “Conrad brought low”. He was after all getting his proper comeuppance after years of malfeasance. However, Conrad Black did not flinch or bow to the pressure. He maintained his innocence rather convincingly throughout and clearly believed in the strength of his case.

To my mind, what has been impressive is Conrad Black’s perseverance in the face of adversity. Persevering is key to successfully litigating. It has been said that litigation is not a tea party; in fact, it’s more akin to war. A party has to have, or quickly develop, a thick skin. The opposing party and their counsel will hurl all sorts of allegations against you, belittle your case, and try to marshal evidence that at first blush may seem crushing and unanswerable. However, a party has to believe in the righteousness of their case and not lose faith.

Obviously, a party should have only commenced litigation or mounted a defence after carefully considering the facts and the law. If it was concluded that litigation was unavoidable, then a party should not waiver but persevere. A party should always consider reasonable settlement options, but nevertheless carry on undaunted.

Litigation can be difficult, expensive, and in the estate context emotional. Many litigants begin to waiver midstream wondering whether they made the right decision, if the proper evidence has been gathered, and if their case is as strong as it first appeared. However, with the help of good counsel, a party will weather the storm.

When in doubt, stop for a moment and think of Conrad Black who persevered despite the tremendous pressure and the clamour of his critics. Who knows, he may ultimately win.

Enjoy!

Justin de Vries

05 Apr

Defrauding an Estate

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This blog completes my week-long rogue’s gallery of criminal convictions in estate matters. So far I’ve talked about the Criminal Code in general plus specific cases involving breach of trust and theft.

On to fraud.

In R. v. Moore (1998 Carswell Nfld 276), an accused along with a deceased’s four siblings signed and filed with the court false documents stating that the whereabouts of the deceased’s four children were unknown, that the deceased left no will, and that the accused knew of no one else with an interest in the estate. This is chronicled at length in a set of reasons dealing with the deceased’s remarkable and inspiring life. The accused, though equally remarkable, was hardly inspiring. The criminal charges marked the culmination of her complex scheme of lies and deceit.

The accused claimed she doubted whether her brother was born to the deceased, and said her doubts in this regard justified her behaviour. The Court found that the accused was “resourceful, and articulate”, but used her talents by “persist[ing] in [a] despicable charade” to defraud her brother, nieces and nephews.

For all her trouble, the accused received $10,000, plus a conviction for fraud. It is often bizarre the extent someone will go for what seems, objectively, to be a small amount of money.

An interesting aspect of the case is that the deceased in question, mother of the accused/convicted, was by all indications a font of kindness and compassion, taking several children under her wing during her lifetime. The reasons dwell at length on what a fine person the deceased was, implying quite clearly that the accused failed to measure up to her mother’s legacy.

We will not be posting a blog on Good Friday, April 6, 2007.

Thanks for reading.

Sean Graham

03 Apr

Breach of Trust – Criminal Penalties

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Yesterday I suggested that criminal charges in Estates, capacity and trust cases might become more common.

In R. v. Bunn (2000), C.C.C. (3d) 505,  the Supreme Court of Canada considered the sentencing of a Manitoba lawyer convicted of converting some $86,000 worth of trust monies to his own use. The accused acted as attorney for property for Soviet/Russian beneficiaries of Manitoba and Saskatchewan estates. He received monies in trust, but instead of paying it all to the beneficiaries, he redirected some of it to himself.

This conduct was discovered by the Law Society of Manitoba when conducting a spot audit of the accused. The accused was disbarred. Some compassion may be warranted: the accused cared for a disabled wife, was the sole income earner in the family, suffered financial woes for years, and lost his reputation and 20-year law career.

At trial the accused was sentenced to two years in a federal penitentiary, but the Manitoba Court of Appeal substituted a conditional sentence of two years less a day.

The Supreme Court of Canada, in a 5-3 decision, upheld the Appeal decision. The majority decided that the need for restorative justice and the benefits of reducing prison terms outweighed the minority’s desire to denounce the accused and promote general deterrence.

Lawyers tend to be easier targets in these cases because of the need to establish mens rea (the intent to commit a crime). It would be difficult for any competent lawyer to claim ignorance of proper usage of trust monies, but laypersons may be a different matter.

Thanks for reading.
Sean Graham

29 Mar

Tips From the Bench – Ontario Bar Association Trust & Estates Section Meeting

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On Tuesday, March 27, 2007, I attended the Ontario Bar Association Trust & Estates Section Meeting. Kathryn Bennett opened the meeting with a discussion 2007 federal budget and how it affects individuals from an estate planning point of view. Some of these points were touched upon in our earlier blogs.

The meeting continued with presentations by Justices Greer, Croll, Perell and Spies of the estates list. They addressed what the estates bench and bar can do better. The judges touched upon the following matters:

  • The Estates court will be sitting every week this summer;  
  • "1 1/2" judges will be sitting every week (1 in the summer months);  
  • At some point, an initiative will be put in place whereby the first appearance for long applications will be a 15 minute timetabling appointment;  
  • The judges stressed the importance of advising the estates office early if a motion or application is not proceeding, or if it is to be proceeding on consent;  
  • An e-scheduling pilot project will be put in place soon;  
  • The judges emphasized the advisability of filing a family tree as part of the record;
  • In guardianship applications, where the Public Guardian and Trustee has sent a letter raising issues, it may be advisable for a supplementary affidavit to be filed setting out how the issues raised by the Public Guardian and Trustee have been addressed; 
  • Counsel should try to simplify matters by setting out in the confirmation form what materials are to be reviewed by the judge, and, possibly, by attending at the court office the day before the proceeding in order to tag what materials are to be reviewed;
  • Counsel should consider the advisability of having a case management judge appointed in certain proceedings; 
  • When submitting an "unusual" over the counter motion, counsel should consider sending an explanatory covering letter, and requesting that the matter be put before a judge.
  • Mr. Justice Perell referred to a recent work which noted that in an information economy, what is scarce or valuable is attention. Applying this to advocacy, counsel should ensure that their message is effectively and efficiently packaged so that judicial attention is captured and focused. Counsel should have this in mind when considering the procedures to be used to determine the issues, and when preparing materials.

Until tomorrow,

Paul Trudelle 

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