There are numerous resources available to estates and trusts lawyers to help them navigate their practice during these COVID-19 times. As there does not yet seem to be one amalgamated repository, I thought I would use today’s blog to highlight some sites that I tend to be frequenting:
The Law Society of Ontario
The LSO has created an easy to read list of FAQs. Certain questions that I have found particularly helpful include: the requirements regarding commissioning an affidavit, including affidavits of service; the use of virtual means to identify or verify the identity of a client; whether virtual means can be used to assess a client’s capacity; and, what are the best practices for using video conferencing in providing legal advice or services.
LawPRO is continuing to update avoidaclaim.com. Given that new claims reports continue to come in at pre-crisis numbers, lawyers must remind themselves that although the physical location of their practice may have changed, the level of service provided must not.
Hull & Hull LLP
If you are reading this blog, you are probably already aware of the comprehensive resources being provided by Hull & Hull LLP, which can be found here. If not, we are covering everything from estate planning to estate litigation, including the execution of wills and how to have litigious matters heard by presiding judges.
Ontario Bar Association
The OBA has set up a COVID-19 Action Centre. While helpful information continues to be provided, I find myself continually looking forward to their ‘mindful moments’ which arrive daily in my inbox.
Stay safe and wash your hands,
If you consider this topic interesting, please consider these other related sites:
In Baca v. Tiberi, the court awarded substantial costs as against an attorney for property/estate trustee for maladministration of her mother’s property while she was alive, and of her estate following her death.
The litigation was settled prior to a court determination. However, under the settlement, the parties submitted the question of costs to the court.
In Baca, the court found that there was serious misappropriation by the attorney and estate trustee. The attorney added her name to her mother’s bank accounts and took out money for her own expenses. She caused her mother to incur tens of thousands of dollars of debt for the benefit of the attorney, her husband and sister. She moved into her mother’s home with her family and did not pay rent. She transferred title to the home to herself and her mother jointly. After the mother’s death, she transferred the home to herself and her husband. She mortgaged the home to pay her own debts.
At the costs hearing, the court asked the parties whether the attorney’s lawyer might have personal liability for costs. The attorney waived solicitor-client privilege and the lawyer was subjected to examination and made submissions.
The court awarded costs against the attorney and the lawyer on a “full indemnity” basis, after a reduction of $50,000 for excessive time spent, in the amount of $301,941.41, plus HST and disbursements. (The estate had a total value of approximately $1m.) The attorney and the lawyer were jointly and severally liable for costs. As between themselves, the attorney was to be liable for 75% of the costs, and the lawyer was liable for 25%.
In its ruling, the court was critical of the lawyer’s conduct. The court found that the lawyer pursued a goal that was unattainable. Further, the lawyer misrepresented facts to the court. In pleadings, the lawyer (not the client, per the court) denied assertions that were, to her knowledge, true. Further, the pleadings contained assertions that were known to be false. The lawyer allowed a misleading affidavit to be sworn by her client. The lawyer also failed to ensure that certain funds were held in trust in accordance with a court order. At a later hearing, the lawyer advised the court that the funds were held in trust when they were not.
The court found the lawyer liable, partially, on the basis that she knew of her client’s misconduct yet advised or acted on instructions to take untenable legal positions. She also took legal steps that costed her client and the other side hundreds of thousands of dollars, yet the steps did nothing to avoid “the only inevitable conclusion possible”: that her client would have to make the estate whole. There was no evidence that the client was ever advised of the situation.
Thanks for reading.
On May 5, 2019, CBC reported on a story of a lawyer who had his cell phone and laptop seized by the Canada Border Services Agency when he refused to give them his passwords.
According to the report, Nick Wright was returning to Canada after a 4 month trip to Guatemala and Colombia. After his bags were searched, the Canada Border Services officer asked for the passwords to his phone and laptop, so that they could be searched as well. Wright refused, telling the officer that his devices contained confidential solicitor-client information. His devices were then confiscated, to be sent to a government lab which would try to determine the passwords and search the files.
According to Canada Border Services, digital devices are classified as “goods”, and Canada Border Services is allowed to examine the goods, including any electronic files on the device, for customs purposes. If a traveller refuses to reveal their password, Canada Border Services may seize the device. According to the policy manual, although an arrest would “appear to be legally supported, a restrained approach will be adopted until the matter is settled in ongoing court proceedings.”
U.S. customs and border protection officials have similar rights to search devices. Refusal to disclose passwords may result in confiscation or a denial of entry.
Such digital device searches do not occur frequent. In the 17 months between November 2017 and March 2019, 19,515 travellers entering Canada (0.015% of all travellers) had their digital devices examined by Canada Border Services.
The Canadian Bar Association warns about the risks of such searches to lawyers. Lawyers have a duty to keep client communications private. This applies to all information about a client or former client. The duty extends to staff, as well. “Your client has a right to privacy which requires you not to disclose to anyone, with exceptions, when any communications between you relate to legal advice sought or given.”
The Canadian Bar Association says that a breach could result in a loss of client trust, a client lawsuit for negligence, an E&O claim, disciplinary action and public criticism.
The Canadian Bar Association suggests that when crossing a border, lawyers should travel with a “clean device”. They should use cloud technology to store any solicitor-client information. Lawyers should erase all privileged information from their devices, including contact lists with clients’ names, addresses and contact information. The search by border services does not allow them to access information on the cloud. Once across the border, this information can easily be reinstalled from the cloud.
Estate law is centred on asset planning for an end-of-life experience. So not surprisingly, we’ve seen just about every end-of-life situation you can imagine. I can tell you first-hand, many of these situations are painful, fearful, and depressing.
Does it have to be this way? The answer, in many cases, is “no.” We’re beginning to learn about new treatments that can help – and one of the most promising is the use of psilocybin, the active compound in hallucinogenic mushrooms.
Thank you legal cannabis
The legalization of cannabis in Canada and many U.S. states is breaking down barriers for research that was previously taboo, illegal, or underfunded. This is especially so in areas of mental health.
The treatment of physical pain with restricted drugs like morphine has long been accepted. But the use of mind-altering drugs for mental health? Not so much.
That stigma is changing. We’re on the edge of a new frontier in the treatment of “mental pain” – anxiety, depression, and fear of death – and psilocybin is front and centre.,
Research has shown that one of the most promising uses for psilocybin is in end-of-life situations. For those with a terminal illness, psychedelics not only provide relief from the terror of dying during the actual psychedelic sessions, but for weeks and months after.
According to researchers, psilocybin can create a deeper meaning and understanding of terminal situations – and is helpful in relieving the agony of the inevitability of death. Patients could reassure themselves and their loved ones that from a mental standpoint, they truly were okay. Many reported that using psilocybin was one of the most important experiences of their life. You can read more about the studies here.
Change is coming
There are calls for psilocybin to be reclassified for medical use, paving the way for the drug to be used to treat a number of mental health conditions – from fear of death, to depression, to addiction. The New York Times discussed this movement in a recent article.
This new attitude embracing research into the possible use of psychedelics for mental health is a welcome change. I look forward to the findings.
Thank you for reading,
In case you haven’t read or heard enough about the legalization of cannabis in Canada this week, here’s more.
The legalization of cannabis in Canada may have a significant impact on estate planning. Specific issues include:
- Impact on Testamentary Capacity
Today’s marijuana is not the same as marijuana from “back in the day”. The average potency of marijuana has risen from 3.9% THC in 1983 to 15.1% in 2009. On the OCS website, the only legal retailer of recreational marijuana in Ontario, cannabis is available with a labelled THC content of 17 to 28%.
The long term effect of cannabis on cognitive functions has been documented. The immediate and long term effects of cannabis use may have an impact on testamentary capacity, much like other intoxicants or mind-altering substances.
- Impact on Bequests Conditional on Non-Use of Illegal Drugs
The use of incentive trusts is not common, but they do exist. See our blog, here, and our podcast on the topic, here. These trusts can be used to limit or restrict distributions to a beneficiary based on prohibited behavior.
An issue arises if the trust is designed to disincentive use of “illegal drugs”. The effect of the legality of marijuana may undermine the testator’s intentions.
- Insurance Issues
Numerous issues arise in the context of health and life insurance. Issues include:
- Disclosure of cannabis use and the effect on insurability and rates
- The implications of being a medical user, as opposed to a recreational user
- Whether the purchase of medical marijuana is covered by health insurance. (See our blog on this topic, here.)
- Whether a loss arising from the use of marijuana would be covered.
- Administration Issues Related to Cannabis
Issues related to administration include:
- What does the estate trustee do with cannabis possessed by the deceased?
- How is the cannabis to be valued for Estate Administration Tax purposes? (However, in light of the possession limits, this might be de minimus.)
These matters may be of greater concern in the US, where some states have legalized marijuana, while it remains illegal under federal legislation.
For a more detailed discussion of these issues from an American point of view, see “Joint wills and pot trusts: Marijuana and the Estate Planner” by Gerry Beyer and Brooke Dacus.
Have a great weekend.
I came across a blog recently, amustreadblog.com, written by Toronto sommelier Debbie Gordon. She has a lot of great insights about wine from Canada and around the world, and I enjoyed her profile of a man I’d never heard of – Anthony von Mandl – who heads up some of British Columbia’s leading wineries, including Mission Hill.
But before producing award-winning wines that have won honours around the world, Anthony gave the world a much humbler beverage that made him a fortune: Mike’s Hard Lemonade. I realized that there are a lot of different personalities in the wine world, and a lot of different paths to the top.
Then another blog entry caught my eye that reaffirmed the “different personalities” viewpoint – cannabis-infused wine.
Yes, a California winery, Rebel Coast, is marketing Marijuana Infused Sauvignon Blanc. California laws don’t allow alcohol and THC to mix, so the weed takes priority, with 16mg THC and 0.5% alcohol. As Gordon notes, “you may get high but you definitely won’t get drunk.”
I don’t know about you but as an Ontario resident, I’m still getting used to seeing bottles of beer in my local No Frills, let alone weed-infused wine. But as legalization of cannabis comes to Canada, we’re going to be seeing a lot of things that we’ve never seen before. Weed wine may be one of them.
So, what does it taste like? Gordon attended a tasting and gave this description.
“I think it’s fair to say the blend is aromatically unique from the Sauvignon Blanc I’m accustomed to. I smell citrus, hops and something else … Ragweed? It’s herbal. I tweet “grass” since I don’t want to offend. On the palate? I’m getting something akin to Mello Yello and aging asparagus. Also, higher acidity and rustic, savoury, herb-de-Provence flavours. “Notes of freshly picked pot,” the millennial to my right, knowingly adds.”
I don’t know about you, but I’ll likely be sticking to my inexpensive THC-free house wine.
Thank you for reading,
Sometimes it is the most simple questions that are the most difficult. The Estates Act, R.S.O. 1990, c. E.21 provides that a person “having or pretending to have an interest in the property affected by the will” must be served with an Objection but not much more. Rule 75.01 of the Ontario Rules of Civil Procedure provides that an “estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.” Is a creditor a person with such an interest?
In Belz v. Mernick Estate (2000), 31 E.T.R. (2d) 27 (Ont. S.C.J.), Hailey J. held that the sort of “financial interest” that Rule 75 contemplates is a “beneficial interest”. There the context was an application for an Order Giving Directions. Belz v. Mernick Estate has been followed in a number of cases, mostly recently in Salzman v. Salzman, 2012 ONSC 1733 (Ont. S.C.J.).
The reason I raise the point is that I recently came across an interesting English judgment on point. Randall v Randall  EWHC 3134 (Ch.) featured a separation agreement whereby the husband was entitled to part of his former wife’s future inheritance from her mother that was over and above £100,000. The cynical amongst us might not be surprised to learn that the mother gave her daughter exactly £100,000 in the Will. A Motion was brought to determine a number of preliminary issues including whether the ex-husband could challenge the Will. The Court held he could not and traced the rule back to an old case, Menzies v Pulbrook and Kerr  2 Curt 846 (Prerogative Court), and through a series of cases up to the present day. The explanation was of course the same as Justice Hailey’s – an “interest in an estate is not the same as being interested in the estate, or having an interest that is connected to the estate” in the words of the judge. A creditor has an interest in getting paid, not establishing proper rights in the assets of the Estate by law and must confine himself accordingly.
Why should we have an interest in “interests”? We practice in a very old and well litigated field. “Pragmatic” solutions have always been sought by judges and the old cases feature a lot of learning. Given that just about everything is available on the Internet now, I suggest we go a step farther than being archivists. It is a salutary exercise to actually read these old cases and not dismiss them as so many people do as “old authority”. Do we really need to re-invent the wheel on a continuing basis?
Today on Hull on Estates David Smith and Moira Visoiu discuss New Year’s resolutions for legal practitioners. Specifically, they mention the December 2012 issue of LAWPRO Magazine. A few of the best practices mentioned include the use of checklists and time management tools as well as tips for thorough documentation.
Please email firstname.lastname@example.org or leave a comment on our blog if you have any questions.
Click here for more information on Moira Visoiu.
There has been so much that has been recently written about the release of the iPad and more recently, the new iPhone 4G. Some may remember that an Apple Software Engineer who was working on the iPhone 4G accidentally forgot the Smartphone at a local bar, prior to its release date. Gizmodo, known as a leading technology weblog about consumer electronics, purchased the Smartphone from the finder and published exhaustive details about many of its new features, thereby stealing some of the thunder from the creators of the iPhone.
Smartphones are certainly the hottest thing going forward in social, business and technological circles, and its time for us to start thinking about the revolution it has had on our lives.
Thanks to Smartphones, most lawyers are now mobile. I read an article in the most recent LawPRO magazine named “Essential Smartphone apps for Lawyers”. For those of us who are not familiar with technological jargon, an app is short for “application software”, which is downloaded to a Smartphone. Some essential apps described in this article were: “Documents To Go”, which, among other things, allows lawyers to view and edit Microsoft Word, Excel and PowerPoint files, and “Timr”, another app referred to in this article, allows a lawyer to track their time and mileage.
Smartphones have certainly made life convenient, but as lawyers it is scary to think about the privacy issues associated with all of the personal and client data that we store on them. With just a push of a button or a poke at the touchscreen, pretty much anyone who got hold of your phone could read your email, see pictures of you, your family etc. Smartphone’s contain far more personal data than would ever have been accessible on older mobile phones, now coined as the “dumbphones”.
Most of our privacy concerns can be remedied, which is as simple as enabling your security passcode, thereby locking your phone so that anyone who steals it or finds it if you have misplaced it cannot gain access.
Thank you for reading and have GREAT weekend,
Rick Bickhram – Click here for more information on Rick Bickhram.
Growing up, I used to watch Perry Mason television movies and dreamed of becoming a top litigator, regularly eliciting confessions from the ‘real criminal’ during courtroom trials full of intrigue and suspense. As a law student and then practicing litigator, I quickly learned that there is a world of difference between trials and the legal system as depicted on (usually) American television, and the daily workings of the Canadian legal system. Sadly, I still cannot boast of any “You can’t handle the truth!” moments during my cross-examinations.
A recent article in the National Post examined the influence of U.S. legal shows on Canadians, and noted that most Canadians do not understand the basics of our own legal system. In a recent high-profile Toronto murder case, a key witness’ testimony during the trial did not match what she had earlier told police. When asked if she understood what it meant to commit perjury, the witness indignantly answered that she knew what perjury was as she watched “Judge Judy” and “Judge Mathis”. As noted in the article, the “CSI effect” has led to an expectation among jurors that forensic evidence will solve a case. There may also be a “Law & Order syndrome” that leads to false impressions regarding courtroom procedure and legal concepts. For example, many Canadians may be shocked to learn that lawyers appearing in a Canadian court must usually wear gowns (but not wigs á la BBC legal dramas).
The article notes that more legal education in our high schools may help counter the misleading influence of U.S. legal shows. Perhaps another Canadian legal drama like “Street Legal” could also help more Canadians learn about their own legal system.
Thanks for reading,
Bianca V. La Neve – Click here to learn more about Bianca La Neve.