With so much taking place around us now, I forced myself to choose a topic for today’s blog that, although still estates related (this being, after all, an estates blog), allows me to think about something beautiful. I landed on art.
Full disclosure: I have blogged about art and estates before. See here and here for some shameless self-promotion. Without wanting to revisit these topics, I did some searching and was intrigued by this Financial Times article about the Art Loss Register (ALR).
The ALR is the world’s largest private database for lost and stolen art, antiques, and collectibles. Their services are essentially twofold. First, the ALR assists to deter the theft of art by promoting the registration of all items of valuable possession on its database and also the expansion of checking searches. Second, by operating a due diligence service to sellers of art, the ALR operates a recovery service to return works of art to their rightful owners. In addition, the ALR has expanded to negotiate compensation to the victims of art theft and the legitimising of current ownership.
In addition to art dealers, insurers, and museums, the ALR also assists private individuals including beneficiaries and trustees. A trustee who is intending to liquidate art may wish to rely on the ALR to prove title and authenticity, thereby potentially increasing value and mitigating risk of fraud.
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Legal Aid Ontario has published a notice setting out changes to coverage for Consent and Capacity Board appeals.
Effective June 23, 2020, Legal Aid Ontario is making the following changes to its certificate coverage:
- an additional 10 hours will be offered to the current 25 hours allocated on the CCB appeal tariff. This increases total coverage to 35 hours
- a new 10-hour certificate for motions for emergency/urgent CCB treatment orders held in the Superior Court is being introduced
The full notice can be found here.
If you have applied for CCB appeal coverage from March 13 onward, Legal Aid Ontario will be contacting you regarding the notice. If you have not heard from Legal Aid Ontario, you should contact them directly.
Any attempt to increase access to justice, is always welcome.
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As an avid Seinfeld fan, I recently watched the episode where Elaine Benes kept on eating submarine sandwiches just so she could collect enough points to earn a free sub. Spoiler alert: Elaine lost the loyalty card before redeeming the free sub. Unfortunately, many estates fail to take advantage of these rewards and end up just like Elaine.
It is estimated that in the US alone, three trillion frequent flyer miles are given annually. Notwithstanding this dizzying number of points, in Ontario there is no law addressing if, and how, points can be transferred upon death. Airlines are left to create their own procedure and standards.
There is a helpful resource, here, which sets out the policies of the major US frequent flyer programs in plain english. The CBC offers similar information for Canadian frequent flyer programs here. While some airlines permit the transfer of points, many discount their value. Some even refuse to allow there to be a transfer altogether.
As discussed in my previous blog, Anthony Bourdain included his frequent flyer miles in his will. Given the suspected value of these points, this estate planning decision makes sense.
In considering an estate plan, a testator should, first, decide whether to choose airlines based on the ability to transfer points. Second, if a testator has amassed significant points, and they are transferrable, make sure to include them in a will.
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There is a great scene in the movie, The Post, where the Washington Post has to decide whether to publish the Pentagon Papers. If the posting ‘damages national security’, they will be faced with a lawsuit. The subjectivity of what may damage national security, and the discussion that ensued between the lawyers, board members, and journalists at the Post got me thinking about end of life wishes and the use of boilerplate clauses.
Almost all powers of attorney for personal care include language addressing end of life decisions. Common is the boilerplate ‘no heroic measures’ clause, which often reads as follows, “…if there is no reasonable expectation of my recovery…I be allowed to die and not be kept alive by artificial or heroic measures”.
But what does ‘heroic measures’ actually mean? For some, such as in Bonnie Grover’s 1995 article in the Journal of Law & Policy: “heroic measures conjures up visions of brilliant and daring doctors, enormously skilled nurses and technicians, high-tech machines, masses of tubing and bottles, and perhaps even a patient lying somewhere amongst it all…”. For others, “…medical practice recommends use of heroic measures if there is a scintilla of a chance that the patient will recover, on the assumption that the measures will be discontinued should the patient improve”. Differing interpretations go on and on. So what should be done about it?
To ensure that end of life wishes are carried out as intended, grantors, in addition to making a power of attorney, should consider making a living will/advance directive, and discuss their wishes with their attorney. Clear instructions and wishes should also be conveyed to the drafting solicitor.
Drafting solicitors should review end of life clauses in detail with their client, make sure they are understood, and ensure that detailed notes are taken.
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Cherished, memories, generational, and cozy, are just some of the words that evoke the magnificence that is the family cottage. It is this magnificence that leads many families to want to hold on to the family cottage as part of their estate plan. This is not always easy though, and the family cottage is often the centrerpiece of an estate dispute. As such, careful planning is key.
Those that want the cottage to stay in the family should consider a co-ownership agreement. The purpose of these types of agreements are to set out the governance of the cottage to ensure it is maintained and disputes are resolved.
Some of the key terms to consider in a co-ownership agreement include:
- how basic expenses will be covered, including hydro, telephone, maintenance, and property taxes;
- how extraordinary expenses, including capital expenses, are to be paid;
- when payments are to be made and to whom;
- which family members are allowed to occupy the cottage, and when;
- are guests permitted;
- should there be a management committee charged with making certain decisions;
- what mechanisms should be used to resolve disputes;
- the procedure for the sale or transfer by a co-owner; and
- what happens upon the death of a co-owner.
If the Kardashians can teach us anything about estate planning (and you know that given the title, there had to be a Kardashian reference), it is that family dynamics are in flux. New relationships emerge, siblings develop different values and beliefs, and sometimes, problems arise. A good co-ownership agreement is not cookie-cutter, but a carefully crafted document reflecting the uniqueness of each family member that can evolve over time.
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