Tag: paul

06 Aug

Foolish Friday

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Earlier this week, I came across a funny web page by Marjorie Gottlieb Wolfe. In “Wills, Clauses & Other “Narishkayt”, Ms. Wolfe sets out particulars of certain will clauses of note. (“Narishkayt”, she explains, is the Yiddish word for “foolishness”.)

Ms. Wolfe tells of Mark Gruenwald, a Marvel Comics writer, who in his will directed that his ashes be mixed with ink and used within the pages of a comic book. 4,000 “ink and ashes” issues of Squadron Supreme were produced after his death.

She tells of Portuguese aristocrat Luis Carlos de Noronha Cabral da Camara, who picked 70 random strangers from a Lisbon telephone book as his beneficiaries.

She tells of Onni Nurmi, a Finish businessman who left 780 shares of a rubber boot company to residents of a Finish nursing home. The company went on to become Nokia, and the residents became millionaires. (Another report, here, says that the bequest wasn’t to the residents, but to the town of Pukkila for the “recreation of the people living in the village’s old people’s home”. At one point, the shares were said to be worth $90m.)

In my personal favourite, she tells of Anthony Scott, who wrote in his will: “To my first wife, Sue, whom I always promised to mention in my will. Hello Sue!”

Ms. Wolfe concludes by reciting the saying: “The person who works and saves will someday have enough wealth to divide with those who don’t.”

Visit her web page to see the entire article, and browse other articles by her.

Have a great weekend.

Paul E. Trudelle – Click here for more information on Paul Trudelle.

04 Aug

Still More on Mutual Wills

Hull & Hull LLP Estate & Trust, Litigation, Wills Tags: , , , , , , , 0 Comments

I have previously posted on the doctrine of “mutual wills”. See my Breakfast Seminar, here, and my blog of September 24, 2008, here.

The issue of mutual wills was front and centre in the July 26, 2010 decision of Re Hand Estate, 2010 NSSC 297 (CanLII).

There, Dr. Hand and Ms. Hand prepared wills in 1999. In his will, Dr. Hand conveyed a condominium to his son Richard if Ms. Hand was to predecease him (the condo was jointly owned with Ms. Hand). In Ms. Hand’s will, she provides that the condo is to go to Richard. Because of the joint ownership, this gift would fail if Ms. Hand was to predecease Dr. Hand, as the condo would pass to Dr. Hand by right of survivorship.

Ms. Hand predeceased Dr. Hand. The condo passed to Dr. Hand. Dr. Hand then revised his will, leaving most of his property to a daughter. He also transferred the condo into a trust.

Richard cried foul, arguing that the wills were mutual wills and therefore were subject to an agreement against revocation. Accordingly, he argued that he was entitled to a half interest in the condo.

The court disagreed. The court found that the wills were not “mutual”, and further, there was no agreement against revocation.

As to the first point, the court found that the different terms of the two wills meant that they could not meet the definition of “mutual wills”, which required that the wills contain reciprocal provisions.

Further, the different terms of the will suggested that there was no such agreement, and that the “flexible norm of revocability” applied. 

This conclusion was supported by evidence from the drafting solicitor, who advised Dr. Hand and Ms. Hand that upon the death of the first of them, the condo would pass to the other as the sole owner. This, the court held, raised the issue of freedom of the sole owner to do as he wishes with his property.

Subsequent events did not assist Richard. The fact that for a number of years after Ms. Hand’s death, Dr. Hand continued to provide that the condo would pass to Richard suggested, at most, that the intention remained. It did not provide evidence of a mutual agreement against revocation.

While the court is free to find an implied agreement not to revoke a will, the court will not do so except in the clearest of cases. If parties intend to create mutual wills, with the accompanying agreement not to subsequently revoke the wills, they should do so in the clearest of express terms.

Thank you for reading.

Paul E. Trudelle – Click here for more information on Paul Trudelle.

04 Aug

Not So Fast: Disclaiming a Bequest and Acceleration

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What happens if a Will gives a life interest in an estate to A, with a gift over to B, C and D, or their issue alive upon A’s death, and A decides to disclaim her interest in the estate?

This issue was considered in Clarke v. Di Bella, 2010 BCSC 505 (CanLII).

There, the testator made a Will that provided that until the death of the survivor of the testator or A, the Estate was to pay the income and capital, as the trustees may decide, to A. Upon A’s death, the residue was to be divided amongst B, C and D. If any of B, C or D was to predecease A leaving children, then that person’s share would go to their children.

A decided to renounce her gift, and have the residue pass to B, C and D immediately. That is, the gift to B, C and D would be accelerated.

The Public Guardian and Trustee opposed, taking the position that acceleration of the gift was contrary to the intentions of the testator, and that acceleration would disentitle the children of B, C and D from a possible inheritance.

The Court disagreed with the PGT’s position, and allowed the acceleration. It held that from a review of the case law, there were four clear principles that applied:

a.                  Acceleration is presumed unless there is an indication to the contrary;

b.                  In assessing whether there is an intention to the contrary, the court must look at both the instrument and the surrounding circumstances;

c.                  The instrument must be examined in its entirety, and clauses must not be examined in isolation; and

d.                  The intentions must be viewed, as nearly as possible, from what would be the views of the testatrix, applying an objective standard.

While many cases have disallowed acceleration, the court did not feel that the present circumstances prevented acceleration.

The court did, however, agree that the intention of the testatrix was that no beneficiary would receive a bequest before the age of 25, and imposed a restriction on distribution before the beneficiaries turned 25.

Thank you for reading.

Paul E. Trudelle – Click here for more information on Paul Trudelle.

03 Aug

All the More Reason to Put a Ring On It

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A Nova Scotia judge recently ruled that a lottery prize was not assumed to be mutual asset to be divided upon the breakdown of a common-law relationship.

The National Post recently reported on a man and a woman who had been living together for a number of years and had won $50,000 on a scratch-and-win ticket. The ticket had been purchased by the man. Notwithstanding the fact that the couple had previously shared winnings, the winnings were deposited into a joint account, and part of the winnings were used for a down payment on a property that they both owned, the court found that there was no prior agreement to share the winnings.

(In another recent Ontario case, the judge found that in absence of cogent evidence of a clear intent to share winnings, there will be no requirement to share.)

Had the couple been married, there would have been a presumption that the lottery winnings were joint.

In Ontario, s. 14 of the Family Law Act creates a presumption that in the case of married spouses, the fact that property is held in the names of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses intended to own the property as joint tenants, and money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants. The provision does not apply to common-law spouses.

What are the possible lessons from this?

  1. If you are buying lottery tickets with someone else, be they a friend or unmarried spouse, have some agreement in place to share the winnings.
  2. As Beyonce says, if you liked it, then you should have put a ring on it.

Thank you for reading.

Paul E. Trudelle – Click here for more information on Paul Trudelle.

28 May

Stieg Larsson Estate

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Stieg Larsson’s latest book, The Girl Who Kicked the Hornet’s Nest, came out last week.

Earlier, Diane Vieira blogged here on the estate of the best-selling author, who died in 2004. Diane noted that Larsson’s common-law spouse of over 30 years received nothing from Larsson’s estate. Larsson died without a valid will, and his estate, estimated presently as having a value of $30 million, passed on an intestacy to his father and brother. Under Sweden’s inheritance laws, the common-law spouse received nothing, and did not have a claim against the estate.

In a lengthy New York Times Magazine article entitled “The Afterlife of Stieg Larsson”, Charles McGrath reports in detail on the life and events subsequent to the death of Larsson.

McGrath notes that Larsson died without a valid Will. (Apparently, Larrson did leave a 1977 will, in which he leaves his estate to the Socialist Party in Umea: the will was not witnessed and is said to have no legal validity.) Although his long-time companion, Eva Gabrielsson, received nothing from his estate, she has become an object of intense sympathy in Sweden.

Gabrielsson also has a laptop containing ¾ of a fourth novel by Larrson, and possibly an outline for others. Larsson’s estate offered to give her their half of Larsson’s apartment in exchange for the computer, but Gabriellson refused. Last November, the estate apparently offered her $2.6 million for the computer, but Gabrielsson didn’t respond.

McGrath states that while Gabrielsson has no claim, she has asserted “a kind of moral entitlement”. In a National Post article, Gabrielsson is said to be claiming that she co-authored the books.

As is usual in these types of matters, great animosity has developed between the spouse and the estate.

Thank you for reading.

Paul E. Trudelle – Click here for more information on Paul Trudelle.

27 May

Costs on a Cy-Pres Application

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Yesterday, I discussed Fort Sackville Foundation v. Darby Estate, 2010 NSSC 27 (CanLII). Today, I will discuss the matter of the costs of the proceedings, reported at .Fort Sackville Foundation v. Darby Estate, 2010 NSSC 45 (CanLII)

The court had dismissed the application by the charity for a declaration that it was the successor charity, or that it was entitled to the bequest upon the application of the cy-pres doctrine.

The charity requested solicitor and client costs from the estate. The successful residual beneficiaries suggested that the charity should receive no costs at all, or at best, party and party costs. The residual beneficiaries noted that any award of costs would come from their entitlement under the estate, and thus, in effect, the successful parties would be paying the unsuccessful party’s costs.

The court awarded solicitor and client costs to the charity. The court noted that the “dispute” was created less by the parties, and more by the wording used by the testator, which wording “fuelled” the issues. Although the arguments of the charity failed, they were “justified” arguments, and arguments “based on reason”.

In Ontario, the court has made similar costs rulings in circumstances where it can be said that the parties have acted reasonably in bringing the matter before the court. However, a different outcome might result if the court was of the view that one of the parties acted unreasonably.

Thank you for reading.

Paul E. Trudelle – Click here for more information on Paul Trudelle.

26 May

More on Cy-Pres

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John Darby died in 2008. In his July 2007 Will, he left his residence and contents to the “Heritage Society of Bedford” [Nova Scotia] on specific conditions. The conditions included a requirement that the Society commit to retain his property and contents as a heritage property; a commitment to use the building to house a museum or some other specified uses; to make such commitments within 1 year; and to open the residence for the stipulated purposes within 3 years. If they did not, the property was to fall into the residue.

However, at the time of his death (or at the time of the making of the Will, for that matter), there was no entity known as the “Heritage Society of Bedford”. There was a charity known as the “Bedford Heritage Society”. However, that charity disposed of its assets and surrendered its certificate of incorporation many years earlier.

The Fort Sackville Foundation claimed that it was the successor charity. The court rejected this claim, holding that there was no amalgamation. While the court will take a broad approach to legal successorship in such circumstances, it cannot find a successor where an entity ceased to exist.

The court went on to consider whether the doctrine of cy-pres applied. The doctrine will be applied where:

a.      the gift as it stands is either impossible or impractical to effect; and

b.      the donor expressed a general charitable intent in making the gift.

The court held that neither test had been met. 

As to the first branch of the test, the gift was not impossible or impractical to effect. Because the gift provided for a gift-over, it could readily be given effect.

As to the second branch, the conditions of the gift narrowed the focus of the gift so as to take away a general charitable intent. The purpose of the gift was to preserve the deceased’s property. If that could not be done, the proceeds were to pass to the residual beneficiaries. Thus, it was held that there was no general charitable intent.

As a result, the proceeds of the sale passed to the residual beneficiaries.

See here for the reported decision.

Tomorrow, I will turn to the issue of costs.

Thank you for reading.

Paul E. Trudelle – Click here for more information on Paul Trudelle.

25 May

Royal LEGacies

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In honour of Victoria Day, celebrated in Canada on the last Monday of May on or before May 24, and considered the first long weekend of the summer, I thought I would consider the terms of the last Will and Testament of Queen Victoria.

Queen Victoria was born on May 24, 1819, and died on January 22, 1901. She became Queen at the age of 18, and reigned as monarch for over 63 years, being the longest reigning monarch in history. She had 9 children (she was predeceased by 3 of her children), including her successor to the throne, Edward VII.

Unfortunately, very little information can be found online about Queen Victoria’s Will. However, while searching, I discovered that a legacy of sorts was recently sold at auction in Scotland. Queen Victoria’s stockings (circa 1870) were sold earlier this year for 8,000 pounds (about $12,000 CDN).                                                    

The prior owner, Mary Youings, said that her late mother gained possession of the stockings around 1910. She said that she did not know the circumstances of how her mother gained possession of the stockings. The Telegraph reported that upon Queen Victoria’s death, her undergarments and much of her wardrobe were distributed to members of the royal household.

In July, 2008, Youings sold a pair of Queen Victoria’s 50” waist bloomers for 4,500 pounds.

I hope you enjoyed your Victoria Day Weekend, and got a “leg up” on summer.

Paul E. Trudelle – Click here for more information on Paul Trudelle.

11 Jun

The New Queen of Soho

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Being immersed in the world of law, we’re constantly confronted with upsetting and often depressing stories.  It feels good to occasionally resurface to hear about a positive story.  

In the London Evening Standard, David Cohen writes about the new queen of Soho, a 23 year old, named Fawn James.  For those of you who are not familiar with the area, Soho is located in the centre of the West End of London, England, in the City of Westminster.  

Fawn James inherited £75 million from her grandfather Paul Raymond, who was well known as Soho’s property tycoon.  Paul died approximately one year ago.

In his article, Fawn James is described in a manner that we can all relate to at some point in our life, a student living on a budget.  One year later, Fawn is £75 million richer and both her and her family now controls 60 of Soho’s 87 acres.

In her first interview since inheriting her grandfather’s treasure chest Fawn says that her "first mission will be to make Soho greener.  We’re looking at retrofitting our entire stock of buildings to make them more environmentally friendly".   She’s also committed to her community, "I think it’s important to support charities operating Soho and in the coming months I’ll be assessing which one we want to assist."  As she reflects back on her time with her grandfather her only concern now is "to make him proud".  

Thank you for reading,

Rick Bickhram

 

27 May

Death, Taxes and Taxes on Death

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Ontario’s new harmonized sales tax is coming into effect on July 1, 2010. One of its effects will be to impose PST on funeral services: services that have previously been exempted from PST.

According to the harmonized sales tax, funeral services will now be taxed at the rate of 13%, up from 5%. The effect on a $5,000 funeral would be to raise the tax payable from $250 to $650.

The new harmonized tax may also have an effect on prepaid funeral services. According to a May 27, 2009 Toronto Star article, there are 224,257 prepaid funeral contracts in Ontario, and about 1 in 4 funerals in Ontario are prepaid.

The Ontario Minister of Finance has indicated that the government hopes to implement some sort of grandfathering clause, so that funeral services prepaid before a certain date remain exempted from the PST. However, nothing has been finalized yet. The cut-off date would likely be some time before July 1, 2010.

Those considering a prepaid funeral would be wise to complete their plans sooner rather than later. The new tax, like death, is approaching.

Thank you for reading.

Paul Trudelle

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