Tag: Pilkington

03 Nov

Advancing the rights of older adults and developing an anti-ageist approach to law

Hull & Hull LLP Elder Law, Estate & Trust Tags: , , , , , , , , 0 Comments

The Law Commission of Ontario, the Canadian Centre for Elder Law and the Advocacy Centre for the Elderly hosted the 5th Canadian Conference on Elder Law on October 29 – 30, 2010. www.acelaw.ca

The stated goal of this year’s conference, which was held in Toronto, was to “promote contribution and access to a knowledge base regarding legal issues affecting older adults, with a view to reducing vulnerability, social isolation, and abuse” with the overarching theme of the conference being to develop an anti-ageist approach to the law.

The speakers touched on a wide range of topics, including aging, access to justice, the role of law schools in responding to Canada’s aging demographic, the challenges and opportunities of a shift to a rights-based approach to elder law and approaches to law reform that include older adults.

In light of the stated goal, several speakers opined that there should be direct consultation with stakeholders. Senior’s Activist, Bea Levis, for example, stressed that laws, policies and programs must be informed by the lived experiences of older adults if we wish them to be both fair and effective. I couldn’t agree more.

The Canadian Conference on Elder Law is one of the many ways that individuals from diverse backgrounds and professions are able to increase awareness regarding the issues facing older adults and develop strategies to advance the interests of this often vulnerable population.

If you are concerned about elder rights, there are several things you can do, one being to sign up for next year’s conference. I hope to see you there.

Thanks for reading!
 

Kathryn Pilkington – Click here for more information on Kathryn Pilkington.

02 Nov

The legal and bioethical questions regarding surrogacy contracts

Hull & Hull LLP General Interest Tags: , , , , 0 Comments

In today’s blog I discuss the legal and bio-ethical questions that stem from contracts between surrogates and “commissioning” parents.

Experts in the field of assisted reproduction suggest that surrogacy arrangements are becoming more commonplace in Canada. While there are no hard and fast statistics to support this proposition, I have no trouble believing it. Larry Kahn, a Vancouver based lawyer who specializes in assisted-reproduction and adoption law, recently advised the National Post that he has arranged more than 35 surrogacy contracts in each of the past 3 years, up from barely 15 such contracts a decade ago.

The National Post article for which Larry Kahn was interviewed dealt with a B.C. couple who urged their surrogate to abort the foetus she was carrying after it was discovered that the foetus would likely be born with Down syndrome. The surrogate, in contrast, wanted to carry the foetus to term.

The surrogacy contract provided that the couple would be absolved from any responsibility for raising and/or providing for the child, should the surrogate carry the foetus to term in the circumstances.

The above scenario raises questions about both the ethicacy and enforceability of a surrogacy contract, including:

1) Should contract law apply to this sort of transaction? If so, are children been reduced to the status of widgets? Juliet Guichon of the University of Calgary opines that the rules of commerce should not apply to the creation of children because children, unlike widgets, can get hurt and, of course, they are not produced on an assembly line.

2) Should family law rules prevail such that the terms contained within a surrogacy agreement which provide that biological parents do not need to support their child in the circumstances described above be invalid?

3) What role, if any, should the government play? To what extent should the surrogacy contract be regulated by provincial law?

The Assisted Human Reproduction Act, 2004 S.C.,c.2 (“Act”) is federal legislation which was proclaimed, in part, on April 22, 2004. On April 22, 2004, all of the prohibitions (sections 5 through 9) came into force except section 8 which came into force on December 1, 2007. Section 6 deals with surrogacy and, in brief, provides that payment of compensation to a surrogate is a prohibited activity under the Act (reimbursement of expenses is currently permitted). The prohibitions related to surrogacy in the Act do not deal with the enforceability of surrogacy contracts because the validity, including civil enforceability, of a surrogacy agreement is a matter of provincial law.

To date, no surrogacy contract has been challenged in a Canadian court, but it may only be a matter of time and it will be interesting to see how a court grapples with this complex issue.
 

Have a great day!

Kathryn Pilkington — Click here for more information on Kathryn Pilkington.

01 Nov

How charitable are you?

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

I thought I would start off this week’s blogs by discussing planned giving. Planned giving provides a mechanism for people to contribute to programs that they support. In this way, people are able to target their philanthropic efforts towards programs that they believe will improve communities. The book, The Art of Giving: Where the Soul Meets a Business Plan, captures this idea perfectly and I recommend it as a must read. The authors, Charles Bronfman and Jeffrey Solomon, recognize that giving is meaningful and personal. So, for example, individuals who love animals may decide to donate part of their estates to animal welfare organizations.

So how do you want to improve your community? What about willing your body to a “body farm”? This is 1 of the 10 suggestions made in a CNN Report written by Elizabeth Cohen entitled “Ten uses for your body after you die”.

The body farm, as it is known, is located in Knoxville, Tennessee and has 650 skeletons scattered over 2.5 acres so that anthropology students are able to study bodies in varying stages of decay for the purposes of learning about body identification and time of death analysis.

If your charitable inclination is to donate your body to the University of Tennessee Forensic Anthropology Center (aka the body farm) click here.

If you’re undecided, check out the Art of Giving. It’s a good place to start if you are considering providing for charitable donations in your will.
 

Thanks for reading!

Kathryn Pilkington – Click here for more information on Kathryn Pilkington.

10 Sep

Judge doesn’t like juror’s facebook post during trial

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Serving on a jury is one of our most fundamental civic duties. It can, however, pose hardships on those individuals summoned to the jury box, particularly when one considers the financial impact of giving up your income while acting as a juror.

Despite the financial hardship associated with jury duty, it is a serious undertaking and should be seen as such. As a juror, you are required to play an active role in the administration of justice and, together with other citizens, you will be required render a verdict of guilt or innocence in a criminal matter.  

A recent article in the Globe & Mail with the above captioned-title underscores the importance of taking jury duty seriously. 

A Michigan woman, summoned to be a juror, posted on her Facebook page that it was “Gonna be fun to tell the defendant they’re GUILTY”

Alarmingly, her post was found by the defence team BEFORE it had even started its case.

The next day, the juror found herself removed from the jury. Judge Druzinski told the Michigan woman that it did not matter whether she used Facebook to express an opinion or simply spoke to a friend about the case.

“You violated your oath. … You had decided she was already guilty without hearing the other side”

By October, 1, 2010, the Michigan woman must submit an essay about the 6th Amendment to the U.S. Constitution and pay a $250 fine.

Have a great weekend!

Kathryn Pilkington – Click here for more information on Kathryn Pilkington.

08 Sep

VIRTUAL LAW OFFICES GAINING POPULARITY IN INTERNET AGE

Hull & Hull LLP General Interest Tags: , , , , , , 1 Comment

If you are a subscriber to the Hull & Hull LLP Toronto Estate Law Blog, you know that I am a relative newcomer to the blogging world.  What you couldn’t know is that I’m also a late convert to all things wireless and virtual.

My life is, for the most part, hard-wired. I still have a land line. I’m ashamed to admit that my printer is connected to my laptop by a cable. I insist on sending old-fashioned ‘snail-mail’ letters to friends and family, and when I’m throwing a party, I send a paper invitation!

I could go on ad nauseum, but you get my point: my life is not really organized by way of wireless technologies and virtual realities.

However, I’m intrigued by the idea of organizing my life, at least my work life, virtually. I was, therefore, drawn to the article in the September 3, 2010 issue of Lawyers Weekly with the above-captioned title.

The article was written by Luigi Benetton and he suggested that adding a virtual office to the physical office can, potentially, expand the market of a firm. According to the American Bar Association eLawyering Task Force, a virtual firm is “characterized by access by the firm’s clients to a password protected and secure web space where both the attorney and the client may interact and legal services are consumed by the client.” This type of lawyering, where the traditionally face-to-face meeting is not always necessary, certainly does create an additional medium for firms to connect with clients.

Hull & Hull LLP joined this virtual world in June 2008 when it launched an e-office on Second Life, a popular internet based virtual world created entirely by its residents. The office is used as an alternative medium to provide useful information for those seeking our firm’s expertise. 

While there are benefits of elawyering in terms of client service, there are pitfalls that make the virtual office a difficult reality. Our managing partner, Suzana Popovic-Montag, noted in the above-captioned article that elawyering is not well suited for every area of law and, by way of explanation, she noted that elawyering is “more difficult when you have litigation matters. There’ll still be examinations for discovery and court appearances, plus law society requirements to prove that clients are who they say they are.”

In the end, it seems that my hard-wired life style is not at risk of becoming obsolete any time soon. Rather, virtual mediums are proving to provide our firm with an additional platform for clients to connect with us and access important legal services.

Thanks for reading!

Kathryn Pilkington – Click here for more information on Kathryn Pilkington.

26 Aug

How ‘predatory marriages’ affect property and estates

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

The August 13, 2010 edition of Lawyers Weekly featured an article by Kimberly Whaley with the above-captioned title. The article dealt with the relationship between marriage, property, and estates and the resulting risk of predatory marriages.

I think it’s safe to presume that the majority of people believe that once they have executed a Will, their carefully considered estate plans are locked in. However, the provisions people make for their loved ones upon their death are not exactly locked in. According to Ontario law, marriage automatically revokes a Will.

While shocking for many people, there are ways to avoid this unwanted consequence of marriage. For instance, where a person executes a Will in contemplation of marriage, his or her testamentary plans will survive the marriage.

The automatic revocation of a Will can lead to unfortunate and unintended results, particularly when individuals have capacity to marry, but lack the capacity to manage property and/or execute a Will. In such circumstances, a person who lacks testamentary capacity may end up the target of a greedy opportunist looking to marry for money.

In Ontario, where a person’s Will is revoked upon her marriage and she dies, her estate is distributed under succession law as if she died without a Will. According to the Succession Law Reform Act (“SLRA”), when the deceased, who dies intestate, is survived by a spouse and there are no issue, the surviving spouse takes all property of the deceased’s absolutely. Where the deceased dies with a net value of more than the “preferential share” and with a surviving spouse and issue, the surviving spouse is entitled to the preferential share, being $200,000, absolutely. After the preferential share is distributed to the surviving spouse, the surviving spouse is entitled to a distributive share, which varies with the number of children or issue surviving. If, for example, there is a surviving spouse and one child, the excess above and beyond the $200,000 is allocated equally between the spouse and the child. Where there is a surviving spouse and more than one child, the spouse is entitled to a third of the excess and the remainder is divided equally between the children. 

The scenario that immediately comes to mind is one where an elderly and frail individual is preyed upon by a younger person who sees the marriage as an opportunity to abscond with the property of the elderly spouse who lacks capacity to manage property during his/her life or execute a Will.

In my next blog, on September 6, 2010, I discuss this topic in more detail, focusing on why predatory marriages are, perhaps, too easily accomplished.  

07 Jul

LOVING YOUR ANIMALS TO DEATH?

Hull & Hull LLP Estate & Trust, Pets Tags: , , , , , , , , , , , , 0 Comments

My blog posts this week have been inspired by a Globe and Mail article that a summer student handed to me about the late Gail Posner’s trust provisions for her dogs, Conchita, April Maria and Lucia.

In yesterday’s blog I noted that while Wills are an opportunity for individuals to provide for their loved ones, there is no guarantee that our stated wishes for our beloved companion animals will be sacrosanct. For example, the late Leona Helmsley’s $12-million trust for her dog Trouble was reduced to $2-million by a Manhattan Judge on the ground that the deceased lacked capacity with regard to her Will and the Trust Agreement.

In the Globe and Mail article that inspired my posts this week, Barry Seltzer noted that Canadian legislatures may wish to consider “ante-mortem” probate as a way to ensure capacity does not become an issue in these cases. Ante-mortem probate is a technique used in certain states, including Arkansas, North Dakota, and Ohio, to validate a will while the person is still alive so that it cannot be contested once the person passes away.

In some cases, the wishes of a testator regarding his pets are contrary to public policy and, thus, are held to be void. For example, some pet owners have included clauses in their wills directing that their pets be euthanized upon their death (perhaps because they feel that their animals will be distraught without them). 

In one such case a testator (Mr. Clive Wishart) directed that the Royal Canadian Mounted Police (“RCMP”) shoot four of his horses. The RCMP refused and the matter was brought to a New Brunswick Court where it was held that the direction to shoot “four healthy animals” was contrary to public policy because doing so would serve “no useful purpose” and “would be a waste of resources and estate assets even if carried out humanely.” 

For those of you interested in reviewing the case, the citation is: Wishart Estate (Re), [1992] N.B.J. No. 547.

Thank you for reading!

Kathryn Pilkington – Click here for more information on Kathryn Pilkington.

06 Jul

DEVOTION TO DOGS A SIGN OF INCAPACITY?

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

Pets are becoming increasingly important to Canadians. According to a 2001 IPSOS-REID "Paws and Claws" pet ownership study, more than half of all Canadian households owned a cat or a dog in 2001, with one third of households owning cats and one-third owning dogs.

Since Wills are an opportunity for individuals to provide for their loved ones, it’s not surprising that people are choosing to make provision for their beloved animal companions. However, there is no guarantee that their wishes will be sacrosanct.

In a recent Globe and Mail article, Barry Seltzer (a Toronto estates lawyer) noted that this was certainly the case for the late Leona Helmsley who left 12 million dollars in Trust for her beloved Maltese named Trouble and left nothing to 2 of her grandchildren for “reasons that are known to them.”   As a result of a Will Challenge (and as noted in an earlier blog post), the Trust was undone by a Manhattan Judge who reduced it to  $2-million (much to the chagrin of Trouble, I am sure) and the disinherited grandchildren were awarded $2-million each. The basis: incapacity.

And because I know you are all wondering about Trouble, let me assure you that while the deceased’s wishes were not carried out exactly as she had intended, recent reports indicate that Trouble is doing just fine! If you don’t believe me, click here.

Yesterday I discussed the more recent headliner involving the Estate of the late heiress Gail Posner who left a mansion valued at approximately $8.3-million as well as $3-million in trust to her 3 dogs, while leaving only $1-million to her only son, Bret Carr. Well, I’m sure it will come as no surprise to you that Bret Carr has initiated litigation against the Estate. It appears that he is seeking to have his late mother’s Will revoked on the grounds that her level of devotion to her dogs is a sign of mental illness *gasp – dog lovers unite* and that household aids drugged her, convinced her that Bret was trying to kill her and induced her to change her Will and Trust Agreement.

Thank you for reading!

Kathryn Pilkington  – Click here for more information on Kathryn Pilkington.

05 Jul

ANOTHER ESTATE GOES TO THE DOGS

Hull & Hull LLP Estate & Trust, Pets Tags: , , , , , , , 0 Comments

There has been a great deal of discussion about the late Leona Helmsley who, when she died, left 12 million dollars in Trust for her beloved Maltese Trouble, while leaving nothing to 2 of her grandchildren for “reasons that are known to them.”

Well it’s happened again…another estate is going to the dogs! Our summer student forwarded me a Globe and Mail article discussing the provisions that the late heiress Gail Posner made for the benefit of her fabulously famous Chihuahua Conchita and her 2 other dogs, April Maria and Lucia. These pampered pooches are to receive an $8.3 million mansion and a $3-million trust fund under her estate while the deceased’s only son, Bret Carr, takes a meagre $1-million in comparison.

According to the terms of a Trust Agreement (amended by the late heiress in 2008), so long as she had dogs at the time of her death, the trustees:

1.  are to retain the mansion property (located in Miami Beach) plus a sum of money not more than $3-million to cover the carrying costs of the mansion.

2.  shall pay $5-million to Elizabeth Beckford to care for Conchita, April Maria, and Lucia. I note that the deceased provided that they are to be cared for with “the same degree of care” they received while Posner was alive (which, I suppose, will mean the continuance of their weekly doggie spa appointments).

Upon the death of the dogs, the mansion is to be sold and the proceeds are to go to charity. The remainder of the estate (after certain specific bequests) goes to animal shelters, breast cancer prevention, and suicide-prevention centres.

Those are some lucky dogs (shhhhh – don’t tell my dogs, Digger and Nicky. They’re spoiled enough)

Thank you for reading!

Kathryn Pilkington – Click here for more information on Kathryn Pilkington.

25 Jun

How has the G20 impacted your professional and non-professional life?

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

It’s Friday, June 25, 2010 and as a result of the G20 summit, I am blogging remotely – from the comfort of my own home. As you know, the leaders from the G20 countries are meeting in Toronto this year to discuss key issues in the global economy.

The road leading to the summit has been a rocky one. I believe the words "fake lake" pretty much sums it up.

And you should be aware that there are traffic restrictions in effect today. For a list of the major highways with partial and full closures today through to Sunday, click here.

Even the judiciary has been impacted! If you are practicing in the area of estates, you are well aware that there were no judges sitting yesterday and there are none sitting today. My colleagues, Natalia Angelini and Paul Trudelle, noted that this was a topic of discussion at the recent Dinner with the Honourable Estates List Judges. 

Well, it’s not just the courts that are closed today. In the Globe and Mail‘s ‘local view’ blog, which is dedicated to keeping us up to date on the "disruptions" and "drama" that Toronto has experienced in the lead up to the G20 summit, Siri Agrell informs us things have become personal. What could be so personal for Torontonians? Apparently the LCBO announced that it would close 7 of their stores.

If you’ve noticed that your local LCBO store is closed today and you need to stalk up for that party you’re holding tomorrow evening (perhaps to celebrate recovery and new beginnings – this year’s G20 theme), click here.

Enjoy your weekend!

Kathryn Pilkington – Click here for more information on Kathryn Pilkington.

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