Tag: Stuart Clark

03 May

Hull on Estates #465 – Contemporaneous Capacity Assessments

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This week on Hull on Estates, Paul Trudelle and Stuart Clark discuss contemporaneous capacity assessments. For a link to the paper by Dr. Kenneth Shulman discussed in the podcast, please click here http://bit.ly/1TgJCnl.

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22 Mar

Hull on Estates #459 – Neuberger v. York: the inquisitorial role of the court, and the applicability of the estoppel doctrines in a will challenge.

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This week on Hull on Estates, Jonathon Kappy and Stuart Clark discuss the Court of Appeal’s recent decision of Neuberger v. York, 2016 ONCA 191, and the inquisitorial role of the court in the context of a will challenge, and the applicability of the doctrines of estoppel by convention and estoppel by representation in a will challenge.

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09 Feb

Hull on Estates #453 – Mortgage Insurance and Intestacy

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This week on Hull on Estates, Paul Trudelle and Stuart Clark discuss the recent decision of Re: Estate of Richard Lewis Crane, 2016 ONSC 291, and the issue of whether mortgage insurance should be taken into account when calculating the “net estate” available for distribution on an intestacy

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21 Jul

Can a Power of Attorney release unpublished literary works?

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This past week Harper Lee published Go Set a Watchman, her first book since To Kill a Mockingbird was first released in 1960. While the book has been released to much fanfare, becoming the most pre-ordered book in the publisher’s history, an equally as interesting story (at least to an estates lawyer) has emerged regarding questions surrounding Ms. Lee’s capacity, and whether it was truly ever Ms. Lee’s intention to have the book released.

As recently outlined in an article in Bloomberg, Go Set a Watchman is a sort of “lost manuscript” of Ms. Lee’s, having itself been written in the mid-1950s before To Kill a Mockingbird was ever written. It was apparently rediscovered by Lee’s lawyer while recently looking through a safety deposit box. Ms. Lee herself is presently 89 years old and resides in a nursing home, having previously suffered a stroke in 2007. Much of her daily life is now apparently managed by her Power of Attorney.

Ms. Lee famously rarely ever spoke publically following the release of To Kill a Mockingbird, having become an almost sort of social recluse, never publishing any further works or giving interviews. To this effect, when news broke that Go Set a Watchman would be published, and that Ms. Lee’s Power of Attorney had supposedly played a prominent role in seeing to its publication, questions immediately emerged regarding whether it was ever truly Ms. Lee’s intention to release Go Set a Watchman.  While those around Ms. Lee are quick to point out that in their opinion Ms. Lee is capable, and has consented to the release of Go Set a Watchman, as outlined in the Bloomberg article the questions still remain.

Without commenting on the specifics of Ms. Lee’s scenario, the supposed fact pattern itself, whereby a famous novelist for decades refuses to give interviews or publish any further works, only to allegedly later have their unpublished works released by their Power of Attorney, offers an interesting hypothetical. In Ontario, presuming that there are no further restrictions in the Power of Attorney document itself, an Attorney for Property may do anything on behalf of the grantor except execute a new Will. To this effect, if such a famous novelist had executed a standard Power of Attorney for Property, and their Attorney for Property later discovered unpublished works, it would be fully within the rights of the Attorney for Property to release such works on behalf of the grantor.

From a practical standpoint, should such a novelist wish to execute a Power of Attorney for Property, and should they not want their unpublished works to be released, it would likely be as simple as including a carve out in the Power of Attorney which would simply provide that the Attorney for Property did not have the authority to consent to the release or in any way deal with the unpublished works. Without such a provision being included however, the Attorney for Property would arguably have the authority to consent to the release of the unpublished works on behalf of the grantor.

Thank you for reading.

Stuart Clark

09 Jul

Hull on Estates #423 – Succession Law Reform Act

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Today on Hull on Estates, David M. Smith and Stuart Clark discuss the definition of “spouse” within the meaning of Part V of the Succession Law Reform Act, and the factors that the court will look to in determining whether two parties are common law spouses within the meaning of the Act, with particular attention paid to whether two parties must live under the same roof to be considered common law spouses.

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04 Jun

Hull on Estates #420 – The Inheritance Wars

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This week on Hull on Estates, David M. Smith and Stuart Clark discuss the recent Macleans cover story “The Inheritance Wars”, and the general trends in estate litigation.

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01 Apr

Hull on Estates #412 – Will drafting at Walmart

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Listen to Hull on Estates #412 – Will drafting at Walmart

This week on Hull on Estates, Natalia Angelini and Stuart Clark discuss the recent article from Precedent Magazine outlining the growth of legal services (including estate planning) being offered at locations such as Walmart. Natalia and Stuart also continue the conversation which we have recently been having on our blog regarding the potential positives and negatives of these kinds of services.

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27 Feb

Hull on Estates #407 – Parson v. McGovern

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Listen to Hull on Estates #407 – Parson v. McGovern

Today on Hull on Estates, Jonathon Kappy and Stuart Clark discuss the recent Parson v. McGovern decision and the circumstances under which a court may compel an Estate Trustee to make an interim distribution to the beneficiaries.

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09 Jan

Hull on Estates #402 – The role of the Office of the Children’s Lawyer

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Listen to Hull on Estates #402 – The role of the Office of the Children’s Lawyer

Today on Hull on Estates, Paul Trudelle and Stuart Clark discuss the role of the Office of the Children’s Lawyer. Specifically, they discuss a recent publication which the Office of the Children’s Lawyer has released answering frequently asked questions regarding what role their office plays. A copy of the publication can be found here.

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16 Dec

Hull on Estates #400 – Releases and the distribution of an estate

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Listen to Hull on Estates #400 – Releases and the distribution of an estate

Today on Hull on Estates, Paul Trudelle and Stuart Clark discuss the recent article “Release Me: An analysis of the law surrounding the use of releases in the estate and trust context” by Arieh Bloom published in the Estates, Trusts and Pensions Journal. Specifically, they discuss whether an Estate Trustee can require a beneficiary to execute a release before seeing to the distribution of an estate.

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