Tag: weisberg

02 Jul

Thoughts About Art

Noah Weisberg Executors and Trustees, In the News Tags: , , , , , , , , , , 0 Comments

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.

Noah Weisberg

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30 Jun

Changes to Consent and Capacity Board Coverage

Noah Weisberg Capacity, In the News Tags: , , , , , , , , , 0 Comments

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:

    1. 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
  1. 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.

Noah Weisberg

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29 Jun

Don’t Worry Be Happy

Noah Weisberg Capacity, Health / Medical Tags: , , , , , , 0 Comments

Yes, you’re reading this blog on a Monday.  As week days go, Monday isn’t nearly as fun as a Thursday, or Friday.  But that doesn’t mean you should be unhappy.  A recent study purports that repetitive negative thinking is linked to cognitive decline.

The authors of the study propose that repetitive negative thinking may be a new risk factor for dementia.  Based on various tests, the study found that when compared to non-pessimists, people who think negatively have a greater buildup of certain proteins in the brain that cause Alzheimer’s disease (the most common type of dementia), a worse memory, and greater cognitive decline.

Based on this correlation, it is believed important to think happy thoughts.  Whether you are a glass half empty or half full kind of person, the brain can be trained to be more optimistic.  This can be done in a number of ways, including:

  • meditating – one study found that only 30 minutes a day over a two week period produced a measurable change in the brain
  • practicing gratefulness – taking a few minutes each day to write down what you are thankful for
  • reframing negative thoughts –changing your perspective on a situation to give more of a positive or beneficial meaning to you

As Bobby McFerrin sings, ‘In every life we have some trouble / But when you worry you make it double / Don’t worry, be happy / Don’t worry, be happy now’.

Happy Monday,

Noah Weisberg

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30 Mar

The Trustee’s Duty to Invest During COVID-19

Noah Weisberg Executors and Trustees Tags: , , , , , , , 0 Comments

There is so much in flux right now due to COVID-19.  In the area of estates and trusts though, the obligations that an estate trustee owes to beneficiaries remains stable.  During this time, estate trustees need to consider how best to administer an estate, and what they should be doing to limit future claims against them.  The purpose of today’s blog is to consider the estate trustee’s duty to invest.

According to section 27(1) of the Trustee Act, “In investing trust property, a trustee must exercise the care, skill, diligence and judgment that a prudent investor would exercise in making investments”.  This is often referred to as the prudent investor rule.  Section 27(5) sets out certain criteria the trustee is required to consider in investing trust property, including, amongst other things, the general economic conditions and the possibility of inflation or deflation.

Given the current market fluctuations, estate trustees need to give invested trust property considered attention.  While they cannot be expected to produce resounding returns for the beneficiaries, they can take steps to make sure their investments are prudent in the circumstances and avoid future claims from beneficiaries.  These could include claims that the estate trustee failed to properly invest trust assets or that they failed to exercise their discretion.

The estate trustee should consider doing at least four things.  First, they should review the terms of the will as to whether there are any specific investment requirements.  Second, they should contact their investment advisor to obtain professional advice and share any relevant terms of the will.  Third, the estate trustee should ask the investment advisor to put their advice/comments in writing and the estate trustee should hold on to this.  Fourth, if the trustee is afforded some sort of discretion (for instance, considering the interests of capital versus income beneficiaries), the trustee should prepare a memorandum to themselves.  The memorandum should set out the reasons why they reached the investment decision that they did and the factors they considered, which should include the section 27(5) criteria.

Stay safe and wash your hands,

Noah Weisberg

Please click on this link to see our COVID-19 related resources,  as well as these related blogs:

02 Jan

Feeling Good into 2020

Noah Weisberg Estate Planning, General Interest, In the News, Uncategorized, Wills Tags: , , , , , , , , , , 0 Comments

It is the start of a new year and a new decade.  Many of us recently enjoyed some holidays and had much to eat and drink.  Many of us are also feeling the lingering effects of this merriment.  I figured that an uplifting, feel good read would be a nice way to start 2020.  I was thus delighted to learn about Eva Gordon, and her estate.

Ms. Gordon passed away at the age of 105.  She grew up on an orchard in Oregon, never graduated from college, and worked as a trading assistant at an investment firm in Seattle.  In 1964, she married her husband, who was a stockbroker.  They did not have any children together.  Neither Ms. Gordon or her husband came from money, and they lived a modest life.  Ms. Gordon’s godson, who was the Estate Trustee, joked that if Ms. Gordon and her husband went out for lunch or dinner, then they would make sure to bring their Applebee’s coupon.

From the salary that Ms. Gordon received from her employer, she purchased partial shares in numerous stocks, including oil and utility companies, and was an early investor in Nordstrom, Microsoft, and Starbucks.  Unlike many at that time, Ms. Gordon held onto these valuable stocks.  As a result of this shrewd investing, Ms. Gordon’s wealth increased considerably over the latter years of her life.

Instead of wasting away her money, in her Will, Ms. Gordon decided to bequeath $10 million to various community colleges, with about 17 colleges each receiving cheques for $550,000.  Interestingly, no stipulations were put into place as to how the money was to be spent by the colleges.  The colleges could do with the money as they wished.  For many of them, it was one of the largest donations they had ever received.

For an interesting perspective on the impact of donations to modest, as opposed to elite, institutions, you should listen to Malcolm Gladwell’s Revisionist History podcast (episode 6).

Noah Weisberg

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31 Dec

Champagne Poppin’ & Will Plannin’

Noah Weisberg Estate Planning, New Years Resolutions Tags: , , , , 0 Comments

It is the end of 2019.  I therefore of course feel the need to use this blog to urge you to resolve to either make a will if you do not already have one, or, if you already have one, to review your current estate plan to see if it requires updating.

Why the urgency you might ask?  The answer lies in the most festive of NYE tipples – champagne!

Apparently, approximately 24 people die annually from being hit by champagne corks.  In fact, it has been alleged that more people die as a result of being hit by a champagne cork, than from poisonous spiders.  This article highlights the death of a Hong Kong billionaire by champagne while celebrating his 50th birthday.  As he opened a celebratory bottle of champagne, the cork hit the businessman in the temple causing a fatal brain hemorrhage.  His death was confirmed on the way to the hospital.

Champagne corks as a cause of death have received much doubt and there have been steps to debunk as a ‘myth’.  For instance, according to this article, the average rate at which a champagne cork exits a bottle is about 24.8 miles per hour.  In extreme circumstances, if there was up to 3 bars of pressure, a cork could reach speeds of 60 miles per hour.  Regardless, these speeds are not enough to cause a cork to be deadly.

 

So, while death by a champagne cork may not be a valid reason to urge you to consider your estate plan, there are many other good reasons as discussed in these related Hull & Hull blogs:

HAPPY NEW YEAR!

Noah Weisberg

30 Dec

The First Last Will

Noah Weisberg General Interest, Wills Tags: , , , , , , 0 Comments

With the new year approaching, it is customary to turn one’s attention to the year ahead in the making of resolutions.  In today’s blog though, instead of looking forward, I thought that I would look back – waaaaaayyyyy back – to the oldest Last Will and Testament.

The oldest last will and testament was discovered in 1890 by William Petrie, an English Egyptologist.  While exploring the pyramids in Kahun, Egypt, Petrie came across a parchment/papyrus from 1797 BC that was determined to be the last will of Ankr-ren.  The will was written in hieroglyphics.

Ankr-ren’s will left all of his property to his brother, Uah (who was stated to be a priest).

Uah’s last will was also discovered.  Uah’s will gifts the property he receives from Ankr-ren to his wife, Teta, forbids his wife from demolishing any house received by Ankr-ren, and names a guardian for his child.  The last will also had two witnesses.

Remarkably, or perhaps not, the terms of these ancient wills bear so many resemblances to modern day wills requirements found in Ontario’s Succession Law Reform Act.  For instance, they include the ability to freely gift property, to appoint a custodian/guardian for a minor child, and include two witnesses.

Noah Weisberg

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03 Oct

A Solicitor’s Duty and Will Drafting

Noah Weisberg Estate & Trust, Estate Litigation, Estate Planning, Wills Tags: , , , , , , 0 Comments

What is a solicitor’s duty when preparing a Will?

Those seeking to answer this question should start their journey with the BC Court of Appeal decision of Chalmers v Uzelac.  Here, Madam Justice Southin noted that, “every solicitor who, as part of his or her practice, draws wills should read, mark and inwardly digest at least once each year the judgment of Sir John Alexander Boyd, C. in Murphy v. Lamphier (1914), 31 O.L.R. 287, the Canadian locus classicus on a solicitor’s duty in taking instructions”.

Murphy is a seminal case.  The Court found that it was wrong to assume that because a person can understand a question put to them, and give a rational answer, that they are of sound mind and capable of making a Will.  Instead, the Court emphasized that capacity must be judged in light of the nature of the act and all of the circumstances:

“A solicitor is usually called in to prepare a will because he is a skilled professional man. He has duties to perform which vary with the situation and condition of the testator. In the case of a person greatly enfeebled by old age or with faculties impaired by disease, and particularly in the case of one labouring under both disabilities, the solicitor does not discharge his duty by simply taking down and giving legal expression to the words of the client, without being satisfied by all available means that testable capacity exists and is being freely and intelligently exercised in the disposition of the property. The solicitor is brought in for the very purpose of ascertaining the mind and will of the testator touching his worldly substance and his comprehension of its extent and character and of those who may be considered proper and natural objects of his bounty. The Court reprobates the conduct of a solicitor who needlessly draws a will without getting personal instructions from the testator, and, for one reason, that the business of the solicitor is to see that the will represents the intelligent act of a free and competent person.”

Expanding on this, the Ontario Court of Appeal in Hall v Bennett Estate references an article by M.M. Litman & G.B. Robertson which identifies common errors that have been either the subject of criticism by the courts or the basis of liability for professional negligence in the preparation of a Will, including failing to: obtain a mental status examination; interview the testator in sufficient depth;  properly record/maintain notes; test for capacity; and, provide proper interview conditions.

Read, mark, and inwardly digest this blog at least once a year accordingly.

Noah Weisberg

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01 Oct

Art & Taxes (& Estates)

Noah Weisberg Estate Planning Tags: , , , , , , , , , , , 0 Comments

I try to seize every opportunity I can to learn about art.  In preparing today’s blog, I was intrigued to read about the UK’s Cultural Gifts Scheme and its relationship to estates.

The Cultural Gifts Scheme & Acceptance in Lieu allows UK taxpayers to donate important works of art and other heritage objects in return for a tax reduction, which includes inheritance tax.  The donated work is then held for the benefit of the public or the nation at an eligible museum or gallery.  According to this article from the Guardian, the Scheme was first introduced in 1910 as a way of allowing individuals to offset inheritance tax bills, and later, in 2013, to allow individuals to be able to make donations during their lifetime in order to offset future tax liabilities.

Any art admirer should have a look at the 2018-2019 Annual Report which provides a list of items that were received, along with some pretty pictures of the items :).  It is a feast for the eyes and the senses.  Some of the highlights include:

  • a Portrait of the Emperor Charles V by Peter Rubens, which has gone to the Royal Armouries in Leeds
  • a platinum and diamond necklace with black velvet ribbons, convertible to a brooch, made by Cartier in Paris c. 1908-1910, which has been allocated to the Victoria and Albert Museum
  • 361 botanical drawings by the illustrator Florence Helen Woolward
  • Bernardo Bellotto’s painting of Venice on Ascension Day, which settled £7 million of tax
  • Damien Hirst’s Wretched War sculpture, given by the artist’s former business manager Frank Dunphy settling £90,000 in tax

In Canada, although art can be subject to capital gains, and possibly other taxes, it is possible for a donor to limit, or avoid the tax altogether, including by way of claiming a charitable tax credit.  Individuals thinking about estate planning and/or donating art should seek the advice of a professional advisor to maximize the amount of savings.

Thanks for reading,
Noah Weisberg

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30 Sep

Should a Millennial Have a Will?

Noah Weisberg Estate & Trust, Estate Planning, Wills Tags: , , , , , , , , , 0 Comments

I am not sure why, but whenever I talk to my friends about the benefits of having a Will, they seem to dismiss the advice, thinking that Wills are only meant for old people.  I was thus delighted to come across this article which highlights millennial-centric reasons for having a Will, some of which are as follows:

Digital Assets – while many millennials attest to not being flush with cash, many are flush with digital assets.  I have previously written about my digital presence, admitting that I have two personal e-mail addresses, four social media accounts, and so many points through reward programs such as Aeroplan, Indigo, Greenhouse Juice – the list goes on and on.  These assets carry both a financial and personal value.  Millennials preparing a Will should think about how they wish to transfer these assets.

Young Children – if a child is a minor, under the Children’s Law Reform Act,  it is possible for a testator to appoint one or more persons to have custody of that child in a Will.  It is also possible to set up a trust in the Will to ensure that the child’s inheritance is spent responsibly.  I often tell people that in making a Will, do not think of it as being done to benefit oneself (i.e. the testator), but to benefit and help your loved ones.  Being able to take care of minor children is a great example of this.

Pets Pets Pets – without engaging in the dog vs cat debate, it is suffice to say that many millennials have pets.  In fact, millennials these days are opting for pets over parenthood – just walk through Trinity Belwoods Park on a Saturday afternoon.  In Ontario, pets are considered property, and thus require specific estate planning.  Some options include leaving a cash legacy to a pet guardian or setting up a trust for a pet guardian, both of which can be accomplished in a Will.

Hoping that my millennial friends now agree that Wills aren’t just for old people!

Noah Weisberg

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