The Estate House

RCMP Burial Dispute - the Final, Final Update

I have discussed here and here about the dispute over the remains of Constable Leo Johnston, one of the four Mounties murdered at Mayerthorpe, AB in March 2005.  His widow, Kelly Basness (Johnston) had received permission from the Director of Vital Statistics in 2007 to disinter her late husband's remains and move them from Lac La Biche, AB to the National RCMP cemetery in Regina, SK.   Constable Johnston's mother, Grace Johnston, as well as several members of his extended family, opposed the move.   The Director's decision was made on the basis of her status as his spouse at the time of his death, and the decision was upheld in October 2007 by the Alberta Court of Queen's Bench on an application for judicial review.  Grace Johnston further appealed the Court of Queen's Bench decision to the Alberta Court of Appeal.

Today, the Alberta Court of Appeal released its ruling in favor of Kelly Basness.   While Grace Johnston and the Johnston family are understandably upset with this decision, it is unlikely that they will appeal to the Supreme Court of Canada, or that if they do appeal to the Supreme Court that the Court will agree to hear their argument. 

As I've stated before, one way to try to avoid these kinds of disputes is to ensure that you have a Will that appoints the person you would want to have make that decision as your executor (also known as personal representative).  Otherwise, you may have the Director of Vital Statistics giving authority to make that decision to someone based on how they rank on a list, not according to who knows you and your wishes best. 

Update: Who Should Decide

In mid-December, I told readers about the saga of Samuel Golubchuk, a Winnipeg man whose family was fighting to keep him alive on life support.  Mr. Golubchuk's doctors had deemed that he was beyond saving and told his family that his life support would be removed.  The Golubchuk family went to court to seek an injunction preventing this removal.  They were successful in obtaining an injuction, pending further review of the court.

On February 13, the Court of Queen's Bench in Manitoba upheld the injunction and directed the matter to trial "as soon as possible."  See the Winnipeg Free Press' account here.

The issue seems to be who has the right to decide when to pull the proverbial plug: family members or the treating physician.  Two weeks before the Court's decision, the Manitoba College of Physicians and Surgeons had issued a new guidelines saying that the final decision to pull life support rests with the physician, but allows families a four-day window to seek counsel on their options (one of which includes seeking a court injunction).  The College has said that it will not be reviewing those guidelines.

The decision makes clear that there is currently no law (at least not in Manitoba and definitely not in Alberta) that gives doctors the absolute final say in these matters, no matter what the doctors themselves might think. 

Of course, much of this could be clarified if patients have a Personal Directive (AB) or Living Will or Health Care Directive that clearly indicates who they would like to have make these types of decisions on their behalf.

No doubt there will be much more to come as this matter winds its way through the courts.   

 

The Saga Continues for the Godfather of Soul

Last week, almost exactly a year after his death, James Brown's children filed court documents formally challenging their father's will.  They are alleging undue influence at the hands of his advisors who stand to make money from managing the trusts set up in the will. 

Undue influence is a very difficult allegation to prove when it comes to invalidating a will.  In Alberta, the courts will first presume in favor of the testator's intention.  Those seeking to invalidate the will must then provide evidence of suspicious circumstances and undue influence.  If the court finds that suspicious circumstances were present, it is up to those propounding the will to rebut those circumstances and show that they had no effect on the testator. 

The reason why these allegations can be so difficult to prove is because the primary witness is deceased.  As a result, any evidence usually comes from third parties (i.e. friends, doctors, etc.) who can provide their interpretation of the testator's state of mind at the time the will was executed.   It is sometimes easier to prove undue influence when mental capacity is also an issue; however, if it is not, then the courts are traditionally very respectful of a testator's intention and will not disrupt it unless there is clear, substantiated evidence of undue influence. 

From Tax Tool to Nation Builder

As is common at the end of the calendar year, various publications are announcing their version of "person of the year".  Today, the Globe and Mail announced Don Johnson, an investment banker from Manitoba, as its Nation Builder for 2007.

I had never heard of Don Johnson (at least not this Don Johnson) before this article, but I was familiar with the accomplishment for which he was receiving recognition.  Mr. Johnson is considered to be the primary advocate responsible for changes to the federal Income Tax Act that allow publicly-traded securities to be donated to charity without incurring capital gains tax on the disposition of those securities. 

This is an incredible tool that estate planners have been eager to recommend to their clients as a way of minimizing their tax bill, both on an annual basis and as part of their will.  If one of our clients wishes to make a donation to charity from their estate, we will always include wording that will allow their executor to make that donation with publicly-traded securities.  If you want to enable your executor to have that power, you need to make sure that the wording in your will is correct; your executor must be specifically empowered to make that donation with publicly-traded securities in order for your estate to receive this tax benefit. 

Personal Directives Amendment Act 2007

Last week a flurry of activity surrounded the Alberta legislature as the government tried to pass as many bills as possible prior to the Christmas break.  While most of the media attention centred on a couple of the more contentious legislation, an astonishing 25 pieces of legislation passed third reading during a marathon session of the legislature on December 3 and 4.

One of the new bills is the Personal Directives Amendment Act 2007, which I discussed here.  It received Royal Assent on December 7.  Practitioners in this area, including not only lawyers, but also health care workers, should make themselves familiar with the changes to the legislation. 

Getting her Rights Back

Several years ago, Flora L'Heureux had some medical problems.  Her issues were such that an application was made to have a Trustee and Guardian appointed to manage her finances, property, and to make personal care decisions on her behalf.  Since 2003, the Public Trustee has been acting in this capacity. 

Then Flora recovered.  She wanted to look after herself.  Unfortunately, current Alberta legislation made it somewhat difficult for her to do so.  She had to go to court to have herself declared compentent.  Yesterday, Madame Justice Veit of the Alberta Court of Queen's Bench ruled that Flora could regain control over her social life, education, and day-to-day activities.  The decision left control over her legal affairs, finances, and place of residence with the Public Trustee.  Flora then requested that a civil trial be held to determine whether or not she should have control over all of her affairs.  A decision from Justice Veit is expected today. 

Flora is backed the Elder Advocates Society of Alberta, who used the decision yesterday as an opportunity to call for a public inquiry into the Dependent Adults Act, the Personal Directives Act, the Powers of Attorney Act, and the Mental Health Act.  They argue that it is too easy for someone to be declared incapacitated under these acts.   

It is unfortunate that the society didn't do their homework.  In fact, the government is just completing a legislative review of the Personal Directives Act and the Dependent Adults Act and amendments to both of these Acts are currently before the legislature.  The proposed amendments include a revised, more extensive, process under the Dependent Adults Act for determining incapacity.  The amendments to the Personal Directives Act include a process for determining whether a maker has regained capacity.  Furthermore, the current procedure provides that orders made under the Dependent Adults Act must be reviewed, at a maximum, every six years.  When an order is reviewed, the applicant is obligated to provide evidence of the dependent adult's continuing incapacity.  If no such evidence is provided, the order may not be renewed. 

Heli Munroe is Coming Home!

I have blogged on the Helena Munroe matter here and here.  As a brief summary, Heli (as she is known), an Alzheimer's patient, was taken out of the country by family relatives in November 2005.  Although her husband, Sandy, held an Enduring Power of Attorney granted by Heli, his attempts to get his wife back to Nova Scotia were futile...until now.

I was pleased to read in the National Post today that Heli is on her way home.  The courts in Nova Scotia upheld Sandy's power of attorney in 2006 and the Canadian High Commission eventually located Heli in a mental institution in her native England.  However, before Britain would allow Sandy to bring his wife back to Nova Scotia, he had to undergo an investigation by a panel designed to protect the interests of vulnerable adults.  Last week they gave him the go-ahead to bring Heli home. 

Sandy Munroe, while pleased to have his wife back, is understandably frustrated with the length of time this process has taken.  He is also upset that his wife's brother will not be charged with abduction.  It has been a wake up call for vulnerable adults and their families across Canada that even an Enduring Power of Attorney may not protect you.  It's a situation that must change.

Update on Cemetery Dispute

A few months ago, I posted about a labour dispute at Montreal's Notre-dame-des-Neiges Cemetery that was preventing hundreds of burials.

Apparently, after 47 (!) rounds of negotiations, management and the workers have finally reached a resolution.  However, they anticipate that it will take months to clear the backlog of burials. 

I wonder, are those families who couldn't bury their loved ones going to be allowed to have graveside services at times of their choosing?  Who is going to be responsible for paying the costs of storing these bodies over the summer months? 

Building a Bridge in the Desert

You may have heard how Leona Helmsley, a New York property developer and the "Queen of Mean" passed away recently.  Yesterday her will was made public when it was filed in Surrogate Court in New York.  You can read more about it here.

The big news about Helmsley's will is that she left $12 million dollars to her Maltese dog, Trouble.  Trouble himself (or herself?) was left to Helmsley's brother.  There were also instructions for where Trouble is to be buried (beside Helmsely herself in the family mausoleum).   I had to smile when I read this because just yesterday I was speaking with some clients about their estate plan when one of them joked how "we should just leave it all to the dogs".    Personally, I think the idea of leaving that kind of money to a pet is a bit ridiculous; it's probably just money that is to be used to provide for Trouble's care, set up in a trust for her brother to manage. 

Helmsley's will also has an interesting provision whereby two of her grandsons receive $5 million each, provided that they visit their late father's grave at least once per year.   It doesn't say who will be responsible for ensuring that the brother's make the pilgrimage.  It is also not clear how this will be enforced.  The likely scenario is that, should they fail to visit their father's grave, they will have to pay the money back to the estate.

There are a number of other unique bequests/requests in Helmsley's will.   To me, it seems to have a "build a bridge in the desert" flavor about it.  As a colleague of mine says, we can advise our clients about the prudence or rationality or logic of setting up their estate plan in a certain way, but if they ask for a bridge in the desert, then it's our responsibility to help them build it (within legal means of course).  I'm fairly positive that had the lawyer Ms. Helmsley asked to draw up this will cautioned her about some of her bequests.  I'm also positive, given her reputation, that had he (or she) refused to do it, she would have fired him and gone to see someone who would follow her instructions. 

Someone who would build her bridge.   

Why Determining Who Died First Can Be Important

By now, most people have heard about the tragedy of Chris Benoit.  The wrestler, who grew up in the Edmonton area, is believed to have killed his wife and young son before strangling himself this past June.   Unfortunately, despite having an estate worth several million dollars, neither Benoit or his wife had a will and now a dispute has emerged over who should properly inherit all of this property.

Nancy Benoit's mother, Maureen Toffoloni, has asked the court to determine the order of death.  This is because under Georgia succession laws, if the boy was killed before his mother, then her beneficiaries (i.e. Mrs. Toffoloni) would inherit the Benoit estate.  However, if Nancy was killed first, then the beneficiaries will be Benoit's two children from a previous  marriage, who live near Edmonton with their mother.

We recently had a case where death order was an issue.   A parent and child had been killed in the same accident and the parent did not have a will.  The Alberta Survivorship Act is set up to deal with situations where death order is uncertain.  Section 1 of that act says that where death order is uncertain, the older person is presumed to have died first.   Seems simple enough, doesn't it?

However, s. 2 goes on to refer to statutes that contain a "provision...for the disposition of property operative if a person designated in the statute... (a) dies before another person,.." It goes on to state that when the "designated person dies...in circumstances rendering it uncertain [whether the designated person survived another person], then, for the purpose of that disposition, the case for which the statute provides is deemed to have occurred."

The Alberta Court of Appeal considered the interplay between these provisions of the Survivorship Act and the Intestate Succession Act in Re Mandin Estate.  The Mandin Estate case was similar to the Benoit situation in that multiple murders had occurred, the order of death was uncertain, and competing family members were the potential beneficiaries.  Unlike the Benoits, the Mandins had a will, but there was a partial intestacy as all of the family members (except the murderer) had died and there was no provision for what was to happen to the Estate in that circumstance.   

In Mandin Estate, the Alberta Court of Appeal ruled that the Intestate Succession Act, as it provided for the distribution of property, was one of the statutes referred to in s. 2 of the Survivorship Act.  Applied to our fact situation, instead of the presumption that the child had survived the parent (a la s. 1), since the Intestate Succession Act provides for a case of what happens on the parent's death if the child does not survive her, it is deemed that the child did not survive.   Our application for a grant of administration was prepared based on this reasoning and the court agreed, as we received our grant just this week.

Of course, the easiest way to avoid these situations at all is to have a will with a proper beneficiary survivorship clause (i.e. Any beneficiary must survive me for at least 30 days or else he or she will have been deemed to have predeceased me).    That way it doesn't matter who died first, so long as it was within the 30 day period.