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. 

RCMP Burial Dispute - Final Update

While I was correct in predicting the outcome of the recent application objecting to the disinternment of Cst. Leo Johnston, it turns out that the argument centred on something different.  I guess that is a hazard of relying solely on reported evidence. 

I had suggested that Kelly Basness (also known as Kelly Johnston) would be successful in being allowed to disinter her husband's remains and move them to the RCMP depot in Regina based on her standing as administrator of her husband's estate.  However, according to Johnston v. Alberta (Director of Vital Statistics) 2007 ABQB 597, the court case centred on whether the Director of Vital Statistics applied the appropriate tests and followed the correct procedure when deciding to issue the permit to disinter to Kelly.   It was an application for judicial review of the decision, with Justice Thomas determining that based on the standard of reasonableness, the decision the Director made to issue the permit would stand.

What is interesting to note is that s. 11 of the Cemeteries Act General Regulation, Kelly Basness had priority to Leo Johnston's parents in determining his final resting place because she was his spouse, not because she was administrator of his estate.  In fact, the Regulation only recognizes personal representatives named in a will and does not mention administrators at all.  However, as Justice Thomas referenced in his decision, that section is likely there to deal with cases where there is a dispute as to the initial disposition of remains.  In most circumstances, the decision as to disposition of remains must be made before there can be any proceedings taken to appoint an administrator.

RCMP Burial Dispute - Update

The Edmonton Journal is reporting this morning that Kelly Johnson has won the right to move her husband's body from Lac la Biche to the RCMP depot in Regina.  The article does not say on what basis the decision was made, but as soon as I am able to locate a copy of the written decision, I will provide more details.

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. 

Does it count if it's not read out loud?

I was reading this morning about Nina Wang, the Chinese multi-billionaire who died last week.  Nina inherited much of her wealth from her husband after he was kidnapped in 1990.   His body was never found and he was declared dead by a Hong Kong court a few years later.  Nina had her husband's power of attorney, which enabled her to manage his business affairs (he owned a large corporation called Chinachem), but after he was declared dead all of that was put on hold until they had a "reading of the will."   After that all heck broke loose, but that's for another post.

If you've seen a movie or television show where a character has died, you'll be familiar with the concept of having a "reading" of the will.  Usually the family gathers in a study or library of some sort with dark panelling on the walls, and the family lawyer stands behind a desk and reads out the will.  I think that the movies and tv is the only time that this ever actually happens, but I might be wrong. 

Contrary to public belief, there is no requirement that the deceased's will be read out loud to members of the deceased's family, at least not here in Alberta.   In fact, the only people who are entitled to even see a copy of the will are the individuals who are mentioned in it and anyone who might have a dependent's relief claim (spouses or adult interdependent partners, dependent children, and adult children who are unable, by reason of physical or mental disability, to earn a livelihood).  That's it. 

Now usually it's a good idea for the executor/trustee to keep everyone in the loop.  That's the easiest way for them to avoid any accusations of impropriety and to keep things as transparent as possible.    But that doesn't mean that they are obligated to provide anyone and everyone a copy of the will.  Even those individuals who inherit under the will usually receive their copy of the will when they receive the application for probate submitted by the executor/trustee.  So if you're wondering what's Mom or Dad's will, find out who the executor is and ask. 

But, you say, it's not always that simple.  I know, and that's what I'll discuss in my post...

The Supreme Court & Same-Sex Survivor Benefits

On March 1, 2007, the Supreme Court of Canada (SCC) handed down its ruling in Canada (Attorney General) v. Hislop 2007 SCC 10. You can read the full judgment here.

Since the SCC's landmark ruling in M v. H, same-sex couples have been entitled to apply for survivor benefits under the Canada Pension Plan.  The CPP was amended in 2000 to enshrine these benefits in law.  However, the 2000 amendments specified that these benefits only applied to individuals whose spouse died before January 1, 1998.  The Hislop decision deemed this requirement unconstitutional, as it discriminates between same-sex and opposite sex couples. 

The effect of this decision is to allow individuals whose same-sex spouse died before January 1, 1998 to apply for survivor benefits.  They are, however, limited to one-year of retroactive payments; despite arguments that payments should be retroactive to April 17, 1985 (the day s. 15 of the Charter came into force), the SCC said that to do so would be ignorant of the evolution of same-sex rights in Canada and would tantamount to awarding compensatory damages for the underinclusiveness of same-sex rights in the CPP prior to the ruling in M & H in 1999.   Since the government had been acting in good faith, there was no legal basis to allow these retroactive payments beyond one -year.

Another interesting issue that arose during the course of this litigation was the right of estates of the surviving spouse to bring applications for retroactive survivor benefits.  This matter became somewhat crucial as Hislop himself died while this case was pending on appeal.  The SCC ruled that same-sex couples are subject to the same 12-month limit of the estate of surviving spouses to bring claims as opposite-sex couples are.  In other words, if a surviving spouse died prior to claiming their survivor benefits under the CPP, their estate has 12 months from the death of the survivor to claim those benefits.

On an unrelated note,  I found it interesting that the summary on the SCC website has "spouse" in quotation  marks when referring to a same-sex couple.  I thought we had moved beyond the distinction between spouses in same-sex relationship and those in heterosexual relationships (certainly that's the essence of this decision), but perhaps not.... 

May They Rest in Peace (Finally!)

Exactly two weeks after she died, a Florida judge made a ruling yesterday on where the remains of Anna Nicole Smith should be buried.   Actually, he didn't rule on where she should be buried, just on who got to make that decision.  However,  Judge Larry Seidlin made clear what he thought the deceased's model's wishes were before giving custody of her remains to Richard Milstein, the court-appointed guardian of Smith's infant daughter.   Shortly after Judge Seidlin's decision, Mr. Milstein announced that he would be taking Smith's remains back to the Bahamas to be buried beside her son.

Even without Judge Seidlin's innappropriate display of emotion from the bench (he cried, had to take a break, and "blubbered"), all of the legal matters that have arisen from the death of Smith have taken on the tone of a parody of the justice system.  I keep waiting for one of the parties involved to give a sly smirk to the audience before announcing, "Live from New York it's Saturday Night!"  We all deserve better.

It's interesting from a legal perspective to see a lawyer appointed as a child's guardian when her parentage is in dispute.  That is not a practice that I'm familiar with here in Canada, although it doesn't sound like it's uncommon in Florida.  I don't believe that the child is living with Mr. Milstein, so this is obviously strictly for legal purposes until her paternity is settled.  Usually in situations where an obvious guardian does not present him/herself, the child is put into foster care until the dispute is settled, or sent to live with an impartial third party (i.e. family friend) rather than having a court-appointed guardian.  Little Dannielynn's paternity should be settled within a few weeks.  It took a backseat while the burial was in dispute. 

If Anna Nicole Smith needed to be buried soon because of the state of her body, the family of James Brown were in no hurry to decide on his final resting place.  Following his death on Christmas Day, they kept his body in a temperature-controlled room  before moving him to a crypt, where he has "resided" for the past several weeks.

Finally, just one day before the Smith decision, Brown's children and spouse agreed on a burial place.  The exact location will be kept secret, but he will be buried.  It took nearly two months, but a peaceful decision was made.  That's got to make him feel good.

And I know that the point of all of this is obvious, but please - write your wishes down.  Find an executor you trust.  Make a Will.  Unless, of course, you're satisfied with having the court make these decisions for you.   

Anna Nicole: What will estate lawyers do without her?

As nearly everyone knows by know, Anna Nicole Smith, celebrity, died yesterday in Florida under mysterious circumstances.  While her celebrity arose out of a myriad of projects, she is also well known for her involvement in one of the highest profile estate litigation lawsuits in the U.S. over the past several years.

In 1995, Smith married 89-year-old billionaire J. Howard Marshall, who died a mere 15 months later.  Shortly thereafter, Smith discovered that her elderly husband had left her nothing in his will.  She sued his son, E. Pierce Marshall, for interfering with her right to receive support from J. Howard's estate in Texas state court.  Then it got really interesting.

In 1996, Smith filed for bankruptcy in California federal court, claiming that E. Pierce's actions were responsible for her dire financial situation. Similar to Canada, in the U.S., estate & probate matters are regulated by the state, while bankruptcy is a federal matter.  A couple of counterclaims were filed by each party in federal court and in 2000, the court awarded Smith $475 million dollars, ruling that E. Pierce was involved in a conspiracy with the estate's lawyers to prevent Smith from receiving part of the estate. Smith, apparently feeling like justice had been served, withdrew her initial lawsuit.

E. Pierce, of course, appealed this ruling to the federal district court, saying that the district court had jurisdiction over probate matters, thanks to a little known exception that allows federal courts jurisdiction over estate matters only if it doesn't interfere with state probate proceedings.  The federal district court agreed, but threw out the bankruptcy court's decision in favor of doing its own review.  It's review essentially found the same as the bankruptcy court, but lowered Smith's award to $88.5 million.  Smith - 2, E.Pierce - 0.

Meanwhile, E. Pierce had filed his own action in Texas state court to determine the validity of J. Howard's will.  In 2001, the Texas state court ruled that the will was valid, meaning that Smith wasn't entitled to anything.

He caught another break in 2004, when his appeal to the Ninth Circuit was successful.  The Ninth Circuit ruled that the district court had interfered with state probate proceedings in its ruling.

So Smith appealed to the United States Supreme Court, which agreed to hear the case.  On May 1, 2006, the Supreme Court found in Smith's favor, holding that a federal district court had concurrent jurisdiction with state probate courts in in personam cases. 

All of that was thrown into a bit of dissaray when E. Pierce died just a month after the verdict.  His widow is now acting on behalf of the estate.  It remains to be seen what will happen now that Anna Nicole herself has passed away.  Whether someone will decide to continue arguing the case on behalf of her beneficiaries (which at this point include her husband, Howard K. Stern, and baby daughter, Dannielynn) remains to be seen.

Today, a judge in California ruled that Anna Nicole's body must be preserved pending the hearing of a paternity suit involving Dannielynn.   Why the body would need to be preserved is unclear, although concurrent speculation that her husband may have been supplying her with an excessive amount of prescription drugs makes the whole thing really suspicious.

It's a sad, tragic tale.  It would appear that the only people benefitting from all of this are the lawyers hired to sort everything out.   Let's hope for all of us that it gets sorted out soon.

 

James Brown Burial Watch: Day 43

That's right.  43 days after his death on Christmas Day and James Brown is still not buried.  As I had mentioned in an earlier post, his burial is one of a myriad of issues that is being affected by a dispute between the singer's children, his trustees (one of whom is his lawyer), and his (alleged) widow.

It's complicated, but it shakes down like this:

First, most of James Brown's assets (i.e. his home, intellectual property, etc.) were put into a trust while he was still alive, in what's called an Inter Vivos trust.  That means that his will, which divided his property among six of his children, only dealt with personal possessions.  Those possessions, as I understand it, have been divided as requested.

Second, the children are disputing how the trustees are administering this trust.  They are alleging all kinds of fraud and have made an application to have the trustees removed.  This application will be heard on February 9 (this Friday).

Third, James Brown's wife, Tomi-Rae Hynie, is saying that she should be entitled to part of the singer's estate.  The trustees and James Brown's older children are arguing that the Brown-Hynie marriage was invalid, meaning she is entitled to nothing.  The son of James Brown and Tomi-Rae Hynie was left out of James Brown's will, as he was not specifically named.  At the very least, Ms. Hynie would like to get back into the home she shared with Brown to retrieve her personal possessions.  The house/crypt is included in the contents of the trust and the trustees have so far refused her access.  She has also made an application, which is scheduled to be heard at the same time as the one above.

In short, quite a mess.  Of course, an update will follow the February 9 application.