Expecting An Inheritance? You Might Not Be Getting One

Investor’s Group, a financial services company in Canada, recently released the results of a survey regarding people’s expectations when it comes to receiving an inheritance or leaving one to others. 

53% of Canadians expect to receive an inheritance and apparently most except to get a bit of a windfall.  Of those who believed they knew how much they would receive, 57% expected their inheritance to exceed $100,000.   

These expectations are not in line with what people who have already received an inheritance reported getting.  Of those who were willing to reveal the amount they had inherited, only 18% reported receiving over $100,000 while 26% revealed receiving less than $5,000.  It seems that some of the beneficiaries-in-waiting out there might be in for an unpleasant surprise!

Different age groups had different expectations about receiving an inheritance.  While 80% of those aged 18-29 anticipated receiving an inheritance, respondents aged 30-44 were more modest in their expectations with 62% expecting to receive one.  Baby boomers weren’t so optimistic – 48% of Canadians aged 45-64 thought they’d inherit money. 

What people expect to receive is not necessarily in line with what people expect to leave behind.  45% of Canadians aged 60 and over are concerned that their savings will be depleted during their retirement and that they will not have any money to leave behind.  25% are not willing to make any personal sacrifices in order to leave others an inheritance.

Despite these expectations, many people report never discussing the terms of their parents wills with them.  Of Canadians whose parents currently have wills, 39% say they’ve never discussed the contents.  61% of those whose parents have died leaving a will said that they had not been previously aware of the contents.   

Happy Holidays & See You In January

Dear Readers -

After a hiatus, my blog returned last week and will now be published on Tuesdays and Thursdays. 

As (un)luck would have it, last Thursday I had a freak accident which resulted in a trip to the emergency room and 16 (count 'em!) staples in my knee.  The good news is I'll be fine - although I'm still achy at this point!  The bad news is (I hope you'll understand) blogging isn't top of my mind right now. 

I'm going to take the rest of December off my blog and will see you back here in January on Tuesdays and Thursdays. 

Have a Merry Christmas and a Safe and Happy New Year!


Oh Yay! You Now Have 0.2 More Years to Get it All Done!

Those who feel like there are never enough hours in a day to get everything done are in a for a break – they now have more years than ever to complete their unending “to do list”.  According to Statistics Canada, life expectancy in this country has hit a new high. 

For those born between 2006 and 2008, life expectancy is now 80.9 years.  This is an increase of 0.2 years from 2005 – 2007.  Okay, so that might not mean much to the middle aged crowd with bulging inboxes…but at least the pre-school aged future multi-taskers will have more time!

Those born in British Columbia are best off, with a life expectancy of 81.4 years.  Ontario comes in at 81.3 years and Quebec at 81 years.  Those born in the territories have the lowest life expectancy at birth – 75.2 years. 

Women still have a longer life expectancy than men, although the gap between the two is closing and the life expectancy of men is increasing at a faster rate than that of women.  Men’s life expectancy (for those born between 2006 – 2008) is 78.5 years, which represents an increase of 0.2 years since 2005 – 2007, while women’s life expectancy is 83.1 years – an increase of 0.1 years.    

There’s also some good news for the baby boomers – life expectancy at 65 has also increased.  For the period of 2006 – 2008, life expectancy for this group is 20 years, an increase of 0.2 years since the last measurement was taken in 2005 – 2007. 

So…you may be able to get through all those unanswered emails and voicemails after all!    

Gatti Estate Dispute Almost Settled?

Members of the family of Arturo Gatti appear to be close to settling litigation involving the deceased boxer’s estate.  Gatti died in 2009 and was survived by his wife, their son, and a daughter from another relationship. 

Gatti’s cause of death is murky.  He was found dead in an apartment he was renting with his wife at a resort in Brazil.  Initially, Brazilian police identified Gatti’s wife as the prime suspect in his death and alleged that she’d strangled him with a purse strap while he slept.  However, the final report of an investigation into his death concluded that he had committed suicide.  Gatti’s family have refused to believe he committed suicide and his mother and his daughter are currently suing his wife in a wrongful death lawsuit. 

Approximately three weeks before his death, Gatti made a will leaving his entire estate to his wife.  The value of his estate is unclear – it has been estimated that it was worth $6 -$8 million at his death but at present it is currently worth about $3.5 million. 

After Gatti’s death, his family alleged that he had made a will in 2007 in which he left everything to his mother and his daughter.  However, no one has produced a signed copy of the will. 

In a trial which is currently ongoing in Montreal, Gatti’s family is seeking to have his final will (in which he left his estate to his wife) set aside on the basis that he was subjected to undue influence when the will was signed.  Over the weekend, negotiations between the parties appeared fruitful and they were hopeful they would reach a settlement this week.

Man Jailed After Targeting Facebook Memorial Pages

When someone dies, his or her social networking footprint hangs around.  Facebook allows the relatives of a deceased user to convert the user’s profile into a commemorative page (which allows the user’s friends to pay respects on his or her wall while removing the user from public listings and cutting notifications from the user's account – such as ‘happy birthday’ reminders). 

While access to the commemorative pages is restricted to the user’s friends, sometimes friends and family will start a separate “tribute” page, which is open to the public to view and can easily be joined.  Unfortunately, these types of pages can be targeted by those with nefarious intentions. 

A twenty-five year old man in the United Kingdom has been sentenced to jail after targeting Facebook tribute pages and posting messages and videos mocking the deaths of several teenagers, none of which he knew.   

After a sixteen year old girl died in a car accident he defaced pictures of her by adding crosses over her eyes and in one picture inserted the words “used car for sale, one useless owner”.  In another situation, a fourteen year old boy had been stabbed to death and the man created a group called “Jordan Cooper in Pieces” with a profile picture of a knife dripping blood.    

While the man did not deny he had defaced the Facebook pages, he argued that his behavior was mitigated by the fact that he suffered from Asperger’s syndrome.  Specifically, he said that the disorder resulted in his inability to judge the reactions of others.  He also stated that he had an alcohol problem. 

The magistrate of the court found that the man had caused “untold distress to already grieving friends and family” and that the offences were sufficiently serious to warrant a custodial sentence.  Ultimately, the court imposed a sentence of eighteen weeks in jail and granted a five year anti-social behavior order prohibiting the man from using social networking sites. 

Memorabilia from John Wayne's Estate Up for Auction

John Wayne, the American actor perhaps best known for the Westerns he starred in, died in 1979 at the age of 72.   Thirty years later he remains as popular as ever –  earlier this year, a Harris poll named him as the third most popular actor in the United States (coming in behind Johnny Depp and Denzel Washington).   His fans are in for a real treat – his family members are putting up for auction a collection of Wayne’s personal belongings. 

The auction, which is being run by Heritage Auctions in Dallas, Texas is the first single-owner auction of Wayne’s belongings since his death.  The 700 items available include the Golden Globe award that Wayne won for “True Grit”, a Stetson cowboy hat that he wore in “The Man Who Shot Liberty Valance”, and a costume from “Sands of Iwo Jima”.  Wayne’s family’s explanation for putting the items up for auction is that his fans had always been tremendously important to him and this was the family’s way of trying to maintain the connection. 

For those interested, public exhibitions of the items will occur in New York and Dallas in mid/late September.  An exhibit and the auction itself will happen in Los Angeles October 3 – 6.  Online bidding is also available

Frozen in the Afterlife

Usually, when people think about what they want done with their body when they die, the options are  limited to burial or cremation.  However, in a recent interview, former American Idol judge, Simon Cowell, stated that when he dies he wants his remains to be cryogenically frozen.

Cryopreservation involves preserving a human body at an extremely low temperature in the hopes that resuscitation might be possible some time in the future.  Cowell’s rationale is he has nothing to lose – if medical technology never advances to the point that he can be revived then he’s no worse off than he was to begin with – and if it does then all the better for him. 

Cryopreservation is no laughing matter – some people take the issue very seriously.  After the death of Red Sox great Ted Williams, a dispute erupted amongst his children about what should be done with his body.  He’d left a will in which he’d stated his desire to be cremated and for his ashes to be spread along the Florida coast. 

However, after Williams’ death his son produced a handwritten note apparently signed by Williams (and two of his children) which stated they all wanted to be frozen when they died in the hopes of being revived and reunited sometime later.  At present, his head and body are in different containers and suspended in liquid nitrogen at Arizona’s Alcor Life Extension Foundation.   

All of this raises an interesting question – what should happen to the estate of a cryogenically frozen person?  Should it be distributed to the individual’s beneficiaries or should it be preserved so it’s still there in the event the frozen individual can be brought back to life in a few decades?

Saying Good-Bye to Fido...On the Cheap

An economic downturn is a time when many people scale back – including, the Los Angeles Times reports, on pet funerals.  While people still seem willing to spend money on their living pets, there’s been significant belt-tightening when it comes to bidding Fido and Fluffy a final farewell. 

While pricey burials were once en vogue, the recent trend has been towards pet cremation.  In the United States, there are about 290 pet cemeteries and crematoriums and saying good bye to a pet doesn’t come cheap. 

A pet burial might set you back $800; however, a cremation comes in at a much more economical $80 (the actual price will depend on the weight of the pet).  Additionally, by opting for cremation, pet owners are able to save money on burial-related accessories, such as caskets (which, at the Sea Breeze Pet Cemetery in Huntington Beach, California, go for as much as $375) and grave markers (which start at $275).  

The increase in popularity of pet cremation has had positive financial effects for some pet cemeteries.  Sea Breeze operates its crematorium six days a week.  Additionally, cremation-related items such as urns and memorial items are seeing increased demand. 

For the pet owners who want to keep things eco-friendly, green funerals aren’t just limited to people – there are options available for pets as well.  Let Your Love Grow is an eco-friendly line that offers biodegradable urns and burial items aimed to break down cremated remains over time so that the nutrients can be released to the soil.       

Was Oz Munchkin Victim of Power of Attorney Abuse?

Financial abuse of the elderly is, unfortunately, an increasing problem.  The aging population and increasing rates of dementia are factors that are leaving seniors exposed to exploitation by friends or family members.  Currently, approximately 500,000 Canadians suffer from dementia and that number is expected to more than double over the next generation.  

As I have blogged about previously, having a power of attorney for property in place appointing a substitute decision maker to act when the grantor of the power of attorney no longer has the capacity to make decisions is a good idea.  However, unfortunately it is not uncommon for the person named as attorney to use his position to take advantage of a vulnerable senior and to misuse his authority. 

While examples of power of attorney abuse include the extremes, such as outright theft or changing title to assets, it can also be more subtle – such as an attorney who is also the main beneficiary of an estate not making appropriate expenditures for the incapable person’s benefit so as to protect his own inheritance. 

The recent saga involving the estate of Mickey Carroll, best known for playing a Munchkin in the Wizard of Oz is a good example of the dangers of power of attorney abuse.  Apparently, after Carroll’s death in 2009 his relatives became concerned that there was money missing from his estate. 

They hired a private investigator to look into the situation and the investigator’s findings have resulted in the relatives suing Carroll’s former caretaker and three of her friends for more than $500,000.  In their lawsuit, the relatives allege that during a time when Carroll was suffering from dementia, the caretaker and her friends convinced him to grant a power of attorney in their favour. 

The suit further alleges that after obtaining the power of attorney, the caretaker and her friends convinced Carroll to take out a sizeable line of credit against his home and not long after that he started signing cheques made out to “cash” for tens of thousands of dollars – something that was inconsistent with his prior spending habits. 

The relatives are seeking the return of the missing funds.  In an interview she gave not long after Carroll’s death, the caretaker characterized the allegations of the missing funds as being “foolish”. 

Court Battle Over James Brown's Estate Drags On

When James Brown died on December 25, 2006, he directed that his approximately $100 million fortune be held in a trust for the benefit of poor and needy children in Georgia and South Carolina.  Unfortunately, since Brown’s death his estate has been embroiled in litigation that shows no sign of ending any time soon

Less than a month after Brown’s death, his fourth wife and his seven children challenged his will on the basis of mental incapacity or undue influence.  In 2009, the parties appeared to have reached a settlement with the Attorney General in South Carolina in which Brown’s will was affirmed but the assets of his estate were divided between the trust and the family members – one-quarter was to go to the wife, one-quarter was to pass to Brown’s children, and half was to be used to establish the charitable trust. A probate judge in South Carolina approved the settlement   

Unfortunately, this did not resolve the dispute.  Two of Brown’s former trustees (who had been removed from administering the trust) appealed the probate judge’s decision to approve the settlement to the South Carolina Supreme Court arguing that the intent of Brown’s will was clear and that the will had never been declared invalid.  Additionally, one of Brown’s former producers is also attempting to have the settlement set aside arguing that Brown had assigned all of his assets to the trust and had entered into a partnership with her allowing her to manage the trust.

It’s not yet clear how this will all end – but one thing seems obvious…the lawyers are guaranteed to benefit from Brown’s estate!

Does Your Will Include Posthumously Conceived Children?

I have previously blogged about post-death harvesting of reproductive material (so that a surviving spouse can conceive the child of a deceased partner) and the legal issues involved.  However, sometimes the material is collected (and potentially fertilized) while both partners are living and they consent to its use when one of them dies. 

Something that is important to consider in the estate planning context is whether it is desirable to make allowance for any children who are born after an individual’s death.  As a recent article in the Wall Street Journal discussed, it is becoming more common for infants to be born from assisted reproductive technology.   Between 1999 and 2008 the number of infants born  in the United States using assisted reproductive technology increased to more than 61,000 and the number of clinics offering crypto-preservation increased by 18% to 436. 

The law in the United States on the rights of children conceived after a partner’s death is far more developed than it is in Canada.  For example, 5 states have passed laws that allow posthumously conceived children to participate in trusts as beneficiaries.  Additionally, a number of states have enacted legislation specifying the rights of posthumously conceived children to an inheritance and to Social Security. 

For people who have created frozen gametes, it is worthwhile to consider and specify in a will what rights a posthumously conceived child should have to the deceased’s estate.  Equally important is giving careful to consideration to what is to become of reproductive material on a creator’s death – and it is essential to review any forms associated with banking the reproductive material to ensure the effect of the language of any agreement is understood. 

Are Nursing Home Patients Getting Adequate Care?

A recent article in the Globe and Mail raised the question of whether patients in nursing homes and long term care [“LTC”] facilities are getting adequate medical care from attending physicians.  The impetus for the article was a question from a reader asking what she should do about concerns she had about the LTC facility where her mother resided.  Apparently, the doctor who visited the facility every week appeared to be spending more time sitting in the nurses station reading nurses’ notes rather than making rounds and seeing patients. 

The article suggests that the doctor wasn’t necessarily doing anything wrong – but appeared to be doing the bare minimum his job required.  Apparently, part of the problem stems from the fact that doctors in Ontario are remunerated on a “fee for service” basis – meaning the doctor got paid as much for reading a patient’s chart as he did for examining the patient and, apparently, wasn’t motivated to do much else.

In the article, Dr. Paddy Quail, the president of the Long-Term Care Medical Directors Association of Canada, expressed concern that while, technically, the doctor may have been doing all that was required of him the situation still didn’t “seem right.”  He pointed out that LTC patients were mainly women, 85 and over, who suffered from dementia, and who would reside in the facility for an average of 18 – 24 months before dying.  As a result, comfort and ease of suffering were major goals of care for these patients.  

In Dr. Quail’s view, appropriate engagement with the patients should include helping to ensure comfort, employing strategies to prevent falls and other injuries, treating infections, and making sure medications are correct.  In addition, building a rapport and engaging in social interactions with patients is also important. 

As Dr. Quail points out, one of the reasons that families can be reluctant to speak up if they have concerns about the care or treatment being provided is a fear of retribution toward the patient.  Nevertheless, he views concerns such as the one raised in the article as being significant and encourages family members to raise them with the director of care for the facility in question.  

Marvel Wins Copyright Fight with Jack Kirby's Heirs

A judge in the US recently decided a dispute over the rights to various comic book characters between Marvel (and its parent, the Walt Disney Company) and the heirs of the late Jack Kirby. 

Jack Kirby was a comic book artist and author who co-wrote some of Marvel’s most iconic comic book titles, including Spider-Man, the Incredible Hulk, the Fantastic Four, and X-Men.  Marvel owns the right to those characters and, along with Disney, has made a fortune off various movie franchises involving them. 

In the United States, copyright law provides that, in some circumstances, creators or their heirs can regain copyright they have sold to characters or stories after a given number of years.  In 2009, Kirby’s heirs sent termination notices to Marvel, Disney, and other studios, expressing their intention to regain copyright to various creations starting in 2014.  Marvel responded to the termination notices by starting a lawsuit claiming that it owned the works in question.

The case turned on the character of Kirby’s employment relationship with Marvel when the works were produced – specifically, was Kirby an independent freelancer or were the works made at the “instance and expense” of Marvel?   

Marvel argued that it employed Kirby when the works were created and, as a result, owned the works.  Kirby’s heirs argued that Kirby had acted on a freelance basis and that, accordingly, they were entitled to send the termination notices and gain ownership of the works. 

Last week, US District Judge Colleen McMahon ruled in Marvel’s favour.  She found that the issue was not whether Kirby had created the works and characters in question but rather whether his work qualified as “work for hire” under the US Copyright Act of 1909 and in this case she found that it did.  Kirby’s heirs have said they intend to appear the ruling.  

Fight Ensues over Georgia Woman's Remains

On Tuesday of this week, a judge in Georgia will be asked to decide a dispute over who can take control of a deceased woman’s body and decide her manner of burial. 

Nique Leili vanished on July 9, 2011.  Two days later her husband reported her missing to police and two days after that he filed for divorce claiming that Ms. Leili had abandoned him and their two minor children. 

Ms. Leili’s body was found in a wooded area near her home on July 16, 2011.  Her husband has been named as a suspect in her death; however, he has not been charged with any crime and last week he released a statement denying any involvement in her death.

Ms. Leili’s daughter from a previous relationship has filed a court petition seeking to take control of Ms. Leili’s remains.  Georgia law stipulates that in the case of a death, the spouse is the next-of-kin and has the right to make funeral arrangements.  However, there is an exception to this rule if the spouse has been charged with murder or voluntary manslaughter. 

Ultimately, the judge will have to decide whether the fact that Ms. Leili’s husband had filed for divorce before her remains were discovered and is now a suspect in her death is enough to depart from the general rule that the spouse can decide the manner of burial. 

In Ontario, an individual’s burial is determined by his estate trustee.  In cases where there is a will, the executor named under it determines the manner of burial.  In situations where there is no will it will fall to the court to determine who is entitled to be appointed as estate trustee (I have previously blogged on the law regarding who plans a funeral when there's no named executor).

Heirs Fight With Government Over Coins Worth Millions

An interesting estate dispute is being litigated in the United States over the ownership of exceedingly rare Depression-era gold coins.  The case, which is currently before a federal jury in Philadelphia, pits the heirs of the deceased gold dealer Israel Switt against the United States government.  At stake are ten $20 Double Eagle gold coins, minted in 1933, which currently carry a value of at least $7.59 million each. 

Switt died in 1990 at the age of 95.  In 2003, his daugther found 10 Double Eagle gold coins in Switt’s safety deposit box.  The coins are dated 1933 and considered extremely valuable because although they were minted they were never released.  In the 1930s, the US government minted approximately 450,000 of the coins; however, President Roosevelt ordered that they be melted back into gold bars to stem the risk of gold hoarding during the Great Depression. 

When Switt’s daughter found the coins she took them to the U.S. Government for authentication and was hoping to find out they were worth millions.  Instead, officials at the U.S. Mint confirmed they were genuine and promptly confiscated them, saying that the only way that Switt could have come into possession of the coins was illegally.       

Switt's daughter then sued for the return of the coins.  In court the government is arguing that in the 1930s Switt was somehow involved in the theft of the coins – likely with the help of a cashier at the Mint.  It claims to have evidence that every coin that was not melted down and has since come to light can be traced back to Switt one way or another.  It alleges that the rightful owners of the coins are not Switt’s heirs but rather the American people. 

Switt’s heirs argue the government is over-reaching – that it should not be able to simply seize property from American citizens unless it proves it is entitled to.  They also argue that there is an alternate explanation to how the coins came into Switt’s possession other than that argued by the government.

It will be interesting to see what the jury decides…

"The Cleavers"?...More Like "The Tangled Family Tree"

Forget Ward, June, Wally, and Beaver -  as a recent article in the New York Times discusses, the modern family tree has started to resemble a “tangled forest.”

Census data from the United States indicates that for the last six years the number of unmarried households has exceeded married households.  Add to the mix an increasing prevalence of same sex marriages, sperm donors, and surrogacy, and defining who qualifies as “relatives” has started to get kinda complicated….and not just for intellectual reasons.  The changing family form has distinct legal implications. 

In Canada, the law has started to slowly grapple with diverse family relationships.  One example is the Ontario Court of Appeal’s 2007 decision in A.A. v. B.B. where it considered whether a child could have more than two parents.  Here, a same sex couple (AA and CC) wanted to have a child and sought the assistance of a male friend (BB).  The result was that CC and BB were the biological parents of the child.

AA and CC were to be the child’s primary caregivers; however, they all decided it would be in the child’s best interest for BB to be a part of the child’s life.  The problem that arose was that AA was not the child’s biological parent and that if she adopted him, BB would lose his rights as a parent. 

The Court of Appeal considered whether the court had the authority to declare that AA was also the parent of the child (along with BB and CC).  It ultimately decided that, pursuant to its parens patriae jurisdiction, it did.  The result of the decision was the child has two legal mothers (AA and CC) and a father (BB).

Obviously, cases like this are still relatively rare – but will likely continue to become more and more frequent.    

Is a Cottage a Worthwhile Investment or a Big Headache?

I’ve previously blogged about some of the headaches surrounding estate planning and the family cottage.  A recent article in the Globe and Mail queries whether a vacation property is a sensible investment or really just an emotional buy. 

As the article points out, buying a cottage can be an emotional experience.  It is often occurs not long after a successful cottage rental – a family becomes so enamored of the month they just spent renting on, say, Georgian Bay that it seems natural to snap up a cottage so they have their own to go to the next summer. 

However, as anyone who owns a cottage will attest, there’s a lot more involved than sitting on a dock in a Muskoka chair, beer in hand.  The article raises a few questions everyone should consider before taking an expensive leap:

  • How often would you really visit the cottage?  Summers in Canada aren’t long – with busy work schedules, other commitments, and travelling time will the cottage get a lot of use?   
  • What sort of property is best – is a rustic summer-only property sufficient or is winter use intended?
  • How much of a financial investment is necessary – the purchase price is only one part of the expense involved.  Other things to think about include property taxes and maintenance.
  • If financing is necessary, will it be available?  A mortgage might be available for a cottage that resembles a principal residence – however, a traditional mortgage might be harder to obtain if the property is more rustic. 
  • Will the cottage be rented out when not in use?  If so, that raises a slew of other issues to consider. 

Generally, if a cottage is held long enough, the investment will pay off.  But for those not interested in the responsibility and the commitment, renting is probably a better option. 

Happy Birthday to Canada (and our National Anthem)

Today is Canada Day, a federal statutory holiday in Canada, which celebrates the anniversary of the July 1, 1867 enactment of the British North America Act (now referred to as the Constitution Act, 1867).  It also marks the anniversary of “O Canada” being officially proclaimed as this country’s national anthem. 

“O Canada” was first performed on June 24, 1880 at a Saint Jean-Baptiste Day Ceremony.  The music had been composed by Calixa Lavallee, a Quebec-born composer, as a setting for a French-Canadian patriotic poem written by Sir Adolphe-Basile Routhier.  

The English version of “O Canada” (which is not a direct translation of the French version) was written by Robert Stanley Weir, a Montreal lawyer, in 1908.  The verses he wrote were published for the Diamond Jubilee of Confederation in 1927.

In the 1960s, a Special Joint Committee of the House of Commons and the Senate was struck to consider making “O Canada” the official national anthem.  In the circumstances, the committee decided it would be appropriate for the government to acquire the copyright to the song. 

Canadian copyright law provides that a work becomes part of the public domain fifty years after the death of the author.  There was no issue with the music, because Lavallee had died in the late 1800s.  However, a complicating factor related to the English words – the committee had proposed changes to some of Weir’s lyrics. 

Weir had died in 1926.  At the time the committee was considering the song Weir’s lyrics were not part of the public domain and his heirs did not approve of the proposed changes to the words.  After some research, evidence was found that established that the copyright to the English words had actually descended to George V. Thompson, a musical publisher.  Mr. Thompson agreed to sell the copyright to the government for $1, although the committee still wanted to settle amicably with Weir’s family. 

Finally, on July 1, 1980, the National Anthem Act proclaimed the French and modified English versions as the national anthem of Canada (and provided that the words and music would be part of the public domain)  – and what a good national anthem it is! 

Happy Canada Day to all the Canadians out there!

Anna Nicole Smith's Estate Loses Legal Fight

The fifteen-year saga started by Anna Nicole Smith against her late husband’s estate appears to have finally come to an end.  Smith (whose given name is Vickie Lynn Hogan) made headlines in the mid-1990s when the then-26 year old married 89-year-old J. Howard Marshall.

Marshall died just over a year after his marriage to Smith.  More than a decade prior, Marshall had established a trust, which had the effect that on his death his assets would pass directly to his son.  Smith brought a claim in Texas against Marshall’s estate alleging that after she married Marshall he had intended to set up a trust for her but that his son had interfered, the result being she received nothing from the estate.   

Along the way, Smith filed for bankruptcy in a California bankruptcy court.  Marshall’s son filed a claim against her in bankruptcy court alleging that she defamed him by having her lawyers make derogative statements about him in the press.  Smith counterclaimed and alleged tortious interference with the gift that Marshall had intended to leave her (essentially, the same claim she asserted in the probate proceeding in Texas).  The bankruptcy court sided with Smith, granting her summary judgment with respect to the claim Marshall’s son commenced and granting her judgment for about $425 million for her own claim. 

Since that time, the matter has bounced around the appeals courts with the parties arguing about whether the California bankruptcy court had the jurisdiction to adjudicate the claims or whether they were properly within the jurisdiction of the Texas probate court.  Smith died in 2007, but her estate continued to pursue her claim. 

Last week the United States Supreme Court settled the issue once and for all.  It found that while the California bankruptcy court had the authority to resolve Smith’s debts it did not have the Constitutional authority to decide the probate dispute.  A result of the decision is that Smith's estate is entitled to nothing from Marshall's estate. 

Is it "Back in the Closet" for LGBT Seniors?

A couple of weeks back, I blogged about the issue of bullying in nursing homes.  Social dynamics in nursing homes are a live issue – and one that will continue to become even more so as the population continues to age (and life expectancy continues to grow). 

A recent episode of the CBC Radio program, The Current, touched on the interesting issue of the dynamics at play with respect to Lesbian, Gay, Bi-Sexual, Transgender, and Transexual [“LGBT”] seniors in long term care facilities. 

As the program points out, by 2036 approximately 25% of the Canadian population will be over the age of 65.  In a “strength in numbers” sense, this might mean that elderly members of the LGBT community will find themselves in care facilities with others like them. 

However, a question that arises is whether care facilities are ready to accommodate this type of diverse population or whether seniors who, potentially, did not get the opportunity to “come out” until relatively late in life are discriminated against or even pushed back into “the closet.”

A recent entry in the Huffington Post discussed the documentary, “A Place to Live: the Story of Triangle Square”, which followed the attempts of several seniors to secure a place in Triangle Square, the first affordable housing facility for LGBT seniors in the united states.  While the documentary provides a hopeful outlook for members of the LGBT community in the United States, last week’s episode of the Current indicates that the current reality in Canada is quite frightening. 

A Slithery Reason Why It's Important to Have a Will

Here’s another one to add to the long list of problems that can arise when you die without a will: your family members might start fighting about what happens to your reptile collection. 

This is the issue that has plagued the estate of Karel Fortyn.  Mr. Fortyn died in early May of this year and was survived by his brother, his fiancée, and his common law spouse of 27 years from whom he had recently separated.

Chief amongst Mr. Fortyn’s personal effects was a collection of some 200 reptiles he kept in his Welland, Ontario home, including 150 venomous snakes and two very large crocodiles.  He owned the Seaway Serpentarium, which he had been operating from his house with the animals in enclosures.

After Mr. Fortyn’s death, a dispute erupted over who would decide the reptiles’ fate.  Pursuant to the intestacy rules in the Succession Law Reform Act, Mr. Fortyn’s brother is the sole residual beneficiary of the estate. However, his former common law spouse owned the house where the Serpentarium was located and believed that this gave her the authority to decide what to do with the animals. She donated them to the Indian River Reptile Zoo a couple of days after Mr. Fortyn’s death.  However, the Welland Humane Society seized control of the home a day later. 

Earlier this week the matter came before the Superior Court of Justice in Welland, and Justice Maddalena ruled that Mr. Fortyn’s brother has the authority to decide what happens to the reptiles.  Maddalena J. further ruled that the crocodiles should be removed from the Serpentarium as soon as possible and the balance of the animals should be removed within the next 21 days. 

Apparently, Little Ray’s Reptile Zoo in Ottawa will receive the non-venomous reptiles while Reptilia Zoo in Vaughan while receive the venomous reptiles. It is not yet clear what will happen to the crocodiles.   

Ontario Organ Donors Can Now Register Online

A new website in Ontario allows residents to register to be an organ and tissue donor with the click of a button – www.BeADonor.ca.

Previously, those who wanted to register were required to mail in a Gift of Life consent form or go to a ServiceOntario centre.  In return they received a donor card to carry with them.  Obviously, this was no perfect solution – besides the fact that donor cards are often lost, a major problem with them is that they are frequently out of date and do not prove that an individual is currently registered. 

Making it easier to register is a good thing – according to the Trillium Gift of Life Network (which is an Ontario government agency), only 20% of those eligible to register have actually done so (even though more than 80% indicate that they think it is important to provide consent to donate prior to death).  Each donor can save as many as eight lives and enhance up to seventy-five more.  In Ontario there are currently 1,500 people on waiting lists for transplants. 

In order to register, prospective donors must be 16 or older and have a valid Ontario Health (i.e. OHIP) Number.  It is important to register even if you have a donor card because a signed donor card is not recorded in the Ministry of Health and Long Term Care’s database and may not be available when needed. 

When a consent to donate has been registered, it is recorded in a government database.  In the event that an individual dies or it appears that death is imminent, his donation decision will be shared with family members so that appropriate arrangements can be made. 

The World's Richest Canine Has Gone to Whiskerville

Last week brought us the sad news that Trouble, the millionaire Maltese, has taken her final journey to the dog show in the sky.  For the uninitiated, Trouble was the beloved dog of Leona Helmsley. 

Helmsley died in 2007 leaving a will with some news-making provisions.  She excluded her two grandsons but left her beloved Trouble a trust fund worth some $12 million.  Her grandsons later challenged the will and a sympathetic judge reduced Trouble’s trust to $2 million – still, not bad for, well, a dog!

Unfortunately, Trouble’s post-Helmsley life was not entirely happy.  Despite the fact that Trouble wasn’t involved in convincing Helmsley to leave the will she did (at least, one hopes), she nevertheless ended up being the object of much resentment.  After the terms of the will became public, the poor dog was subject to 20 - 30 death threats!

Helmsley’s brothers apparently refused to care for her so Trouble traveled by private jet to Florida (under the pseudonym “Bubbles”) and was cared for by Carl Lekic, the general manager of the Sarasota-based Helmsley Sandcastle Hotel. 

While residing in Florida, Trouble’s annual expenses were approximately $190,000.  This included $100,000 for security; $8,000 for grooming; $1,200 for food; and between $2,500 and $18,000 for health care – poor Trouble had kidney, er, troubles. 

Although Trouble’s death just came to light last week, apparently she died on December 13.  She was 12 at the time.  Her remains were cremated and are currently being “privately retained”. 

Helmsley’s will specified that Trouble’s remains be buried along with Helmsley, although it is not yet clear whether this will occur.  Pursuant to the terms of Helmsley’s will, the remaining capital of the trust is to be reverted to the Leona M. and Harry B. Helmsley Charitable Trust for charitable purposes.    

Residents Concerned About Proposed Natural Burial Site

Last September I blogged about the increasing popularity of eco-friendly burials.  While encouraging environmentally sound burial practices might sound like a good thing, not everyone wants them going on in their backyard.

Some residents in a neighbourhood in Ajax (about 30 minutes from Toronto) are none too pleased about proposals to rezone a section of a golf course near their homes as a natural burial site. 

The objective of natural burial is to dispose of the body in a chemical-free way and in a manner that does not inhibit decomposition.  Typically, the body is interred in a shroud or biodegradable coffin and without being embalmed.  Rather than traditional headstones, graves are marked by trees and shrubs. 

About 40 residents near the proposed burial site are concerned about the impact it will have on their homes.  The issues raised range from worries that gases emitted during decomposition will enter into the soil and the groundwater source (thus requiring frequent water testing) to concerns that summer barbecues will disrupted by burials taking place on the other side of the garden hedge.

John Overzet, the owner of the golf course responds that the complaints of residents were addressed a year and a half ago and that the cemetery will pose no hazard. Specifically, he points out that local health authorities are aware of the proposed cemetery and have raised no concerns.  Additionally, natural burials are governed by the Cemeteries Act in Ontario, which includes various requirements regarding burial, including the minimum depth of the grave site.

If the plans for the cemetery are approved, Mr. Overzet estimates that it will be another five years before it is operational.  His hope is that within the first 10 – 15 years of operation, 10,000 burials will take place.     

Court Allows Widow to Use Dead Husband's Sperm

Last week, the Supreme Court of New South Wales (in Australia) declared that the sperm of a dead man was the property of his widow.  Mark Edwards died in a workplace accident last year.  In the hours after his death his wife, Jocelyn, obtained an urgent court order that his sperm be harvested and crypto-preserved. 

Last week, Jocelyn was granted a court order allowing her to take possession of the sperm.  Her evidence was that the day after Mark’s death, they had been scheduled to sign consent forms to commence treatments at a fertility clinic near their home. 

In his judgment, the judge pointed out that there were only two outcomes for the sperm: either it was given to Jocelyn or it was destroyed.  An interesting aspect of the decision is that Jocelyn will have to travel elsewhere to receive IVF treatment.  Notwithstanding the fact the court gave Jocelyn a proprietary right to the frozen sperm, in New South Wales IVF treatments require the consent of the donor (and in this case, the husband died the day before he was scheduled to give consent). 

Cases like this are becoming more and more common.  Last October I blogged about a woman in New York who was given permission by the court to harvest her recently deceased husband’s sperm – and similar cases have arisen in the UK.    

In Canada, the posthumous collection of genetic material is governed by the Assisted Human Reproduction Act (“AHRA”) and seems to be much more restricted than in other jurisdictions.  Section 8 of the AHRA limits the use of human reproductive material for the purpose of creating an embryo (including post-death extraction) to circumstances where the donor has given written consent while alive (which is something people rarely think to give).   This means that the emergency legal proceedings to harvest reproductive material post death that are becoming more common elsewhere don't really happen in Canada.

Would You Like to Know How Much Longer You Will Live?

If you had the opportunity to find out how much longer you were predicted to live would you want to know?  You may have the chance shortly. 

According to the New York Times, researchers at the University of California, San Francisco, have developed a geriatric calculator designed to predict the odds of how much longer an individual will live.  To make the predictions, the website will use 18-20 different geriatric prognostic indexes. 

The objective of the website is to provide evaluative information that can be used for health care purposes, such as for nursing home residents. It is hoped that the information gained from the calculations will assist doctors and patients in making health care decisions. 

Life expectancy will often affect medical decisions.  For example, an individual’s age and frailty will have an impact on the type and extent of tests and procedures that will be useful in treating various ailments.     

While the website tries to limit use to health care professionals it appears that entry is based on the honour system – the New York Times did not provide the address to the site on the basis it was still in a testing phase; however, it did report that users were simply asked to confirm they were a health care professional to gain access. 

This leaves open the possibility that casual users, relying on do-it-yourself indexing, will become dismayed that they’re not predicted to have that much longer on the earth (or develop a false sense of security that they have longer than they thought).

It appears that given the opportunity most people would like to know how much longer they’re predicted to live.  The New York Times monitored the responses to its article on geriatric calculators and notes that readers were unanimous in their desire to have access to the information.   

When Death and Social Media Collide

“Here it is.  I’m dead, and this is my last post to my blog.”  These aren’t words that you would normally expect to read on a blog.  However, when Derek Miller, a Vancouver-based blogger, found out that the end of his struggle with terminal cancer was near he wanted to make sure he had one last blog. 

Mr. Miller had maintained his blog, penmachine.com, for more than a decade. He was diagnosed with stage 4 colon cancer in 2007 (when diagnosed, Mr. Miller’s cancer had already metastasized). Throughout his illness, he blogged about the realities of living with cancer (along with a host of other topics).  When he realized that death was looming, he wanted to close his blog with one final post. 

The final entry, titled “The Last Post”, is a meditation by Mr. Miller about his life, death, and love of his wife and two young daughters.  He wrote the blog prior to his death and requested that upon his death it be posted by a friend. 

Mr. Miller died on May 4, 2011 at the age of 41 and the entry was posted shortly after his death.  Since it went live, the post has received more than eight million hits and garnered worldwide attention.

While the story of Mr. Miller’s blog is unique, the idea of creating a digital legacy has become increasingly popular over the past few years.  In today’s world, it is very common for individuals to create a social media trail – of photos, blog entries, tweets, and social networking profiles.  However, something that is often forgotten is that when the creator of the online footprint dies, the data remains uploaded. 

With this in mind, there are a growing number of sites (such as Legacy Locker, Deathswitch, and AssetLock) designed to help people plan what will happen to their online information once they die.  And some, like Mr. Miller plan by telling family and friends what they want to happen.    

It's a Woman's Prerogative to Enjoy Retirement

For the women out there hoping to retire, I’ve got good news and bad news.  First the bad news – women are, on average, less prepared for retirement than are men. 

During their working years, women tend to make less than men, which translates into lower savings for retirement.  In addition, the fact that women have a longer average lifespan than men means that retirement is more costly for women and they need to save more. 

Now for the good news I promised – according to a recent study by Harris Decima (commissioned by Bank of Montreal) once women make it to retirement, they seem to enjoy it far more than men.  

Women do encounter struggles in retirement that are not equally felt by men – in addition to the problems I’ve already mentioned, given divorce or widow-hood, women are more frequently left on their own in retirement. Still, once retired, women are more likely than men to describe their retirement as being “very successful”. Additionally, studies have shown that women tend to become happier as they become older. 

Another benefit that women enjoy once they’ve reached retirement is that, compared to men, women evidence an increased willingness to seek professional advice about their financial situation. While men tend to take a “go it alone” approach when it comes to post-retirement financial planning, women are more likely to seek the advice of a financial planner.

$800 Million? Now That's A Legacy!

May is national Leave a Legacy month in Canada.  Leave a Legacy is a national public awareness organization aimed at encouraging people to leave gifts to charity or other non-profits in their will (or through some other gift planning mechanism). 

Throughout May, Leave a Legacy has a number of events scheduled across the country.  The list of events in Toronto can be found here

One family in the United States that is certainly committed to leaving a legacy is the Waltons (of Wal-Mart fame).  The Wall Street Journal reports that the Walton Family Foundation has pledged to donate $800 million to the Crystal Bridges Museum of American Art, a museum founded by Alice Walton (daughter of Wal-Mart founder Sam Walton). 

The 201,000 square foot museum is encyclopedic in nature and aims to chronicle the history of American art from the late 1600s to the present. The museum is located in Wal-Mart’s rural Arkansas hometown of Bentonville (population 35,301) and set to open on November 11, 2011. 

The gift by the Walton Family Foundation is being heralded as the largest cash donation ever made to an American museum – exceeding the $660 million in oil stocks donated to the Getty Museum in Los Angeles by Paul Getty in the late 1970s and the $500 million cash donation made by Caroline Weiss Law to the Museum of Fine Arts in Houston.

The Los Angeles Times has pointed out that while the Waltons’ donation might be the biggest cash gift ever, the actual value of Getty’s donation was larger – when adjusted for inflation, his donation in 1976 is worth almost $2.5 billion in today’s terms. 

These Women Really, Really Wanted to Be Mothers!

Charles Vance Millar was a successful businessman in Toronto in the early 1900s.  He died in 1926 leaving a will which included some very unusual provisions. 

For example, Millar left shares he owned in the Ontario Jockey Club to a group of vocal opponents to gambling.  He left his vacation home to three men who hated each other. 

However, what really turned heads was the residue clause in Millar’s will – in it, he left the residue of his estate to the mother in Toronto who gave birth to the most children in the ten years following Millar’s death.  If there were a tie, then the winners would divide the inheritance. 

Millar died in the midst of the Great Depression – and there were many families who could use the money (the estate was worth about $650,000 at a time when the average weekly salary was $12.50).  After Millar’s death, there were debates about whether the clause in his will was enforceable – Did it violate public policy?  How should “birth” be defined – did stillbirths count? 

Millar’s death kicked of the decade long Toronto Stork Derby.  By the end date, there appeared to be four winners – each of whom had given birth to nine children over the previous ten years.  They each received $125,000. 

Two other women came forward claiming that they were the real winners, having each had ten babies over the past decade.  However, the trustees ruled that neither qualified – one woman’s children were illegitimate and Millar’s will specified that the children must be born within a marriage.  Two of the other woman’s children had been stillborn and the trustees decided that only live births qualified.  Nevertheless, the trustees decided to give each woman $12,500 for their efforts. 

Happy Mother’s Day to all the moms out there!

Expecting an Inheritance? Not So Fast...

The idle rich kids out there who are just killing time until they receive an inheritance may be in for a surprise.  A recent study by US Trust (which is part of Bank of America) found that, amongst the wealthy, leaving money to the next generation isn’t all that big a priority. 

The study measured the attitudes towards wealth of 457 Americans with at least $3 million in liquid assets.  The vast majority of respondents (84%) attributed their wealth to their own hard work. 

However, just because they had achieved significant wealth didn’t mean they were anxious to share it with their children. When asked about their financial goals for using wealth, less than half listed leaving an inheritance as a priority (in contrast, almost two-thirds identified “travel” as a goal).   

For those planning on including their children in their will, only one-third believed that their children would be prepared to handle the inheritance they received.  Respondents also didn’t have a lot of faith their children would get along after their death – only 36% believed that their children would be able to work together to manage the family wealth.

Parents were reluctant to share details about their wealth with their children. Only one-third had fully disclosed details of the family wealth to their kids. The reasons for the non-disclosure varied.  A primary concern was how the wealth would affect the children’s behaviour – specifically, that they would become lazy, squander their inheritance, develop addictions, or marry a gold digger. 

When questioned about at what age their children would be mature enough to manage family money, the responses varied.  However, 45% believed it would be sometime after the child had reached 35. 

Perhaps growing up with too much money but not receiving a big enough inheritance will be an increasing problem in the future…

Gowns, Crowns, and the Electress Sophia

At last, at last..finally it’s here!  Today is the day that Prince William will marry Kate Middleton.  We’ll all finally find out who designed her wedding dress and what royal titles they’ll receive (I’m hoping that the Dukedom of Windsor will be revived). 

Whether there’s nothing you love more than a Royal Wedding, or there’s nothing you’d love more than to stop hearing about the Royal Wedding…today is the day!

In a technical, “birds and the bees” sense, I suppose Prince William has his parents to thank for the fact he’s second in line to the throne.  However, in a more meta-sense, he should be thanking the British Parliament and Sophia of Hanover

In the late 1600s, there was significant concern that a Roman Catholic may end up as monarch in England.  As a result, the Act of Settlement was passed by Parliament in 1701 and designed to secure Protestant succession to the British throne.  It stipulated that the throne would pass to Electress Sophia of Hanover and to those of her descendants who were Protestant and had not married a Roman Catholic (meaning that anyone who was Roman Catholic or married someone who was Roman Catholic was turfed from the order of succession).

As far as the pecking order goes, Prince William is second in line to the throne after his father, Prince Charles. However, there are others out there who do carry the faintest of hopes.  The Wall Street Journal Reports that Karin Vogel, a German therapist who counsels the elderly, holds the distinction of being last in line for the throne – according to the article, she’s was 4,973 in line as of 2001 (although, that list also included Roman Catholics, who’d be excluded from succession). 

Cheers to Kate and William.  As anyone who knows me will attest, the words “morning person” do not apply…so when the early birds finally witness William and Kate’s marriage vows, I will be peacefully asleep.      

A Cotton Legacy...and There Goes Mr. McGregor's Garden

If any of you are woken up by a hippity-hop over the weekend – don’t worry. It’s probably just the Easter bunny coming to deliver chocolate.  The Easter bunny is frequently associated with Peter Rabbit, the literary creation of Beatrix Potter.

Potter was born in 1866 and benefited from the generosity of an estate early in her life – her parents had received inherited wealth from a cotton fortune. As a result, Potter lived and was educated in luxury at home in London, England. 

As a child Potter developed a love of nature that she carried through out her life...and she also developed a love of literature.  She wrote the Tale of Peter Rabbit in 1893 (it was initially written for the son of Potter’s former governess). After being rejected on a number of occasions the story was printed commercially by Frederick Warne & Co. in 1902 – and hasn’t gone out of print since.

The Tale of Peter Rabbit involved the story of a naughty little bunny who was at his best tearing up the garden of a certain Mr. McGregor.  He was joined from time to time by his fluffy sisters - Flopsy, Mopsy, and Cottontail (naturally, the girls were better behaved). 

Potter died in 1943 and left a legacy of much beloved children’s literature (not to mention charming Wedgwood china which is a “go to” when it comes to Christening gifts, but I digress..)

Incidentally, rabbits weren’t Potter’s only beloved animals - I have to say I’ve always loved Potter’s Jemima Puddle-Duck more than Peter Rabbit. However, I’ll leave well enough alone – who needs controversy over a long weekend!? 

Too Busy to Say Good-Bye? Try a Drive-Thru Funeral

Several months ago, I blogged about the growing popularity of funeral webcasting services. However, those who want a more personal touch, but are short on time, might appreciate the convenience of drive-thru funeral homes. 

This past weekend, the Los Angeles Times reported on the Adams Funeral Home, in Compton, California which includes amongst its services, drive-thru visitations. This involves placing the deceased's casket in a glass display window visible to drivers passing through a drive-thru lane. 

Adams Funeral Home is owned by Peggy Scott Adams, a Grammy-nominated gospel singer. It was Peggy’s late husband, Robert Adams (a local politician) who initially came up with the idea for drive-thru viewings.  According to the video that accompanies the article, Robert came up with the idea after seeing funeral homes in the south that offered video displays of the funeral outside the building – he thought he could improve on the concept. 

The funeral home’s business has been brisk – it was especially good in the late 80s when gang violence in Los Angeles was high.  Cemetery shoot outs had made gang members reluctant to attend gang funerals, so the bullet proof glass used for the partition at the funeral home made it a popular venue. 

These days, the benefits of drive-thru funerals are slightly more vanilla in nature – seniors can stay in the car and those in wheel chairs have easier access to the viewing.  In addition, it is less complicated for family members of the deceased and, in the case of community leaders, more people can attending the viewing. 

Funerals start at $1,295 and despite the success of the company’s drive-thru business, traditional visitations are still the most popular. 

Fur Flies Over a Stuffed Polar Bear

There are endless stories about how attached people get to their pets – and the devastation that they can feel when a pet dies.  Apparently, they get super attached to zoo animals as well. 

There is controversy afoot at the Berlin Zoo over plans to stuff the body of a beloved polar bear that recently died.  Knut (pronounced “Knewt”) was born at the Berlin Zoo in December 2006.  His mother rejected him at birth.  Subsequently, a national debate erupted over whether the zookeepers should take over his care or whether the extensive interaction he’d had with humans at such a young age would so distort his development that he should be put to sleep. 

Knut was allowed to live and became a big attraction at the zoo for awhile.  Unfortunately, by the time he was a year and a half, he’d grown from a cute little cub into a 350-pound bear – and the attention died down (although he did still have some devoted followers).  This was hard for poor Knut who had become accustomed to all the human interaction – when he was left alone with no visitors or keepers he would cry out.  At the time, a German zoologist referred to Knut as a “psychopath addicted to human attention.”

Knut’s life came to an abrupt end in March 2011.  While standing on a rock, Knut started to spin in circles, suffered a seizure, and then plunged into the water where he died. 

After Knut’s death, Bernhard Blaszkiewitz, the zoo’s director, decided to stuff Knut’s body and have it displayed in a museum.  However, for a vocal group of protestors, this isn’t acceptable – they don’t want to see him stuffed, believing it to be undignified and no way to treat an animal that, to some of them, was like a friend or family member.  Others are not so sympathetic, believing that in the end, a polar bear is just a polar bear, and that those opposed to Knut being stuffed should “get a life”.

Unfortunately for those opposed to Knut being put on display, they may have to deal with it.  Apparently the stuffing process (technically called “dermoplastik”) is well under way. 

Welcome Home - the Extended Family Makes a Comeback

For those who believe in the adage “you can’t go home again”, you might not need to worry – home might come to you.  The Wall Street Journal reports that the multi-generational family household is making a comeback. 

The WSJ cites a study by the Pew Research Center in Washington, DC that found that a record number of Americans (49 million to be exact) are living in a home with at least two adult generations or a grandparent and another generation.  This amounts to about 16.1% of the population and represents an increase of 17% since 2000. 

The rise in multi-generational homes represents a distinct trend reversal. After World War II and through to the 1980s, the popularity of the extended family household declined – from about 25% in 1940 to 12% in 1980.  However, since 1980 the rates have crept back up. 

One reason for the most recent upswing has been the economic downturn.  An increase in retirees experiencing shortfalls in their savings has made moving in with relatives a financial necessity.  Another reason is demographics – the population is aging and the need for elder care is becoming more common.  For dual income families, having grandparents in the house can carry obvious benefits when it comes to child care or paying a mortgage.

However, setting up an extended household has its complications – especially as far as finances are concerned.  This is particularly the case when the family members decide to purchase or renovate a property together.  Careful consideration should be given to how the purchase/renovations will be funded, how title to the property will be held, and how this might affect the estate plans of those involved.

Baby Jessica Turns 25, Inherits Trust Fund

Jessica McClure, who in 1987 made news worldwide when she got trapped in a well, turned twenty-five over the weekend and gained access to a sizeable trust fund.  In 1987, McClure was an eighteen month old on a visit to see her aunt when she wandered away from her family, fell through an eight inch opening in an abandoned water well, and plunged more than twenty-two feet before getting stuck.  

McClure stayed trapped in the well for more than fifty-eight hours and captured worldwide attention before finally being rescued by emergency workers.  Miraculously, she hasn’t suffered any serious long lasting effects after the ordeal she went through.  After being rescued she had to go through fifteen different surgeries.  McClure also ended up losing a toe to gangrene not long after being rescued and still has a slightly visible scar on her face – but other than that there was no lasting damage and she doesn’t recall the events. 

After McClure’s rescue, well wishers from across the globe sent her toys, gifts, and cash.  Since that time, the funds have been held in trust and became payable when McClure turned twenty-five.  Apparently, the current value of the trust is approximately $800,000.   

Today, McClure lives in Midland, Texas and is happily married with two children.  A 1997 poll by the Pew Research Centre for People and the Press found that the amount of coverage given to Princess Diana’s death that year was, over the previous decade, rivaled only by the press attention given to Baby Jessica.

Now You Can Plan Funerals Online

For the past few months, I’ve been seeing advertisements for the company Basic Funerals in various subway stations in Toronto, so a recent article in the Globe & Mail about the company caught my eye. 

Basic Funerals bills itself as the first funeral company to give people the option of arranging funerals in person, over the phone, or online.  The web-based service gives family members the ability to arrange their loved one’s funeral from the comfort of home.

The services include visitation, grave-side services, cremation, burial, and basic estate services (such as transferring air miles or applying for a CPP death benefit).  Costs vary; however, in Toronto, a complete basic cremation package starts at $1,674, a burial and graveside service starts at $1,800, and a basic funeral with casket starts at $3,500.     

The company’s web-based model represents a fundamental shift from the traditional model employed by funeral providers.  Typically, a funeral business involves high overhead – it will operate out of a fixed premises, keep merchandise and equipment onsite, and will employ staff.  Basic Funerals’ goal is to be as automated as possible and to offer funeral services at about half the price of traditional funeral providers.

While the company heavily promotes its web-based service, clients are also able to arrange funerals over the phone or in person.  Basic Funerals is a licensed funeral establishment and contracts with the clients to provide services/merchandise directly. 

Since the company’s inception in 2009, it has arranged over 1500 funerals in Ontario and has recently expanded its services to Colorado and Illinois.   

Unemployed? Maybe You'll Live Longer...

On Monday, I blogged about the barriers older laid off workers faced when seeking new employment and how those barriers can result in involuntary early retirement.  While being out of work obviously has its downside, apparently there is also an upside -  a recent study indicates that an increase in unemployment rates is associated with a decrease in mortality. 

According to the Globe and Mail, the findings of a study done by two professors at Wilfred Laurier University suggest a strong relationship between unemployment rates and mortality rates in Canadians.  The researchers analyzed mortality rates and unemployment rates from 1977 to 2009 and found that a decreased mortality rate was associated with joblessness and this effect is most pronounced among the middle-aged. 

This trend is seen not only in Canada.  In the United States there is a significant amount of research which indicates that an increase in the jobless rate is associated with a drop in the mortality rate at the state level (although, American studies have found that the drop was most pronounced amongst infants and seniors while the Canadian study found the drop the greatest amongst the middle aged).  A German study included similar findings. 

In considering the reason for the relationship between unemployment and mortality, the Canadian study noted that, during a recession, people become less likely to engage in risky habits and more likely to adopt health-improving habits.  Other studies have contained similar findings. For example, smoking, drinking, and alcoholic consumption decline during economic downturns, while physical health and average sleep time improves.  

Older Workers Often Forced into Early Retirement

Finding a job after being laid off isn’t fun for anyone – but for older Canadians the task can be especially trying.  For a growing number of older workers, a layoff is resulting in forced retirement, rather than re-employment. 

According to a recent study released by the Institute for Research on Public Policy, older workers (defined as those between 45 and 64) face considerable barriers to re-employment after being laid off.  Major reasons for this include long job tenure in previous positions and the fact that sector-specific skills might not be transferable to new jobs.  When faced with the possibility of a job at a lower salary than the previous one, an increasing number of older workers are opting for early retirement.

The study followed the labour market choices of long-tenured older workers for a five-year period following a layoff and found that of those between the ages of 45 and 59, 25% had retired within five years.  For workers between the ages of 60 and 64, the proportion rose to 70%. 

Of the older workers who were successful in securing new employment, it rarely matched the income earned at the previous job – on average they lost about 40% of their previous income.  This was a significantly greater drop than experienced by workers under 45 (and the income of the older workers did not grow measurably over subsequent years). 

These statistics are troubling because of the negative implications of early forced retirement – Old Age Security doesn’t become available until age 65 (and neither does the Guaranteed Income Supplement, in low income scenarios).  Additionally, unreduced CPP payments start at 65 (and much higher benefits can be available by waiting until 70).

With An Executor Like This Who Needs Enemies?

Over this past weekend, the Globe and Mail published the much read article “The Dark Side of Canada’s Inheritance System”.  The article detailed the unfortunate administration of Paul Penna’s estate.  Penna died leaving a $24 million estate, mainly to charity.    

The Penna Estate has resulted in long standing and most unfortunate litigation in Toronto.  In brief, Mr. Penna died in 1996.  In his will, he appointed three trustees, one of whom was his friend, Barry Landen [“Landen”].

In the context of a blog, there’s no way to be concise about the large scale litigation involving Mr. Penna’s estate. However, Landen has been accused of looting Mr. Penna’s estate to the tune of millions of dollars; ignoring the terms of Mr. Penna’s will (which included valuable bequests to charities); being completely unable to account for missing assets from Mr. Penna’s estate; and donating funds to a charity not named in Mr. Penna’s will (while the charities named in Mr. Penna’s will have gone without). 

While Landen has not yet been fully called to account for the missing millions, the Honourable Madam Justice Greer had no patience whatsoever when Landen failed to adhere to numerous (and long standing) court orders, including those requiring Landen to disclose estates assets and what had become of them. 

Greer J. eventually found Landen in contempt of a number of court orders and sentenced him to 14 months in jail.  In her decision, Greer J. noted that Landen “perpetuated a massive fraud in his administration of [Penna’s Estate]”, found that Landen “deliberately, knowingly, and improperly” removed funds from an account frozen by the court, and remarked that “Landen’s sociopathy is such that all his actions appeared to be a deliberate course of greed”. 


Ironically, over the past week, the New York Times published an article, “Choosing the Right Executor for Your Estate”.

New York Court Finds Canadian Gay Marriage Valid in Probate Case

An appeals court in New York has ruled that the surviving spouse in a same sex marriage that took place in Canada could inherit the estate of his deceased husband.

In Re Estate of H. Kenneth Ranftle, the deceased and his partner were American residents who married in Canada in June 2008.  In August 2008, the deceased made a will in which he made bequests to his goddaughter and three brothers, and left the residue of his estate to his spouse, who was also named as executor.  Unfortunately, the deceased died three months later, in November 2008. 

The surviving spouse applied for probate in December 2008 and it was granted in January 2009.  When granting probate, the court declared that as the surviving spouse would be the only one entitled to the residue of the estate (whether there was a will or not), notice of the probate proceeding did not have to be granted to anyone. 

Apparently one of the deceased’s brothers had been considering challenging the will.  He objected to the court’s order that notice of the probate proceeding did not have be given to anyone on the basis that the Canadian marriage was not valid in New York because it would violate public policy.  He argued that, as a result, he had a financial interest in the estate as an intestate heir and was entitled to notice of the probate application so he could file an objection. 

The court rejected the brother’s argument.  In New York, there is a “marriage recognition rule” that provides that marriages that were valid in the place where they were celebrated should be recognized as valid in New York unless (1) the marriage is contrary to the prohibitions of natural law; or (2) it violated statute. 

Here, the court found that same sex marriage did not violate natural law and that although same sex marriage wasn’t legal in New York, in the absence of an express statutory prohibition the marriage recognition rule applied. 

Canada Joins the Alzheimer's Café Scene

Antigonish, Nova Scotia has hosted the opening of the first Alzheimer’s Café in Canada.

The purpose of an “Alzheimer’s Café” is to unite those suffering from Alzheimer’s disease, their caregivers, and the general public in an informal setting that resembles a café (complete with food, drink, and entertainment) rather than an institutional setting.  The objective is to move away from a traditional “support group” model and towards interactions that are more social in nature. 

The reason behind Alzheimer’s cafés is a good one.  A big issue that arises with those suffering from dementia is that they become housebound and secluded from the social world.  This can occur for a variety of reasons – they might have difficulty with mobility, they may be embarrassed about their condition, or they might be fearful of leaving the house. 

Over time, the isolation can start to spiral (as an individual becomes more isolated he becomes less and less likely to voluntarily leave his home) – and it can accelerate mental decline.

Openly discussing dementia can be difficult because of the social stigma that surrounds the disease.  An objective of Alzheimer cafés is to allow people to openly discuss their experiences with dementia (whether as someone who suffers from the disease or as someone who instead is a relative or caregiver of someone who is a sufferer).    

The idea for Alzheimer cafés originated from Dr. Bere Miesen, a Dutch psychiatrist, in 1997; they have since become ubiquitous in the Netherlands.  The concept has also become popular elsewhere in Europe – the first café of this type opened in the United Kingdom more than ten years ago and it has apparently also gained ground in the United States.    

The idea has been spearheaded in Canada by Danielle Martensson, a nursing student at St. Francis Xavier University.  The group has had two events in Antigonish since January and plans its official opening next month.   

Is Tweeting Condolences Appropriate or Just Tacky?

It is often said that there’s no “right” way to grieve the loss of a loved one – however, are some ways tackier than others?  That was a question raised recently in a Globe and Mail article about the increasing trend of announcing deaths and sending condolences using twitter and facebook.

The impetus for the article was the miscarriage recently suffered by Amanda Holden, a television presenter in the United Kingdom.  After the tragic news became public, it appears that a number of celebrities in the UK took to twitter to send their condolences. 

For those not familiar with twitter, it’s a social networking site where members can send out messages (with a maximum 140 characters) for all the world to see.  Former Spice Girl, Emma Bunton, tweeted “Absolutely devastated for @Amanda_Holden and chris.  Thinking of them and sending our prayers at this very sad time”.  Several other British celebrities followed suit.    

While expressing sympathy and sending best wishes is certainly a kind thing to do, is using twitter simply a sign of the times or would a phone call or letter have been more appropriate?  Jan Moir, a columnist for the UK’s Daily Mail, certainly thinks saying "sorry for your loss" over twitter amounts to a faux pas.  She asks whether there is “something distasteful about this new eruption of celebrity-to-celebrity condolences, played out in the Twittersphere hall of mirrors to an audience of millions”.   

Whether it’s appropriate or inappropriate, one person who didn’t seem to mind was Amanda Holden herself.  A few weeks after her miscarriage, she sent a message to all her followers on twitter thanking them for their “support and love.”

Wiarton Willie Dies, Scandal Ensues...

Sometime this morning, Wiarton Willie (and his good American groundhog friend, Punxsutawney Phil) will emerge from his burrow.  If he sees his shadow and retreats then it will be six more weeks of winter. 

Groundhog Day has been observed since at least the end of the 19th century – they’ve gathered in Punxsutawney, Pennsylvania to celebrate it since at least 1886.  The story of Wiarton Willie dates back to 1956 when Mac Mackenzie, a resident of Wiarton, Ontario (a town on Georgian Bay about 3 hours northwest of Toronto) wanted to beat the winter blues and sent out a press release inviting people to Wiarton for a Groundhog Day party.  When a reporter arrived and asked where the groundhog was, Mac threw a fur hat into the snow and the reporter took a picture.  The tradition continued from there.

Willie the groundhog became involved sometime in the 1980s – and brought fame to Wiarton, making its winter festival the largest in Bruce County and the town internationally known for its weather-prognosticating rodent.  A statue was erected in Willie’s honour in 1995.

Sadly, Willie passed away while hibernating during the winter of 1998 – 1999.  This was discovered by the organizers of the Winter Festival only a couple of days before the big event.  On Groundhog Day, a lifeless Willie was presented to the crowd while lying in a little casket with pennies over his eyes and clutching a carrot.   

Alas, like has happened with so many other celebrities, Willie’s death was mired in scandal.  It seems that the lifeless groundhog presented to the crowd was not actually Willie.  Apparently, by the time his little body was found it was so badly decomposed that it could not be shown to the public.  Instead, organizers put a stuffed version in the casket – a move which caused endless speculation over his real cause of death.   

After his death, the original Wiarton Willie was replaced by “Wee Willie”, who fulfilled the role until his own death in 2006.  Wee Willie 2 now holds the job.

For those who feel like heading up to the Bruce Peninsula, the 55th annual Wiarton Willie Festival runs until February 6, 2011.  

Poe's Mysterious Toaster Continues to be a No Show

A mysterious visitor's annual ritual of leaving cognac and roses at Edgar Allan Poe’s graveside appears to have come to an end after more than sixty years. 

Poe was born in Boston on January 19, 1809.  His early life was difficult – his father abandoned the family when Poe was young and his mother died a year later from consumption. 

Poe moved to New York in the early 1830s, which is when his publishing career took off.  He would become known for his macabre tales and poems.  While Poe enjoyed prominence, he had difficulty supporting himself as a writer and would frequently have to borrow money.  Over time, his behaviour started to become erratic and he developed a drinking problem (apparently fuelled by the sudden death of his wife).  Poe died in 1849, at the age of 40 under mysterious circumstances – his cause of death is still unknown and theories have included suicide, murder, alcoholism, and hypoglycemia.

Poe's funeral was a simple one and reportedly was attended by few.  He was interred at the Westminster Hall and Burying Ground, initially without a gravestone - although one was put in place in 1875.

The mysterious visits to Poe's grave apparently started in the 1940s (and were first referenced in print in the Evening Sun, a Baltimore paper, in 1949.)  The “Poe toaster”, as the visitor was called, was always dressed in black, and wore a white scarf and a wide-brimmed hat. The visits continued every year on the anniversary of Poe’s birth, with the visitor leaving a half-empty bottle of cognac and three roses on Poe’s gravestone.  

In 1993, the visitor started leaving notes and one left in 1998 indicated that original Poe toaster had died and the tradition had been passed to his two sons.  Apparently, the sons didn’t take the duty seriously and in 2009 the visits stopped. Why is unclear, although the fact that 2009 was the 200th anniversary of Poe’s birth might have had something to do with it.

It remains to be seen whether the Poe toaster will reappear.  In the meantime, various “faux Toasters” have taken up the mantle and have been trying to reenact the ritual themselves.  

Doctor's Photo Essays Highlight Plight of Vulnerable Seniors

Last weekend, I had the opportunity to see “House Calls with my Camera”, a series of photo essays currently displayed at the Royal Ontario Museum showcasing the challenges faced by home-ridden seniors citizens.   

The exhibit is the work of Dr. Mark Nowaczynski, a Toronto-based doctor and the clinical director of House Calls, an interdisciplinary team (which includes a doctor, a social worker, a nurse practitioner, and an occupational therapist) that provides home-based care for vulnerable seniors. 

Dr. Nowaczynski started practicing in 1992 and immediately saw the importance of making house calls to patients who would otherwise not receive medical care.  In 1998, he began documenting through photography the struggles his patients encountered as a result of having been overlooked by the medical profession.  In 2007 he started House Calls to improve the quality of care that can be obtained at home and it received full government funding in 2009. 

The exhibit focuses on four at-risk seniors and showcases their personal stories, quality of life, and the struggles they have faced without the appropriate medical and supportive services.  They also show the work the House Calls team does and the changes the professionals involved have been able to make in the lives of the patients – although it’s clear that even with support struggles still remain. 

For those who are interested in seeing the exhibit, this is the last weekend to do so – it closes on January 16, 2011.

Bank Accused of Foreclosing on Home, Tossing out Ashes

Over the past couple of years, there have been tons of stories about home foreclosures and the devastation they can cause.  However, this one really takes the cake.

According to the New York Times, a Nevada woman has filed a federal lawsuit against Bank of America accusing it of having wrongfully foreclosed on her house and throwing out her belongings – including the ashes of her late husband. 

The article reports that Mimi Ash and her husband purchased a ski chalet near Lake Tahoe in 2003.  Sadly, two years later her husband was stabbed to death in a road-rage incident (and subsequently cremated).  After her husband’s death, Ms. Ash apparently intended to assume the mortgage on the house (which had to go through probate court).  The bank required her to catch up on outstanding mortgage payments and taxes, which Ms. Ash says she did. 

When she heard nothing further from the bank (and had not received ownership of the house) she stopped making payments.  She proceeded to seek a loan modification when the real estate market was collapsing but claims the bank lost documents and rarely responded to her phone calls and emails.  In 2007, the bank issued a default notice, which Ms. Ash’s lawsuit says was sent to the wrong address; however, she also says the bank then promised it would not foreclose while she was seeking the loan modification. 

Nevertheless, in 2008 the bank foreclosed on the property – without, Ms. Ash says, notifying her first. She also says the bank told her the sale would be rescinded; however, a few months later work crews broke in and cleaned out the home. Amongst the items thrown out were the ashes of her late husband that had been kept in a wooden box, the top of which was inscribed with the words “Together Forever.”

A Bank of America spokeswoman says that they are taking the allegations made seriously and hope to “move toward an appropriate resolution of the case.”

Most Canadians Plan to Work After Retirement

Question: if you continue working during retirement then have you actually retired? Whatever the answer, most Canadians plan to do so.  According to a recent study conducted by Harris/Decima on behalf of Scotiabank, nearly 70% of Canadians intend to work after retirement.

On Tuesday, I was interviewed by Havard Gould, for a segment on the Scotiabank study which appeared on CBC’s the National.  The piece also featured Don MacFarlane who, after having enjoyed a successful career in pharmaceuticals, retired and now spends his time working at Rona.  It’s not that he needs the money, he just enjoys keeping active. 

And he’s not alone – of those surveyed who plan to keep working, 72% cited the desire to remain mentally active and 57% cited a desire to stay socially connected as reasons for staying in the work force.  Still, while working because you want to sounds nice, there are also obvious financial benefits: 38% of those surveyed cited financial necessity as the reason they’d continue working. 

Saving for retirement is an obvious concern.  75% surveyed reported having been saving for about 15 years and, of those people, more than half had saved less than $20,000 in the past five years.

So, how much do you need saved before retiring? Well, there’s no magic number – it will depend in large part on an individual’s specific circumstances and the lifestyle they wish to lead.  However, Jonathan Chevreau, whose column, the Wealthy Boomer, appears in the Financial Post, recently looked a four different scenarios and estimated what a married couple would need to save in each in order to retire.  The message? No matter your lifestyle, it’s time to get saving – Chevreau figures that even a couple who plans to live a frugal, bare bones existence should have about $300,000 put away.    

My Blog Has Won a 2010 CLawBie Award!

I'm pleased to announce that this blog was awarded a 2010 Canadian Law Blog Award. It's nice to be recognized!

The CLawBies, as they're called, were established in 2006 and are annual awards presented with the objective of highlighting the accomplishments of bloggers in the Canadian legal community.  They are presented by the Canadian Law Blogs list, which bills itself as "an open directory of Canadian blogging lawyers, law librarians, marketers, IT professionals, and paralegals."

My blog came first in the "Best New Law Blog Awards" category.  It was (very generously!) described as being

by sole practitioner Megan F. Connolly. No stranger to social media (she previously worked at podcasting pioneer Hull & Hull), Megan launched her blog in August 2010 and immediately displayed a knack for making her subject accessible (many of her posts answer common estate questions), interesting (with posts on “green” burials and Lee Harvey Oswald’s coffin), and timely (recent posts on dementia are of great interest to those with aging parents). Extra credit for managing all this great content as a solo.

A special congratulations goes out to the Entertainment & Media Law Signal, published by the law firm Heenan Blaikie, and Adam's Law Blog, published by Toronto-based criminal lawyer Adam Goodman, which also placed in the Best New Law Blog Awards category.

A full list of the winners of the 2010 CLawBies can be found here.

As a side note, the Canadian Law Blogs List really is a fantastic compilation of Canadian law blogs - so for those of you interested in all the great information out there, make sure to check it out.  And for those legal bloggers out there who are not on the list make sure to contact them - they're always happy to add new content.

Congratulations to all the winners!

For a Great Deal, Try an Estate Sale

While Boxing Week sales are a popular way to get things cheap, there's another type of sales which have become popular – estate sales.  The New York Times reports that because of the increasing number of baby boomers who are downsizing (or selling off the belongings of their deceased parents) there has been a dramatic rise in the number of estate sales occurring.

It’s not just the supply, either – the demand is also increasing and is fueled in large part by the still-weak economy.  While the hope of finding unique and inexpensive items for their homes lures some shoppers, there are also those inspired by the desire to flip items for a profit on online auction sites. 

The increase in popularity of estate sales has also led to a subtrade of professional organizers like Sisters in Charge Tag Sale Professionals and JBD Estate Sales.  Online sites like EstateSales.net, Estatesales.org, and WeekendTreasure.com, which list the sales, are also becoming more common.   

For those interested in hitting the estate sale circuit, there are rules of protocol to keep in mind:

  • The first person to arrive distributes “pre-numbers” to others as they arrive – these are then exchanged for real numbers when the organizer arrives, which dictate the order of admission;
  • If you see something you like, don’t dither.  Pick up anything that seems even remotely interesting and then make a final decision later;
  • If the piece is too big to carry, just remove the price tag and take it to the register;
  • Don’t apply “sold” stickers to items before you’ve actually purchased them.  This is considered tacky!

So just keep those rules in mind and get ready to shop ‘til you drop!

Changing Lives, $5 at a Time

These days, it seems like billionaires everywhere are promising to give their wealth away.  However, it’s important to remember that life changing donations can come in any amount. 

In December 1933, an individual using the pseudonym “B. Virdot” placed an advertisement in The Repository, a newspaper in Canton, Ohio.  In it, he offered modest cash gifts to families in need.  He asked that those who were interested write describing their financial troubles and how they would spend the money and he promised to keep their identities secret. 

The offer came at a particularly opportune time for some – it was in the midst of the Great Depression and Canton, an industrial town which then had about 105,000 residents, was struggling.  Approximately 150 people received cheques, most for about $5. 

The donor’s identity remained secret past his death until 2008 when his grandson, Ted Gup, was sorting through his papers and came across one addressed to “B. Virdot”.  As it turned out, “B. Virdot” was actually Samuel J. Stone, who had escaped persecution as a Jew and an impoverished life in Romania, immigrating to the United States and eventually building a successful chain of clothing stores. 

Mr. Gup has since used the letters and interviews with the descendants of some of the letter writers as the basis for the recently published book, “A Secret Gift.”  The book is an account of Mr. Stone’s life as well as the letters that were sent to him and the backgrounds and outcomes of the senders. 

I hope everyone enjoyed a wonderful Christmas! 

Celebrating the Christmas Eve Birth of Winnie the Pooh

Eighty-five years ago today, on December 24, 1925, a short story written by A.A. Milne (then an assistant editor at the humour magazine Punch) appeared in the London Evening News.  It was titled “The Wrong Sort of Bees” and told the tale of a boy named Christopher Robin and his bear, “Winnie-the-Pooh”.

The boy was based on Milne’s young son (also named “Christopher Robin”) and the bear of very little brain was based on Christopher’s teddy who, having been initially named “Edward Bear”, was later renamed “Winnie-the-Pooh” – a name derived from combining the names of a real bear and a fictional swan.  “Winnie” was the name of a bear in the London Zoo who had been the mascot for the Winnipeg regiment of the Canadian army while “Pooh” was the name of the pet swan in Milne’s book, “When We Were Very Young.”

In 1926, the book Winnie-the-Pooh was published, which featured Christopher Robin, Pooh, and his other animal friends (who were also based on Christopher’s stuffed animals).  Two more books would follow by Milne about Pooh and the gang before the rights to the characters were licensed in the United States.  Currently, Christopher’s stuffed versions of Pooh, Piglet, Kanga, Eeyore, and Tigger reside in the New York Public Library

Milne died in 1956 and was survived by his wife and Christopher.  In his will, he left his assets in trust to his widow for her lifetime and, upon her death, in trust for his descendants and a few charitable institutions. Unfortunately, it has not all been smooth sailing – for a good part of the past decade Christopher’s daughter, Clare, was involved in unsuccessful litigation with the American licensor of the works over entitlement to royalties.  

For those in New York City over the holidays, Christopher’s stuffed animals can be viewed at the Children’s Center in the Schwartzman Building at 5th Avenue and 42nd Street.

Have a very Merry Christmas!

Estate Tax Debate Continues in the United States

Back in September, I blogged about the uncertainty over the estate tax in the United States. The estate tax had lapsed this year and was set to return on January 1, 2011 with an exemption of $1 million per person and a maximum rate of 55%. 

Instead, as part of the tax plan approved by the US Senate on Wednesday (and which is awaiting approval by the House of Representatives) the exemption might be set at $5 million per person and at a maximum rate of 35%.  The Democrats have supported a $3.5 million exemption and a 45% maximum rate. 

For the last couple of days, the New York Times has featured an interesting debate about whether estate taxes really matter – are they really necessary or can the same policy goals be achieved with other forms of taxation? 

Robertson Williams, an economist and senior fellow at the Tax Policy Center, argues that the taxes have an important role to play: the country requires increased revenue and estate taxes affect the wealthy (who have benefitted the most from the economy and who have the greatest ability to pay).

Russell Roberts, an economist at George Mason University, argues that the estate tax is wrong because it amounts to double taxation – people are taxed once when the money is earned and again when it is given away on death. The main result, he says, is that people simply use various estate planning techniques to avoid it. 

Ian Shapiro, a political scientist at Yale University, argues that the Democrats’ focus is wrong – rather than worrying about the exemption rate, they should focus on the tax rate, because that’s where the revenue is generated.

Finally, Kevin Hassett, a senior fellow with the American Enterprise Institute, points to studies suggesting that most Americans (including those who would never be affected by the estate tax) don’t support it. He argues that despite the revenue generated by the tax, Americans value liberty more and this compels them to oppose the tax.   

If the bill passes, the tax is going to be effective for two years – which makes me think it won’t be long before we’re hearing this debate again.

Lee Harvey Oswald's Coffin Hits the Auction Block

Christmas has come early for the conspiracy theory junkies out there: the coffin of Lee Harvey Oswald, who assassinated John F. Kennedy, is coming up on the auction block (body not included).   

Oswald had been arrested a couple of hours after Kennedy was shot on November 22, 1963 and ended up being shot himself a couple of days later.  He was interred in a pine coffin, where he remained for almost twenty years.  Oswald’s body was exhumed in 1981 at the request of his widow, Marina.  Apparently, Marina wanted to test a conspiracy theory that a Soviet secret agent had assumed Oswald’s identity to carry out Kennedy’s assassination and had then been buried in Oswald’s place.   

As it turned out, it was in fact the real Lee Harvey Oswald who had been interred.  Accordingly, he was returned to his plot in the Rose Hill Memorial Park in Fort Worth, Texas.  His original coffin had suffered extensive water damage so the re-interment occurred in a new one. 

The coffin is being sold by the Baumgardner Funeral Home (who had handled the re-interment), with the California-based auction house, Nate D. Sanders, handling the sale. 

Bidding is set to start at $1,000.  The final sale price is expected to be much higher, although by how much is unclear.  Almost 50 years after Kennedy’s death, there is still a significant market for assassination-related memorabilia.  In 2007, the window and frame from where Oswald shot Kennedy at the Texas Schoolbook Depository, was listed at auction for $100,000 and ended up selling for more than $3 million.    

"Freedom 55"? More Like "Workin' 9 to 5"...

Saving enough for retirement is a big worry for many Canadians.  I’ve previously blogged about planning for “decumulation” and the uncertainty many face with difficult-to-predict retirement income.  However, a recent article in the Globe and Mail points out that, for many, worrying about spending during retirement may be a little premature – a bigger concern should be being able to retire in the first place.

The article cites the November 2010 edition of the Consumerology Report (published by the Canadian advertising agency, Bensimon-Byrne), which tracks consumer opinions on retirement.  The report found that while people looked forward to retirement, most expected they would have to work longer to reach retirement than they wanted.  It also found that most people did not believe that they would have enough savings to support themselves during retirement and would instead need to rely on government pensions such as the CPP or OAS. 

Some of the report’s other findings include the following:

  • Only one-third polled expect to retire by the time they are 65, while one-fifth anticipate working past 70  
  • Two-thirds of those currently working expect to continue working, at least to some degree, during retirement
  • More than a half of Canadians have little or no confidence that they’ve saved enough for retirement and almost half believe they will outlive their savings
  • Half of working Canadians expect to need support from their families during retirement while half also believe the government should have done more to help them prepare financially

And now for the good news - working Canadians have a largely favourable view of what retirement will hold once they finally get there.  They see it as a chance to start afresh and remain active – including in the bedroom.  More than half said they expect to have more sex when they reach retirement; although, they may be in for a disappointment – of the current retirees polled, most said they didn’t have more.   

As Income Trust Tax Changes Draw Near, Earth's Rotation Continues Uninterrupted

October 31, 2006, was a dark day for Canadian investors.  That was when our federal Finance Minister, Jim Flaherty, surprised everyone with the news that the government was introducing policy changes aimed at eliminating the tax benefits associated with income trusts and that those changes would be implemented January 1, 2011.  

The news promptly caused the business trust sector to tank.  In a two day period, the $200 billion sector lost $35.6 billion (a 16% decline).  

Prior to the tax changes being announced, income trusts were wildly popular in Canada.  First introduced in the mid-1980s, they are an ownership vehicle for businesses or assets that sell units to investors (who are the beneficiaries of the trust). The assets pay a return to the trust, which is then paid out to investors as either cash distributions or a return of capital. 

The tax benefits came because the trusts were able to “flow through” income to investors so that tax was not paid at the entity (i.e. asset/business) level, only by the unit holders.  This differs from a corporate structure where taxes are paid by the corporation and then again by the shareholders receiving dividends.  The other tax benefit came from the fact that income trusts could pay out as a return of capital, which is received by the unit holders on a tax deferred basis.   

With the proposed tax changes, most of the income trusts decided to convert back to a corporate structure.  This prompted fears that the payouts to investors would dry up. 

As it turns out, despite the catastrophic predictions, things have not been as bad as originally feared.  Of the 226 income trusts in existence in 2006, 60 have already converted to a corporate structure and 65 have announced they will be doing so.  Only 4 have stated they intend to remain as trusts. 

While many investors have seen a reduction in payouts (the average being 33%), approximately half the trusts plan to maintain dividends at the same level once the conversion to corporation has been completed. 

When It Comes to Money, Some Dead Celebrities Won't Stop 'Til They Get Enough

Michael Jackson may have died, but his ability to make money certainly has lived on! Over the past year, the King of Pop’s estate has raked in more than $242 million. In fact, Jackson apparently made more than any living celebrity, with the exception of Oprah.   

The sources of income are numerous – the estate has made money from last year’s film, “This is It”, radio play and album sales, memorabilia, a Jackson-themed video game, and the re-release of Jackson’s autobiography. 

The cash flow doesn’t show any signs of slowing – there’s a deal with Sony to put out unreleased recordings by Jackson which is expected to bring in a grave-rattling $200-250 million over the next seven years.  Additionally, the estate still holds the music catalogue that Jackson purchased, which includes songs by, amongst others, the Beatles, Elvis Presley, and Bob Dylan. 

Jackson’s not the only celebrity making money in the afterlife.  Jackson topped Forbes’ recent list of the 13 top earning dead celebrities, but there were others who made a decent showing.  In at number 2 was Elvis Presley, whose estate brought in a cool $60 million. 

Charles Schulz, the creator of Charlie Brown and the rest of the Peanuts gang, placed 4th ($33 million) with Theodor Geisel (a.k.a Dr. Seuss) coming in 7th place ($11 million). An interesting addition to the list was Albert Einstein, whose estate landed in 8th place with $10 million – most of Einstein’s post-death earnings have come from tie-ins with his name or image.

Forbes’ also produced a list of the “also rans”, who didn’t make the top 13, but whose estates are still making money.  Making the list are Michael Crichton, James Dean, Bob Marley, Marilyn Monroe, Tupac Shakur, Frank Sinatra, and Andy Warhol.   

Happy Hallowe’en!

Business Succession Planning: Plan Early, Plan Wisely

For most business owners, their business is their primary asset.  Unfortunately, many business owners do not plan for the orderly succession of the business.  In its survey of Canadian millionaires, the Wall Street Journal found that 40% reported having no estate plan and that business succession was a major worry.

Many business owners are surprised to learn that their family members aren’t interested in taking over their business – only 1/3 of businesses survive to a second generation and only 10% survive to a third.  Providing one or more potential successors can be identified, ensuring they are able to run the business and that the succession occurs smoothly are both essential.   

The recent succession problems involving the Crystal Cathedral Ministries, the church founded by the televangelist Reverend Robert H. Schuller (perhaps best known for his long running Sunday program, the “Hour of Power”), illustrates the problems a succession dispute can cause.       

In 2006, Rev. Schuller passed control of the church over to his son. However, the succession seems to have gone badly from the get go. Where the senior Rev. Schuller is charismatic and upbeat, his son was business-like and subdued.  The son wanted to experiment with new technology to draw a younger audience to the program, an idea that never caught on with the board of directors. 

The tipping point came when the son tried to implement some of the basic governance rules used by many nonprofits, such as removing those with a conflict of interest from the board of directors.  This would have meant removing his parents, sisters, and brothers-in-law (they were also employees of the company). 

Not long after, the son was removed from preaching on “Hour of Power” and a three person committee (which includes two of his brothers-in-law) was created to run the cathedral.  He has since quit and is in the process of creating his own Christian media network.    

It’s questionable whether the management changes will make a difference.  The church filed for bankruptcy last week and is $43 million in debt.  The “Hour of Power” peaked in popularity back in the 1980s and has seen its viewership cut in half with the shift in popularity from scripture-based to self-help style televangelism. As far as the Schuller family goes, the article indicates that relationships remain frosty.      

Interested in a Little Post-Death Procreating? Make Sure to Put It in Writing

The Globe and Mail reports that this past Friday a judge in New York City gave a woman permission to harvest the sperm of her husband, who had died Monday of last week.  An interesting twist is that the woman did not plan to carry any child conceived herself but rather intended to use a surrogate. 

The article notes that doctors aren’t optimistic that she will be successful conceiving because of the length of time that has elapsed since the husband’s death.  When the BBC News reported on another woman’s bid to harvest her partner’s sperm in April 2009, it noted that sperm should be collected within 36 hours of death. 

In Canada, the posthumous collection of reproductive material (such as sperm or eggs) appears to be much more restricted than in the United States.  In 2004, the federal government enacted the Assisted Human Reproduction Act (“AHRA”) which governs the collection and use of genetic materials. Section 8(2) of the AHRA is specific that reproductive material cannot be used after an individual’s death unless the donor had given free and informed written consent while living. 

I came across an interesting article from the National Post, posted on an infertility blog. In it, Dr. Keith Jarvi, the head of urology at Mount Sinai Hospital, noted that prior to the enactment of the AHRA, it was not unheard of for genetic material to be harvested from a deceased for reproductive use.  Dr. Jarvi has also co-authored a paper in the Journal of Andrology on the legal and ethical issues surrounding posthumous sperm retrieval which is worth a read. 

From an estate planning perspective, it’s worthwhile asking clients about post-death collection of reproductive material.  Once they get over the initial shock of the question, they may be happy you’ve asked!

Stieg Larsson's Books Might Be Good, But His Estate Planning? Not So Much...

Swedish author Stieg Larsson died without knowing how successful the publication of his “Millennium Trilogy” would be.  Since his death, it is estimated that worldwide sales of his books have topped 40 million. Unfortunately for Eva Gabrielson, Larsson’s partner of more than 30 years, she will not be sharing in any of the financial benefits.

Larsson died without a will (this is called dying “intestate”) and Swedish law does not provide inheritance rights to common law spouses on an intestacy.  As a result, the beneficiaries of Larsson’s estate are his father and his brother.    

Gabrielson’s recent interviews on the CBC radio show, The Current, and with the Globe and Mail provide additional information about her situation.    

While the intestacy law in Ontario is more forgiving to common law spouses than it is in Sweden, it does not make things particularly easy.  Part II of the Succession Law Reform Act provides inheritance rights to a spouse on an intestacy.  However, it defines “spouse” as either of two people who are married to each other, leaving a common law spouse without rights. 

Similarly, while s. 5(2) of the Family Law Act entitles a surviving spouse to elect to equalize net family property (which is the same property division that occurs on divorce), the election is available only when the spouses were married - it doesn't apply to common law relationships.   

This does not mean that a common law partner has no redress at all.  Under Part V of the Succession Law Reform Act, a common law partner has the right to bring a claim for dependant support.  Depending on the circumstances, common law claims on the basis of quantum meruit or constructive trust might also be available. 

Still, it hardly seems desirable for a surviving partner to be put to the expense and uncertainty of litigation on the other partner’s death.  Additionally, the litigation can become very contentious when the family members who are to receive the estate under the intestacy rules become reluctant to part with any of their inheritance. 

The best way to avoid these types of problems is to have a will.  That way the deceased's estate will be distributed as she or he intended – no doubt that Eva Gabrielson is wishing that Stieg Larsson had one. 

You've Received Your Inheritance...So Now What?

Receiving a large inheritance can carry with it exciting possibilities.  But suddenly “coming into money” can be daunting and even a little scary – particularly in situations where the amount is great enough to fundamentally change the beneficiary’s financial circumstances. 

Manulife Investments predicts that over the next couple of decades, Canadians will inherit $1 trillion.  In 2010 alone, Manulife estimates that Canadians will inherit $70 billion – and with no inheritance tax in this country, that money will be the beneficiaries’ to keep. 

For those who are inheriting money and are not sure what to do with it, the Globe and Mail’s recent article, “Overcoming the Stress of Investing an Inheritance”, provides useful advice.  The suggestions offered include:

  1. Put the money in a dedicated account to reduce the urge to just spend it – there’s nothing wrong with a “splurge” like a vacation, or some home improvements – but be careful not to inadvertently “fritter away” the money;

  2. Use the money to reduce debts (especially those that carry higher rates of interest than is likely to be earned by investing the inheritance);

  3. Where appropriate, consider making a contribution to RRSPs or TFSAs – while the long term benefits of doing so are obvious, the tax benefits to contributing (particularly to RRSPs) can provide (near) instant gratification; and

  4. If the money is going to be invested, consider hiring an investment adviser and/or a financial planner – and make sure to research the options available, as different advisers will have different fee structures.

For an idea of the options available, these two case studies provide real life examples of how two beneficiaries are using their inheritance. 

Happy Thanksgiving!

Collaborative Law and Estate Disputes

An article in the latest edition of Canadian Lawyer magazine explores the question of why collaborative law has not caught on for estate disputes. 

For the uninitiated, collaborative law is a form of dispute resolution which is popular in family law matters.  The objective is to resolve disputes without invoking the court process.   The parties and their counsel all sign an agreement that they will not go to court and attempts are made to resolve the dispute through discussions, information-sharing, and mediation. 

The process is consensual, and the parties are permitted to withdraw from it at any time; however, if they do decide to litigate the dispute, the counsel involved in the collaborative process cannot continue to represent them.  The website for Collaborative Family Lawyers of Canada provides useful information on the approach. 

There have been initiatives to integrate collaborative law into the estates and trusts field but, so far, success has been limited.  A large stumbling block is the notion that if the collaborative process fails (and litigation ensues) the parties will need to retain new counsel. 

From a practical level, this is problematic because the estates and trusts bar is pretty small – this, combined with the fact that estates disputes often have numerous parties, would create complications if counsel were disqualified from a file. 

Another problem relates to situations where there are minor or mentally incapable beneficiaries, thus requiring the involvement of the Office of The Children’s Lawyer (“OCL”) or the Office of the Public Guardian and Trustee (“PGT”).  Both government agencies only have the authority to act once a legal proceeding has been commenced, which obviously creates problems if the premise of the collaborative approach is to avoid litigation.  Additionally, the potential disqualification of counsel if the approach is unsuccessful again becomes a problem – the OCL and the PGT are the only ones with the authority to represent minors and incapable persons, respectively.  

Recently, the Collaborative Estates Law Working Group was formed in Ontario, with the objective of elevating knowledge and understanding of the concept amongst lawyers and the public.   It will be interesting to see whether the collaborative approach starts to gain a stronger foothold – if it is to become more popular, it would seem the model will need to be adjusted to account for the unique challenges posed by estates and trusts disputes.  

Eco-Friendly Burial: Going Green in the Final Frontier

A recent article in the Economist, “Exit Strategies – Innovations for a Conservative Industry,” discusses the environmental damage that comes from traditional burial rites and the eco-friendlier options that are emerging.   

The harm generally starts shortly after death with the embalming process and the harmful chemicals used.  It continues as the body is moved to a coffin, frequently made of valuable hardwood such as oak or mahogany.   

Neither cremation nor traditional burial are particularly kind to the environment.  Cremating a body reportedly produces 160 kg of carbon dioxide as well as other gases and chemicals.  Traditional burial is even more harmful – by combining the formaldehyde, wood, and cement involved, with the ongoing maintenance required of gravesites (such as lawn mowing), burial creates an even larger carbon footprint than does cremation – and that’s leaving aside the issue of land scarcity. 

Perhaps as a natural offshoot of the trend towards “living green,” there is now an increasing interest in “dying green.” There are a number of companies that supply environmentally friendly funeral products.  For example, Passages International offers such green options as wicker caskets and cornstarch eco-urns. 

Environmentally friendly methods of disposing of bodies are also becoming more popular.  Since the late 1990s, natural burial grounds have been opening in the United States (although they do not appear to have made it to Canada yet).  The objective of natural burial is to dispose of the body in a chemical-free way, in a manner that does not inhibit decomposition.

With natural burial, people are buried unembalmed, in a biodegradable coffin (usually 2-3 feet below ground, rather than the usual 6 feet).  Headstones are typically modest and made of natural materials – although, in some natural cemeteries, there are no grave markers and instead grass and wildflowers are left to create a meadow.    

Eco-friendly cremation options are also emerging – resomation breaks down the body in a water and alkali-based solution and what remains is dried into a powder, while promession involves freeze-drying the body with liquid nitrogen then turning it into dust with ultrasonic vibration. 

While eco-friendly burial methods are kinder on the environment, they’re not necessarily kinder on the wallet – they cost about the same as a traditional burial or cremation. 

"If Dementia Were a Country, It would be the World's 18th Largest Economy..."

Over the past week, the Globe and Mail has been running an interesting series on various issues relating to dementia

According to Alzheimer’s Disease International, an estimated 35.6 million people worldwide suffer from dementia.  By 2030, the number is expected to double to more than 65 million.  

The costs of caring for people with dementia are significant – it is estimated that more than $350 billion per year is spent on medical care and residential care. Unpaid labour by family caregivers has an estimated value of $253 billion.  Twenty years from now, the total costs are projected to exceed $1.1 trillion.  To put these numbers into context, Alzheimer’s Disease International estimates the current costs of dementia to be equivalent to 1% of the global gross domestic product – in geographic terms this amount would be equivalent to that of the world’s 18th largest economy, falling in between Indonesia and Turkey. 

While those suffering from dementia clearly need supportive care and medical treatment, they often also need financial protection. 

The financial risks faced by those suffering from dementia are wide ranging.  In some cases, the extent of an individual’s diminished capacity is not spotted quickly enough (or, if it is, there is no one with the authority to make financial decisions on the individual’s behalf).  This can lead to situations where the person enters into unwise financial transactions or is taken advantage of by unscrupulous acquaintances or relatives.  The Ontario Superior Court of Justice’s decision in the much discussed case of Banton v. Banton (involving an 88 year old retirement home resident who married a 31 year old waitress at the home) illustrates the devastating effects that incapacity can have on the financial decisions someone makes.

In other situations, an elderly person’s diminished capacity can provide a battleground for fighting family members, all of whom are convinced that they ought to be the one to control the individual’s finances.  The ongoing case of Abrams v. Abrams provides a good example of the complexity and scope of litigation that can emerge when family members, all with the stated objective of protecting an incapable person, become pitted against each other.

On a non-litigious note, elder mediation is growing in popularity, although it is still fairly new.  The idea behind elder mediation is to get everyone in the same room with the joint objective of getting the individual with dementia the best care.

Another Billionaire Dies, Avoids U.S. Estate Tax

American broadcasting mogul and noted philanthropist John Kluge died a couple of weeks ago at age 96, leaving behind an estate worth approximately $7 billion.  

It’s not clear how his estate was to be divided on his death – and given the popularity of trusts amongst the wealthy (which, amongst other things, can keep the distribution of assets shielded from public view) we might never know. 

One thing we do know, however, is that his estate will avoid U.S. estate tax (at least for now – but more on that in a minute). 

While the estate planners down south probably can’t open a business section without reading about 2010 estate tax issues, I’ll briefly fill in those in the audience who aren’t familiar with the topic.

In the United States, the government imposes an estate tax.  Basically, when someone dies with assets valued over a fixed exclusion amount, a specified tax rate is applied to the value of their taxable estate (i.e. their gross estate, minus certain allowable deductions) – as you can probably guess, the specifics are more complicated than that, but you get the picture. 

From 2001 to 2009 the maximum tax rate declined from 55% to 45%, while the exclusion amount increased from $675k to $3.5 million.  However, for 2010, the US Congress let the estate tax lapse – meaning that this year there is no federal tax payable.  The exemption is for one year only – in 2011 the tax returns with a rate back at the 2001 level of 55% and an exclusion amount set at $1 million.

Above I noted that estate tax was being avoided “at least for now” – that’s because there has been a lot of talk that Congress may enact a law imposing a tax rate for 2010 and make it retroactive to the beginning of the year.    

Kluge isn’t the only billionaire whose estate will be able to avoid the tax: Texas oil tycoon Dan L. Duncan died in March leaving an estate worth approximately $9 billion and New York Yankees owner George Steinbrenner died in July leaving behind approximately $1.1 billion. 

I guess we’ll have to wait and see if, in the last 3 ½ months of the year, the estates of any other billionaires manage to dodge the estate tax – not to be morbid but David Rockefeller Sr. (son of oil baron John D.) is 95.

Coming Soon - Estate Disputes Hit the Boob Tube

It was bound to happen. Really, it was only a matter of time.

A reality show about estate litigation is currently in the works. 

I happened upon this frightening piece of news while reading the Wealth Law Blog (which is published by an Oregon-based law firm).   

In mid-July, the production company responsible for “LA Ink” and “Storm Chasers” sent out a casting call for residents in the New York Tri-State area.  The production notice reads in part:

Are YOU and YOUR RELATIVES arguing over a loved one’s Will? Do you need help resolving family conflicts and evaluating the worth of objects in the Estate?

Was your loved one’s Will vague– who should get what -- and you and your relatives can’t agree, we want to hear from you!!!

Billing the show as a “life-changing new series”, the production company promises to settle the participants’ “estate nightmare” as well as to financially compensate them. 

The casting call doesn’t indicate exactly how they intend to resolve the estate disputes – will the program have a touchy-feely Oprah-esque sentiment to it, or will things be resolved Judge Judy-style?  

I’m curious to know what type of estate disputes will be featured.  A secret I’ll share with you is that a lot of estate litigation isn’t all that exciting – I doubt that disputes over trustee compensation or the appropriate interpretation of administrative clauses in wills would make for particularly fascinating viewing. 

So, would I tune into a show like that?  On the one hand, the idea is about as appealing for me as I imagine that sitting around watching COPS would be for your average police officer.  On the other hand, I can already feel the morbid curiosity getting the better of me.