Novel and interesting estate disputes frequently make the news, especially when the fight is over family fortunes.
The Gore-Tex water proof founder recently died leaving an estate that has $3 billion in annual sales.
The following was taken from the Globe and Mail, May 24.12 Business section:
“F. Scott Fitzgerald Observed! that the rich are different, but that does not mean an heiress can adopt her 65-year-dld ex-husband to increase her family’s claim to a billion dollar inheritance.
Delaware’s Supreme Court ruled onTuesday that the un- „ conventional adoption did not*” entitle the man to inherit a share of the Gore-Tex fortune? aterproof, fabric tortune. ‘
Heirs to the founders of WX. Gore & Associates Inc. of Newark, DeL, have fought for years over how to divide their stake in the privately held company, which has $3-billion (U.S.) in annual revenue.
Their battle landed in court over the question of how the ■ late Wilbert L. Gore, who founded the company in his basement in 1958* and his late wn%, Vieve, intended to divide their fortune.
At the centre of the dispute was the adoption nearly a decade ago by Susan Gore, one of Wilberfs five children, of her ex-husband, Jan Otto*
According to the court’s opinion, Susan Gore and her son Nathan Otto began considering the adoption to even out the potential distribution from a family trust,
But because Susan Gore and Jan Otto had three children, while each of her four siblings had four, Susan’s children stood to inherit fewer shares.
She decided to adopt her ex-husband , who initially assured her he wanted to be her sone merely to benefit their children.
Gore went to a Wyoming court and secretly adopted her 65 year old ex in 2003
A year later, Jan Otto had a ;change of heart and decided to – ~ Keep the potential distribution from the trust for himself, according to the court ruling.
While Susan was considering whether to “un-adopt” her ex-husband in 2005, according to the opinion, her mother Vieve Gore died, releasing the trust assets and setting in motion the legal wrangling that led to the court’s ruling.
“The fact that Susan kept this adoption secret until Vieve died further evidences that Susan and the Otto grandchildren knew that they were acting to thwart Vieve’s intentions,” Chief Justice Myron Steele wrote in the 27-page opinion.
The horrendous death tolls in recent years from tsunamis, natural disasters, and murder unfortunately raise interesting legal questions.
The bodies of many of the victims remain missing and may never be recovered.
Public officials have simply presumed these people to be dead.
It is one thing, however, to estimate the numbers for the purposes of reporting to the public.
It is quite another to fulfil the legal steps required to obtain a declaration that a particular individual should be officially considered dead.
People sometimes go missing for many years, sometimes forever. Such disappearances inevitably raise a variety of legal questions.
These can involve everything from the preservation of assets, the administration of the estate, the right to any insurance proceeds, the entitlement of the
missing person to share in estate of a third party, to many other such questions.
When faced with a situation involving a missing person, the estate lawyer must determine which remedies may be available. Is there is sufficient evidence to
obtain, without further delay, a declaration of presumption of death order? Alternatively, is it possible and necessary to have a curator appointed to administer
the missing person’s affairs, until a future date when a presumption of death may be obtained?
In British Columbia the relevant legal remedies are contained in two provincial statutes.
Firstly the Estates of Missing Persons Act discussed yesteday,which provides, inter alia, for the appointment of an interim curator.
Secondly the Survivorship and Presumption of Death Act which authorizes applications for a declaration of presumption of death. This statute also provides for
a presumption of survivorship where two or more person die in circumstances making the order of death uncertain. Specifically it provides that for all purposes
affecting property, their deaths are presumed to have occurred in the order of their seniority, i.e. the younger person is deemed to have survived the older
person.
PLEASE NOTE THAT THE SURVIVORSHIP AND PRESUMPTION OF DEATH ACT WILL LIKLEY BE REPEALED IN MID 2012.
THE COMMON LAW RULES
a) THE PRESUMPTION OF DEATH
The common law underlies all statutes. Thus it is helpful to firstly consider the common law, as it applied prior to the enactment of these statutes. At common
law, the courts would presume a missing person to be missing only if all the following circumstances were proven:
a) the person had been absent for at least seven years;
b) during those seven years the person had not contacted the persons he or she would normally contact;
c) all reasonable enquiries had been made as to the person’s whereabouts; and
d) all these reasonable enquiries were to no avail.
In the case of Re Phene’s Trusts (1869) L.R. 5 Ch. 139 the headnote succinctly summarizes the law as follows:
“If a person has not been heard of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption, but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential.”
In order for the presumption of death to arise, there must be anunexplained absence. The presumption will not arise if the circumstances are such as to
account for the absence. However even in circumstances where the original absence was capable of explanation, that may change. Thus an unexpectedly
prolonged absence together with no contact with family or friends may be sufficient to satisfy the absence requirement.
Where it is shown, however, that the lack of contact by the missing person was characteristic, then the presumption of death will not arise.
The degree of reasonable enquiries required to support an application will vary with the circumstances of the absence. Generally the court will require that
inquiries have been made to all the persons who might normally have heard from or of the missing persons. In addition the court will usually require that
enquiries be made of police departments, phone records, bank records, and by advertising in the locale where the person was last known to be.
The presumption of death is limited. It is not retrospective and there is no legal presumption as to any particular date, within the seven year period, that the
person died. Any precise date of death must be established by the evidence.
Once the presumption is established, then the missing person will likely be declared dead unless there is evidence to rebut the presumption. Evidence likely to
rebut the presumption usually centers around possible motives for the missing person to deliberately disappear. This may involve explanations such as
criminal activity, financial or family problems. If there is an alternative explanation for the absence, this will generally prevent the presumption from arising.
To raise the presumption, the onus of proof rests with the person who will benefit from the declaration of death. (Re Lewe’s Trusts (1871) 6 Ch. App. 356.)
Proof of presumed death requires proof only on the balance of probabilities.
Re Johannisse and Gray(1985) 33 A.C.W.S. (2d) 231 determined brain death to constitute death, for legal purposes.
THE INFERENCE OF DEATH
At common law, the presumption of death could only apply if a person were missing for at least seven years.
Apart from this presumption of death however, it has long been possible for the courts to infer death from reasonable evidence. In order to persuade a court to draw such an inference, it is necessary to provide evidence from which the court would reasonably conclude that:
a) there could be no other reasonable explanation for the absence; and
b) no apparent motive for the disappearance.
Such fact situations are usually linked to an act of peril at the time of the disappearance. Examples could include disappearing while climbing Mount Everest or
disappearing during a natural disaster such as the tsunami.
THE TIME OF DEATH
At common law, it is sometimes important for succession purposes to determine whether the missing person survived to a particular relevant date.
The courts could declare that a person had died by a specified date, however the actual date of death had to be established by the evidence. It was most often
inferred from circumstantial evidence.
If death is to be presumed, the court will determine the date to have occurred at some time during the seven year period after the disappearance. Courts have
stated that it is more likely that the missing persons died shortly after the disappearance than later, but there is no such presumption in law. It is a matter of
satisfying the court based on the evidence adduced
It is likely, however, that when a person disappears in circumstances of peril, the court will conclude the death occurred shortly after the peril.
The onus of proving death generally remains on the person who claims a right for which proof of death is necessary. Similarly the onus of proving the date of
death remains on the person who claims a right for which proof of the date death is necessary.
In order for a death is to be presumed, the person bearing the onus of proof must raise a prima facie case, whereupon the burden to rebut the presumption
shifts to the person or persons who would deny the death has occurred.
THE SURVIVORSHIP AND PRESUMPTION OF DEATH ACT.
Importantly, The Survivorship and Presumption of Death Act, s. 3 replaces the common law requirement of a seven year absence. In its place s. 3 provides that
any unexplained absence may be sufficient to justify an order of presumed death. The court may grant an order of presumed death where a review the evidence
satisfies the court on a number of grounds that the person should be presumed dead.
Section 3 reads, in part, as follows:
“3 (1) If, on the application of an interested person under the Rules of Court, the court is satisfied that
(a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named,
(b) the applicant has no reason to believe that the person is living, and
(c) reasonable grounds exist for supposing that the person is dead,
the court may make an order declaring that the person is presumed to be dead for all purposes, or for those purposes only as are specified in the order.
(2) An order made under subsection (1) must state the date on which the person is presumed to have died.
(3) Any interested person may, with leave of the court, apply to the court for an order to vary, amend, confirm or revoke an order made under subsection (1).
(4) An order, or a certified copy of an order, declaring that a person is presumed to be dead for all purposes or for the purposes specified in the order, is proof of death in all matters requiring proof of death for those purposes.
(5) The registrar of the court must forward to the chief executive officer under the Vital Statistics Act an order made under subsection (1) or (3) within 30 days of the entry of the order.”
Section 3 thus permits a court to make an order that a person shall be presumed dead for all purposes, or only for those purposes that are specified in the
order. This allows the court to satisfy immediate needs without prejudicing the interests of other parties.
The presumption may be rebutted by contrary evidence.
Further, Section 2 of the Act reads as follows:
“2 (1) Except as provided in subsections (2), (3) and (4), if 2 or more persons die at the same time or in circumstances that make it uncertain which of them survived the other or others, those deaths are, for all purposes affecting the title to property, presumed to have occurred in the order of seniority, and accordingly the younger is deemed to have survived the older.
(2) This section is subject to section 72 of the Insurance Act.
(3) Subject to a contrary intention appearing by the instrument, if
(a) an instrument contains a provision for the disposition of property operative in any one or more of the following cases, namely, if a person designated in the instrument
(i) dies before another person,
(ii) dies at the same time as another person, or
(iii) dies in circumstances that make it uncertain which of them survived the other, and
(b) the designated person dies at the same time as the other person or in circumstances that make it uncertain which of them survived the other,
then, for the purpose of that disposition, the case for which the instrument provides is deemed to have occurred.
(4) Subject to a contrary intention appearing by the will, if
(a) a will contains a provision for a substitute personal representative operative in any one or more of the following cases, namely, if an executor designated in the will
(i) dies before the testator,
(ii) dies at the same time as the testator, or
(iii) dies in circumstances that make it uncertain which of them survived the other, and
(b) the designated executor dies at the same time as the testator or in circumstances that make it uncertain which of them survived the other,
then, for the purpose of probate, the case for which the will provides is deemed to have occurred.
(5) If a contract of accident insurance or of sickness insurance, or both, provides for the payment of money on the death by accident of the person insured and the person insured and a beneficiary perish in the same disaster, it is presumed, in the absence of evidence to the contrary, that the beneficiary died first.
The exception stated in Section 72 of the Insurance Act reads as follows:
“Simultaneous deaths
72.Unless a contract or a declaration otherwise provides, if the person whose life is insured and a beneficiary die at the same time or in circumstances rendering it uncertain which of them survive the other, the insurance money is payable in accordance with section 52 (1) as if the beneficiary had predeceased the person whose life is insured.”
If not rebutted, the effect of the presumption is that the younger person would inherit from the older under the latter’s will or on an intestacy.
An interesting illustration of the operation of these presumptions is found in the case of Leach v. Egar and Public Trustee 1990 38 E.T.R. 65. In that case a
divorced mother and her children were lost at sea and presumed dead. The trial judge ruled that the father and former husband was entitled to indirectly inherit
his estranged wife’s estate.
The court applied s.2 of the Survivorship and Presumption of Death Act and determined that the mother died first and then the children. Because the mother
died intestate, her estate passed to the children who were deemed to have survived her. Because the children also died intestate, their estates passed to their
surviving father. In this decision the B.C Court of Appeal upheld the trial court’s decision saying that it was not contrary to public policy to permit this inheritance.
Mom Always Loved YOU Best is an expression that many boomers grew up with.
The Smothers Brothers said it every show.
Trevor Todd of disinherited.com has a sticker with the expression on the back of his Smart car, and frequently notices other driver’s snicker as they pull up behind and read it.
It was with great delight that I read in the Globe and Mail on or about March 22.12 a wonderful article entitled none other than ” MOM ALWAYS LOVED YOU BEST”
I was unable to reproduce the article in its entirety but here are some of the salient features:
1. Adult sibling rivalry remains one of the most harmful and least addressed issues in the family – we all know it when we see it but very few have an idea what to do about it let alone understand it;
2. Sibling rivalry is a normal aspect of childhood -our siblings are our very first rivals who compete with us for love and attention as well as food, toys and jsut about everything else;
3. Sibling relationships are often the longest in our lives– research shows that up to 45% of adults have a rivalrous or distant relationship with a sibling;
4. People questioned late in life often say one of their biggest regrets is being estranged from a sibling;
5. The rivalry often persists into adult hood because it is never dealt with in childhood, while issues with parents often have been;
6. Whereas many adults have been through years of therapy and worked out a lot of guilt and other issues with their parents, when it comes to their siblings, they often can’t even articulate what exactly the problem is
Sound familiar?
I might add that it is great for business.
– See more at: http://www.disinherited.com/blog/mom-always-loved-you-best#sthash.mqaqmUxH.dpuf
Did you know that of all women called to the bar in 2003, only 66 percent retained practising status in 2008 in comparison with 80 percent of men called in the same year?
Did you know the trend in BC is that the number of lawyers in the older age ranges (50 to 65) has increased significantly whereas the number of lawyers in the younger age range (25 to 40) has remained the same or has declined?
In 1998, 77 percent of BC’s legal profession was under the age of 50 but by 2008, only 55 percent of the profession was under the age of 50. If those trends continue, the legal profession can expect to lose many lawyers to retiredment without a corresponding increase in the number of younger lawyers.
The reasons cited for these lawyers leaving the practice of law are the usual suspects: Too much work, lack of mentorship, inflexibility of work schedules, and generally very little time for family, friends, leisure, or a life outside work.
The hypotheseis examined in this article is that the above statistics can be changed with a revival of the mentorship concept, and with a lot of creativity and determination. In her story, Candace Cho shows how the disastrous statistic can be circumvented.
The Mentor Perspective
Early in my career, I had the great benefit of a wonderful mentor, Dennis Milne. Dennis was an excellent counsel with a wealth of experience. His guidance forever forged my legal career.
Even today, when in doubt, I inevitably ask, “what would Dennis have done?” and the solution magically appears. Dennis’s support and advice gave me much-needed confidence, especially when I was a novice. It continues to support me today.
Because mentoring relationships in the practice of law have generally fallen by the wayside, we are all losing out. Unquestionably, the benefits of mentoring are reciprocal!
When I shared my views with Candace over lunch, we reached a mentoring agreement in no time.
Each relationship will be unique but Candace and I discuss every topic under the sun and most days we share several emails. Our exchange of marketing ideas has been especially stimulating. When Candace faces challenges in dealing with opposing counsel, I help with effective strategies for stick-handling such files.
From a mentor’s perspective, it is flattering to think someone else believes our opinion is important. The enthusiasm of a young lawyer is contagious and re-invigorating. The fresh ideas and perspectives Candace brings help rejuvenate me.
It is especially rewarding to believe that in some way I help ensure this bright young lawyer will remain and strive in our profession, rather than give up in frustration and stress.
Trevor Todd restricts his practice to Wills, estates, and estate litigation. He has practised law for 34 years and is a past chair of the Wills and Trusts (Vancouver) Subsection, BC Branch of the Canadian Bar Association, and a past president of the Trial Lawyers Association of BC. Trevor frequently lectures to the Trial Lawyers, CLE, and the BC Notaries and also teaches estate law to new Notaries. His Website includes 30 articles on various topics of estate law.
The Mentee Persective by Candace Cho
In August 2009 I was called to the Bar, but found myself unemployed along with half my graduating class due to the worldwide financial crisis.
At first, I did what everyone else did — apply despreately to any job posting that came up. After a while though, I thought about the depressing statistics described above and realized that even if I found work as an associate, the odds were I was going to leave the practice of law in a few years anyway, out of sheer frustration. What was the alternative? The only apparent answer to me was to rebel against tradition and carve my own way to professional fulfillment.
Equipped with my undergraduate background in marketing and my entrepreneurial spirit, I decided to take the plunge to start my own law firm — all on my own terms. I decided my competencies and interest were in estate litigation; I would build a boutique practice in that area of law.
I had the fortune to meet my current mentor Trevor Todd during my articling year while working on a complex estate litigation; Trevor was acting as opposing counsel. When I made the decision to start my own practice in estate litigation, it seemed a good idea to get better acquainted with him to determine if a business association could be negotiated; he was clearly an experienced lawyer in the field.
To my pleasant surprise, he was keen and eager to meet with me, and he began referring work to me immediately after our first business lunch.
Trevor had, in fact, rejected the traditional firm model years ago, and had developed an alternative business model based on referral associations with independent lawyers he trusted and repsected. He told me he had been looking for a junior lawyer for some time to whom to refer work, but had had difficulty finding someone to form an association.
We hit it off right away at our lunch; the seeds of our mentorship relationship were already forming as we exchanged our different, yet complementary ideas about marketing, the practice of law, politics, and various social issues.
As Trevor started referring more and more files to me, I was quickly becoming overwhelmed with the sense that I was getting in way over my head. While I derived immense satisfaction from the freedom and creativity of managing my own files, and having direct client contact, something was not quite right. I was a young and inexperienced lawyer pretending to my clients that I had all the answers, when in reality I was insecure about my abilities and decisions. In short, I needed a mentor.
At that point, I proposed to Trevor that I pay him a mentorship fee in addition to the referral fee I was paying him for files he was referring to me. This novel proposal was accepted by him, which allowed us to forge a unique mentorship relationship. Trevor and I meet for dim sum lunch once a week to discuss litigation strategy, client management, politics, and any other topic that interests us on that particular day.
The net effect of this relationship is that I have all the benefits of having a boss, but none of the drawbacks. I get the wisdom and knowledge from an experienced lawyer to help me manage my practice, but I have the freedom to determine my own hours, run my own business, and have the final say on how to conduct my files.
Conversely, Trevor has all the benefits of having an associate, with none of the drawbacks. He receives monetary compensation for his mentorship and source of referral work, but does not have the risks of having to pay a set salary or overhead expenses associated with hiring an associate. It is a beautifully symbiotic relationship because it is mutually beneficial and satisfactory to both parties.
I just celebrated my first anniversary of lawnching my own business, Onyx Law Office, and I could not be happier. I have a burgeoning practice with meaningful work, manageable clients, great mentorship, and enough flexibility and profit to afford to take vacations, spend time with loved ones, and serve the community. What’s more, I can honestly say I look forward to going to work, and am passionate about what I do.
