Tag: Media

Estate Inheritances

Yesterday I blogged about who were nieces and nephews in the Re Holmes Estate.

One of the interesting side issues of the Holmes Estate case was that pursuant to the deceased’s will, if any of the 2 testator’s nieces or nephews predeceased the testator, that person share of his estate was to be paid to the predeceased person’s spouse.

In fact the spouse of one of the nieces of the deceased, had been convicted of her murder several years prior.

The court held that the convicted spouse of the deceased niece was not entitled to her share of the estate, because of the general rule of public policy precluding a person from benefiting from a crime.

Accordingly the Court held that the gift to the nieces and nephews was a class gift,  and when a class member was disqualified from taking a share, that share was to go to increase the shares of the surviving class members.

The Court followed the Supreme Court of Canada decision of Nordstrom v Baumann 37 WWR 16, ( 1962) SCR 147 which had clearly stated that the will of public policy which precludes a person from benefiting from his or her own crime overrides the statute law as to the distribution of the estate of an intestate.

The court easily held that it is permissible in civil actions to make findings of fact which you proven in criminal proceedings would be held criminal.

Accordingly Canadian civil courts have repeatedly determined the question of whether or not the conduct of an individual amounts to a crime, for the purpose of invoking the rule of public policy precluding a person from benefiting from his own crime.

In this case the will, the questionable beneficiary was found to be criminally insane at the time she said a fire which cause the death of her husband.

Accordingly the court allowed her to inherit, as the finding of insanity did not prevent her from inheriting due to public policy. Her share was thus placed with the Public Guardian.

Ending Life Support

 

disinherited.com was initially consulted in this most interesting court case only days before a decision had been made to end Kenny Ng’s life.

 

I retained Candace Cho, my mentee, to act in the matter and shadowed her handling of the court action, including sitting at counsel table while she ably argued the case on behalf of the family, opposing the wife’s application to end Kenny’s life support.

 

The reporter, Ian Mulgrew sat in the court room for most of the legal submissions and wrote the following balanced view of this intriguing questions:

 

What is in the best interest of the patient, Kenny Ng- to live or to die, and who should make that decision?

 

Brain injured man at centre of legal battle over whether to remove feeding tubes

 

A car accident left former math whiz in a vegetative state, now his wife and family are at odds over his fate

 

BY IAN MULGREW, VANCOUVER SUN DECEMBER 5, 2012
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A 57-year-old Vancouver man who has languished in a coma for seven years has become the focus of a tragic family tug-of-war in B.C. Supreme Court over whether he should live or die.

Photograph by: Steve Bosch , PNG files

A 57-year-old Vancouver man who has languished in a vegetative state for seven years has become the focus of a tragic family tug-of-war over whether he should live or die.

His wife Lora wants medical staff to remove Kenny Ng’s feeding tubes, which will cause him to starve to death over about two weeks.

His parents, siblings and relatives, however, have asked B.C. Supreme Court Justice Miriam Gropper to intervene and keep Ng alive in the hope he can benefit from recent neuroscience medical discoveries.

They argue Ng’s wife should be replaced as the person making decisions about his long-term care at the George Pearson Centre, since he may qualify for pioneering treatments by celebrated brain researcher Adrian Owen.

“They believe that Dr. Owen’s study is exactly what Kenny has been waiting for over the last seven years,” the family’s lawyer Candace Cho said. “And knowing Kenny’s belief in technology and progress, they believe that Kenny would jump at the chance at participating in the study.”

On Tuesday, she played for the judge a short, heart-rending video of the man in his hospital bed reflexively responding to visitors.

“The fact is, Kenny is very much alive,” Cho maintained.

“He is breathing on his own, able to move his head around, make noises, open his eyes, and the only thing that the hospital is doing to keep him alive is to feed him nutrition and fluids.”

Several members of Ng’s family sat stoically on one side of the courtroom, his wife inscrutable on the other.

Ng was described as a former math-whiz who graduated from Sir Charles Tupper secondary. He became an electrical engineer and started his own successful business, Phase Technology, involving the design, manufacture and sale of petroleum analysers.

His predicament is reminiscent of a recent Alberta case involving a young girl the courts ordered to be taken off life-support in spite of her parents’ wishes.

The judges in that province endorsed the view that life support should be terminated where medical specialists unanimously believe the patient was without awareness or hope of recovery and invasive treatment provided no potential benefit.

Lawyers for Ng’s wife say that’s the situation here, although the family insists otherwise.

“This is not the case of a brain-dead patient on ventilators and any type of machine imaginable to keep him alive, with absolutely no chance of recovery and a family that is holding onto his life for their own benefit and comfort,” Cho said.

Lawyers for Ng’s wife argued, though, that is exactly the case — loved ones who can’t say goodbye making “outrageous allegations” while hoping for a miracle.

“It’s an affront to (Ng’s) human dignity,” said lawyer David Dahlgren.

Ng suffered traumatic brain injuries on Sept. 9, 2005, during a car accident in Washington State that killed his eldest son, injured his two other children and left his wife badly hurt. Since then, he has been minimally conscious.

Over the last year, Ng’s family told the court his wife has become estranged from them and no longer committed to doing what is in his best interest.

“Kenny’s estate was worth approximately $3.3 million in 2006,” Cho said, arguing that financial gain was a factor.

Mrs. Ng’s lawyers dismissed such “offensive” claims as defying belief, given Mrs. Ng’s devotion to her husband’s care — she hired an expert acupuncturist and took Ng on outings to a mall and the local Home Depot to stimulate him.

She hoped he would recover but came to realize it was futile and decided to have the tubes providing food and fluid removed after Ng’s care team concluded such a decision was “medically appropriate.”

“We’re here today, my lady, because the [family] are regrettably or sadly unable to accept the reality of Mr. Ng’s condition,” lawyer Gary Fraser said.

“They cannot let go of Mr. Ng for their own personal reasons …. They simply can’t let go.”

Shortly after the horrific accident, Fraser explained, doctors said it would be appropriate to remove Ng’s feeding tubes.

Lora Ng didn’t’t act on that advice but waited to see if her husband improved. She made the decision to remove the tubes “after wrestling with it for almost seven years,” Fraser added.

“It wasn’t made in haste, it wasn’t rushed.”

But the family insisted letting Ng die would be wrong given the startling work in neuro-imaging by Dr. Owen, which proves some patients suffering from locked-in syndrome, or who have lain in vegetative states for years, may be more conscious than we realize.

In 2010, Owen, then at the University of Cambridge, UK, communicated with a man who had been in a coma for five years.

A year later, the University of Western Ontario lured him to Canada with $20 million in funding.

“Since arriving,” the doctor said in a report filed with the court, “we have seen 12 patients in Ontario (and one from Alberta) and, of these, two are able to communicate repeatedly using our (functional) MRI technique. In one case (a male traumatic brain injury patient who had been repeatedly diagnosed as vegetative for 12 years), we were able to ask the question ‘are you in any pain?’ and twice decoded the answer ‘no’ using our technique.”

The doctor continued: “I have not examined Mr. Ng, so I cannot judge whether he would be suitable for inclusion or not, but considering his clinical diagnosis (minimally conscious state), his age, and the nature of his injury I see no reason why he would not be an ideal candidate, subject to an assurance from his referring clinician that he would be safe to travel the distance.”

If the court intercedes, the family said it hopes to have Ng assessed by Owen’s team to see if he can be admitted into a new research study involving the groundbreaking techniques.

Lawyer Dahlgren said the court has no reason to step in: “Mr. Ng does not need protection in these circumstances.”

Justice Gropper reserved her decision.

imulgrew@vancouversun.com

Read more:http://www.vancouversun.com/health/Brain+injured+centre+legal+battle+over+whether+remove+feeding+tubes/7652011/story.html#ixzz2EEEiuErD

– See more at: http://www.disinherited.com/blog/ending-life-support-ng-case#sthash.SAHZHFNW.dpuf

disinherited.com wholeheartedly endorses the recent article in the Vancouver Sun on October 22, 2012 co -written by Marjorie Griffin Cohen and retired former Justice Donna Martinson.

There simply needs to be more women and minorities appointed as Federal Court appointed Judges to the BC  Supreme Court.

The authors noted that in the past two years the federal appointments to the Supreme Court of British Columbia have been 10 in number, none of which have

been female and none of from an ethnic minority.

Shockingly, since 2009, of the 31 appointments, only five were women and only one was not Caucasian.

The authors note that these mostly white male appointments simply compound the already historical serious lack of female and minority representation on the Supreme Court bench.

For many years now our society has become increasingly multicultural with a diversity of backgrounds, ethnicities, experiences, and perspectives that must be matched by the equivalent diversity and skills on our bench.

The report was also critical of the very few appointed justices who have experience in family law, of which there is a great need to be filled by our courts.

Family law by its very nature grapples with societal problems that ultimately affect everyone.

With the high divorce rates, It is probably the one area of law that most people will come into contact with at some point during their lifetime, yet it is seemingly not taken seriously by the powers that be.

 

For example, BC is one of the few Provinces that does not have specialized family courts, another  seemingly egregious oversight.

Women and minorities have historically been vulnerable and marginalized, yet  still have suffered dramatic cutbacks to legal assistance such as legal aid in recent years.

It is simply fair and the hallmark of an advanced democracy that skilled women and minorities be chosen in appropriate more proportional representations as members of the Supreme Court of British Columbia.

– See more at: http://www.disinherited.com/blog/more-women-and-minorities-need-be-appointed-judges#sthash.aeVoXURC.dpuf

Periodically disinherited.com   republishes  an international  news story relating to inheritance laws.

While almost everywhere  in the world lacks the Wills Variation act that British Columbia and New Zealand enjoy, it is gratifying to  see the rights of  disinherited spouses anad children expanding throughout the world, slowly by slowly, where they replace previously   unjust laws.

In a landmark ruling Botswana’s High Court on Friday gave women inheritance rights for the first time, up-ending a male-dominated system that had prevailed in the thriving African nation.

Announcing the ruling, Justice Key Dingake said, “It seems to me that the time has now arisen for the justices of this court to assume the role of the judicial midwife and assist in the birth of a new world struggling to be born.”

The court ruled that a tribal law, giving the youngest-born son rights to inherit the family home was not in line with the country’s constitution, which guarantees gender equality.

The court had been hearing a case brought by three sisters aged over 65, whose claim to family property was being challenged by their nephew.

“This is a significant step forward for women’s rights not only in Botswana but in the southern Africa region, where many countries are addressing similar discriminatory laws,” said Priti Patel of the Southern Africa Litigation Centre.

 

Early this week disinherited.com blogged about the willingness of the courts to protect the privacy of various litigants under certain circumstances.

The Supreme Court of Canada ruled on such an important issue today in a land mark decision  A.B v Bragg Communications Inc 2012 SCC 46

The  Court Facts are as Follows:

A 15‑year old girl found out that someone had posted a fake Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her.  The picture was accompanied by unflattering commentary about the girl’s appearance along with sexually explicit references.  Through her father as guardian, the girl brought an application for an order requiring the Internet provider to disclose the identity of the person(s) who used the IP address to publish the profile so that she could identify potential defendants for an action in defamation suit.  As part of her application, she asked for permission to anonymously seek the identity of the creator of the profile and for a publication ban on the content of the profile.

Two media groups opposed the request for anonymity and the ban.  The Supreme Court of Nova Scotia granted the request that the Internet provider disclose the information about the publisher of the profile, but denied the request for anonymity and the publication ban because there was insufficient evidence of specific harm to the girl.  The judge stayed that part of his order requiring the Internet provider to disclose the publisher’s identity until either a successful appeal allowed the girl to proceed anonymously or until she filed a draft order which used her own and her father’s real names.

The Court of Appeal upheld the decision primarily on the ground that the girl had not discharged the onus of showing that there was evidence of harm to her which justified restricting access to the media.

Held:  The appeal should be allowed in part.

The critical importance of the open court principle and a free press has been tenaciously embedded in the jurisprudence.  In this case, however, there are interests that are sufficiently compelling to justify restricting such access: privacy and the protection of children from cyberbullying.

Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law and results in the protection of young people’s privacy rights based on age, not the sensitivity of the particular child.  In an application involving cyberbullying, there is no need for a child to demonstrate that he or she personally conforms to this legal paradigm.  The law attributes the heightened vulnerability based on chronology, not temperament.

While evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernable harm.  It is logical to infer that children can suffer harm through cyberbullying, given the psychological toxicity of the phenomenon.  Since children are entitled to protect themselves from bullying, cyber or otherwise, there is inevitable harm to them — and to the administration of justice — if they decline to take steps to protect themselves because of the risk of further harm from public disclosure.  Since common sense and the evidence show that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and since the right to protection will disappear for most children without the further protection of anonymity, the girl’s anonymous legal pursuit of the identity of her cyberbully should be allowed.

In Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, prohibiting identity disclosure was found to represent only minimal harm to press freedom.  The serious harm in failing to protect young victims of bullying through anonymity, as a result, outweighs this minimal harm.  But once the girl’s identity is protected through her right to proceed anonymously, there is little justification for a publication ban on the non‑identifying content of the profile.  If the non‑identifying information is made public, there is no harmful impact on the girl since the information cannot be connected to her.  The public’s right to open courts –and press freedom – therefore prevail with respect to the non‑identifying Facebook content.

– See more at: http://www.disinherited.com/blog/top-court-allows-plaintiff-teen-defamation-suit-remain-anonymous#sthash.xLVthPCy.dpuf