Family Laws and Estate Planning Laws May Clash

Family v estate laws clashingFamily Laws and Estate Planning Laws May Clash

The laws relating to family law and estate planning are intersecting and clashing more and more often.

Until recent years, an entirely different approach was taken by the “Probate Courts” and their estate related actions, and the “Domestic Relations” Courts and their vitriolic divorces.

They were separate and distinct  in their case law precedents and general attitudes, but no more.

The Ontario case of Makarchuk v Makarchuk 2011 ONSC 4633 ( Appeal to Court of Appeal dismissed January 23,2012, and leave to appeal to the SCC refused) two different approaches clash.

The Makarchuks were married for over 40 years and separated, but did not divorce in 2003.

 

They signed a separation agreement ion 2003 and the husband died  5 years later in 2008.

The last will of the deceased, a retired lawyer, was one he prepared himself and signed 5 months prior to signing the separation agreement.

The wife was appointed executor and sole beneficiary.

The separation agreement contained a release of all claims provision that stated inter alia:

” –the husband and the wife each release all rights which he or she has or may acquire under the laws of any jurisdiction in the estate of the other–”

The issue was whether the wife had released her entitlement to share as a beneficiary and executor of her late husband’s estate.

An adult son of the marriage said that the separation agreement “thrumped the will”, but the Courts disagreed and allowed the wife to inherit.

The Court found that the wording of the release in the separation agreement ,made only 5 months after the will, was not broad enough include rights acquired under the will- the release only speaks of “rights acquired under the law.”

Many clients and even some lawyers do not appreciate the legal distinction between a separation and divorce.

Under the provisions of the Divorce Act, s 16, had the parties being divorced the widow why would not have been allowed to inherit and would have been treated in law as if she had predeceased her husband.

Since they were merely divorced, and the provisions of the release in the separation agreement were not exact enough to preclude the widow from inheriting, the court concluded that the deceased had ample time to change his will had he wished to do so, and allowed his wife to inherit

– See more at: http://www.disinherited.com/blog/family-laws-and-estate-planning-laws-may-clash-makarchuk-case#sthash.2Cpo3hVd.dpuf

Botswana Courts Grant Women Inheritance Rights For First Time

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.

 

Top Court Allows Plaintiff Teen In Defamation Suit To Remain Anonymous

Anonymous Witness

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

Dysfunctional Families and Narcissistic Parents

Free Yourself From Narcissistic Parenting

I frequently encounter the disinherited victims of a deceased parent, and after a few minutes of questioning, it is easy for me to determine that the deceased likely suffered from a Narcissistic Personality Disorder, and the victim of narcissistic parenting.

 

A present client who has endured a great deal of suffering all her life due to narcissistic parenting, in this case, her uncaring father, forwarded me some passages about how to deal with this painful issue.

I am reproducing them today in the blog as I believe there is a good deal of need for this information.

I basically told my client to get over her father as he was one of the most self centred people I had ever heard about in 38 years of practicing law, and not worthy of her stress, depression and lost love.

 

Narcissistic Parenting: Take Back Your Life from Your Narcissistic Father

Narcissists cast dark shadows over our lives, especially when we are very young. Deep inside, instinctively,  we know that we must survive. Many of us go along not only to get along but to stay alive psychologically. Some young children in highly disturbed narcissistic families become hyper-vigilant – always surveying their environments for danger, threats, visceral feelings of being completely unsafe. Other children are less aware of the dynamics in the family on a conscious level. They distract themselves with activity, telling themselves that everything is all right. In our earliest years our minds normalize what we are experiencing. It is the rare person who as a small child knew that there was something fundamentally wrong, unjust, and highly disturbed about one or both of our parents.

Narcissistic fathers cannot parent. They are emotionally unavailable to their children. They go through the motions of interacting with them. They may give greater attention to a child whom they perceive will become a star, a standout in the family – this is another narcissistic supply for the father. He doesn’t care about the individuality of this son or daughter. He sees potential in them that can be nurtured and eventually will reflect  his greatness.The kids who don’t make the cut–the ones who are less attractive, (Blind / Deaf – CDD), highly sensitive, not socially skilled—-are set aside for neglect and constant ridicule. To the narcissistic father you are either his possession or you don’t exist. This man constantly appraises the value of his children to him. He sets unapproachable goals. Everyone must be at the top of the class or else. These fathers will take a son who has athletic capability and make them work out to the point of exhaustion and injury to fulfill their dream of having a son who is a professional athlete. Andre Agassi, the great tennis champion talks about his cruel narcissistic father’s forcing him from early childhood to practice hour after hour without let up. He didn’t care that his son hated tennis. Father prevailed. And yes, Agassi became a great champion but at a great price–years of abuse and agony.

There is an accumulation of truth about your narcissistic father. Some of his children recognize early that they are being used to prop up their father’s ego supplies and his grandiose self vision. Others identify with the father and spend their lives as his living servants. Those who wake up to the truth that the father is a merciless narcissist, sever this toxic relationship and begin the healing process of fulfilling their birthright of becoming a free separate individual. Some turn to professional psychotherapy and grieve for the real father they never had. There are other healing paths–meditation, hatha yoga, journaling, the forming of meaningful close relationships with individuals who care deeply about the real you. Those who go through this passage discover that they are finally free to lead their lives on their terms. They thrive, discover creative gifts that have been left dormant and gain confidence and inner peace by embracing their real selves.

Visit website: thenarcissistinyourlife.com
Linda Martinez-Lewi, Ph.D.
Book: Freeing Yourself from the Narcissist in Your Life
Email: lmlphd@thenarcissistinyourlife

 

Narcissistic Parenting Sabotages Children

By definition sabotage is a “treacherous action.” Treachery when perpetrated upon a family member means destruction and annihilation. It is beyond ruthlessness.

Growing up in a family that exhibits narcissistic parenting is like being in the middle of a deadly fire fight twenty four hours a day. The child who survives these skirmishes and all out wars is truly remarkable. I hear and read life stories of those who found survival techniques. Many of them hide in their own shoes, spent time with friends to keep out of the war zone, slipped their minds away into books, video games, drawing, writing, other creative activities. Some children were fortunate to have a grandparent who would give them times of respite.

Some children who have this experience are in a constant state of anxiety – fight or flight syndrome. The narcissist – mother or father or both rule the household. Screams and demands–slaps and threats can be heard and experienced frequently in these homes. The narcissist lives for himself (herself) alone. Narcissists don’t love their children. They use them to prop up their egos if they perceive that a particular child can add to their perfect image. In this case the child is indulged. The rest of the kids are cast aside and neglected or treated abysmally. Some of these children find ingenious ways to save their sense of self, to conceal their creative gifts but continue to use them and to keep the inner fire of a sense of self burning brightly. I have known individuals who have been able to accomplish this despite all of the narcissistic pathology of their mother or father or both parents.

Adult children continue to heal through skilled psychotherapy and many forms of bringing the body/mind back into balance: gentle yoga, meditation, support groups, full use of your creativity. You can heal. You will heal.

 

Everyone is Disposable, Even the Spouse and Children

Narcissists are incapable of sincere feelings and deep relationships. They are brilliant actors. You make believe, even if you have been married to a narcissist for a number of years, that this person loves you. The narcissist in incapable of loving anyone. This is not part of his psyche. He/she views human relationships as stepping stones that will enhance their image socially and professionally, impress the right people.(Bernice). They are vehicles that smooth their way toward goals they have been fixated most of their lives. Absolutely no one, not even their spouses or children is permitted to create obstacles as they climb professionally, creating greater influence and connecting with the right people. When push comes to shove the narcissist is compelled due his dark motivations to manipulate and exploit those closest to them. Narcissists often substitute one family for another. It isn’t unusual for them to start with a beginning family. When they discover that their spouse and children are not capable of heightening their prestige and power reach, they abandon entire families. They have absolutely no guilt about these cruel, psychologically devastating decisions and their painful consequences.

Narcissists shift quickly to the next phase of their climb toward their targeted summit by seeking a second marriage that will bring them the connections and access to which they are entitled. This time they make sure that the new spouse has any number of a combination of qualifications. She could be a prominent medical specialist who is part of an auspicious social circle. Marrying into a prominent well established family is a tried and true route. Once accepted by this new family the narcissist digs in to eventually control its key members To solidify the union, they often have children with the new spouse to become indispensable to their newly created nuclear family and extended families.

The previous spouse and children have long been forgotten. The narcissist acts as if they never existed. Often he refuses to provide alimony and child support and uses the manipulations of the court system to avoid his legal and moral obligations. The narcissist views all of this like an annoyance, something he uses his handpicked attorneys to distance himself from the past. For the narcissist it doesn’t exist.

Narcissists are ultimate opportunists and exploiters so it isn’t surprising that some of them jump from one relationship or marriage to another, always looking for the fulfillment of their grandiose visions.

To learn about the narcissistic personality in-depth and to protect yourself from his/her tactics, study this fixed personality disorder which does not change. You deserve to be a part of genuine loving relationships built on trust, deep love and respect.

Further reading on Narcissistic Parenting

Cutting Ties with the Family and Estrangement

How to Survive a Narcissistic or Abusive Family

Aggressive Narcissism – There is Only Win or Lose

Identities of Innocent May Be Protected

BC Appeal Court in 1985 Rules Names of Innocent May Be Protected

Hirt v College of Physicians and Surgeons ( British Columbia) BCCA ( 1985) 3 WWR 350 was one of the first BC appeal court decisions, if not the first, to hold that the infringement of the right of the public to freedom of expression is justified where publicizing the identities of innocent parties will accomplish nothing and the rights of those innocent will be protected.

The respondent, the College of Physicians and Surgeons of British Columbia (the “college”), removed the appellant Dr. H.’s name from the medical register after holding an in camera hearing in which detailed evidence was heard respecting the sexual relations of Dr. H. and several of his patients, including Dr. Jane Doe, an intervenor in these proceedings, as well as the sexual relations of those patients with others.

Dr. H. appealed this decision. Dr. Doe sought an order in chambers to seal the file and to permit the use of pseudonyms and other devices to protect the true identity of the complainants and others.

Dr. Doe appealed from the decision of the chambers judge dismissing her application.

The Appeal was allowed.

Although public accessibility to the courts and to court records is needed so that society can be assured that justice has been done, reasonable limitations to that principle have been recognized for many years in free and democratic so­cieties.

It is demonstrably justifiable in a free and democratic society that the openness rule be restricted to protect the innocent when, as in this case, nothing would be accomplished by publicizing the identities of the complainants or their sexual partners.

The right of the public to be satisfied that justice has been done in a fair and public hearing by an independent tribunal would be assured as the full record of evidence — except as to the identities of the complainants and others — would be available and the hearing would be in open court.

The full transcript would be sealed and available to the appeal judge; the file transcript would delete the identities of the complainants and others and any information which could disclose those identities.

Counsel could use pseudonyms in memoranda and argument unless the hearing judge deemed necessary to do otherwise to ensure a fair hearing.

Mom Always Liked You Best

mom likes you best

It still cracks me up to visualize the cover of 1965 Smothers Brothers 8th comedy album ” Mom Always Liked You Best.”

The cover photograph shows Dick surrounded by a dog, a wagon, a scooter and many other toys while Tom is sitting there with just his chicken.

disinherited.com has a vehicle with this expression on the trunk, only changed to “Mom Always Loved You Best” just to inflame the sibling rivalry situation a bit more. It invariably is noticed by many a driver behind  observed laughing  in the mirror.

It is a universal human need to seek parental approval and love -lasting even to some’s death beds, with many more making it into an estate litigators office after the last parent passes away.

Sibling rivalry can be an enormous factor on ones emotional health and happiness in life, let alone bitter rivals in estate disputes over the parents assets.

On some subliminal level, parental assets equate to parental love, and siblings typically hate to see one get more than the other.

Studies show that  children are sensitive from the age of one year to differences in parental treatment.

From 18 months on siblings can understand family rules and know how to comfort and be kind to each other.

By 3 years years old, children have a sophisticated grasp of social rules, can evaluate themselves in relation to their siblings, and know how to adapt to circumstances within the family.

The problem occurs when the rivalry often continues not just throughout childhood , but into adulthood .

Sibling relationships can change dramatically for better or worse  over the years.

While events such as a parent’s illness may bring siblings closer together, a  marriage may drive them apart, particularly if the in-law relationship is strained.

Approximately one-third of adults describe their relationship with siblings as rivalrous or distant.

However, rivalry often lessens over time with  80 percent of siblings over age 60 reporting they  enjoy close ties.

Stieg Larsson Tragic Legacy Would Not Occur Under BC Estate Laws

Many of us have now heard the story about how the author of the famous trilogy, (” The Girl With the Dragon Tattoo”)  suddenly died prior his publication and financial success.

The truly shocking part of the story is that his common-law spouse of 32 years did not inherit his estate, which instead went to his two biological relatives being his father and younger brother.

This would not occur in British Columbia under the provisions of the Estate Administration act under which his entire estate would have gone to his surviving spouse, Ms. Gabrielsson.

This excerpt is taken from a recent  newspaper article on the subject :

 

“Blood Trumps Love

 

Gabrielsson and Larsson weren’t just a couple, but also a leftist action group. First they were Maoists and then Trotskyists, voicing their criticism of the Swedish welfare state from a leftist point of view. She was an architect, while he worked for a news agency. They managed to make ends meet, and had no children. Like many Swedes of their generation, they were anti-bourgeois.

In their social circle, while couples may have been monogamous, they didn’t marry. But under Swedish law, a member of an unmarried couple doesn’t inherit anything from his or her deceased partner, no matter how long the couple was together. Blood trumps love, unless a will exists, but Larsson hadn’t written one. For that reason, the rapidly growing proceeds from the sale of the books and the film rights went to two biological relatives, Larsson’s father Erland (his mother Vivianne is dead) and his younger brother Joakim. “The money went to us, but we didn’t ask for it,” says Erland Larsson, 76. They could have turned down the inheritance, but that wasn’t what they wanted.

The father and the brother still live in northern Sweden, in a city called Umea. The father occasionally visited his son in Stockholm and tried to convince him to get married, but the son only laughed at his father’s suggestion. The brothers, Stieg and Joakim, were not close and rarely saw each other.

After Larsson’s death, when his novels suddenly became such a huge success, the widow who isn’t a widow under the law sat down with Erland and Joakim Larsson to discuss what should happen next. An agreement seemed possible. But then attorneys took over the case, and an inheritance war ensued — one in which the Stieg Larsson fan community has participated extensively.

Two camps have since formed in Sweden: the (primarily female) Eva camp, with its own website (www.supporteva.com), and the (primarily male) Larsson camp (www.moggliden.com).”

disinherited.com is actually surprised that the matter has developed into two antagonistic groups.

To disinherited.com it would appear that the supposedly more equitable and modern  socialist state that Sweden purported to have , complete with paternal child care, has an incredible gaping hole in its  estate laws when it comes to the complete lack of inheritance rights by long time common-law spouses.

Thankfully this would no longer occur in British Columbia

– See more at: http://www.disinherited.com/blog/stieg-larssons-tragic-legacy-would-not-occur-under-bc-estate-laws#sthash.SHZCSJ6b.dpuf

Body Snatching Has A Long History

American news this week reported that a woman’s body had been stolen from her grave 16 years after she had been laid to rest in a New Jersey cemetery.

She had been 98 when she had been entombed inside a family mausoleum alongside four other family members.

The extensive mausoleum had been accessed by people who came with the necessary tools and intent to break in.

Whereas family members and the public at large were dumbfounded as to what had occurred, there had been many similar incidents in 2006 when the CEO of a New Jersey human tissue recovery firm, and head of a large body snatching ring was arrested.

He and his employees had netted millions of dollars illegally harvesting human bones, organs, tissue another cadaver parts from more than 1000 individuals awaiting cremation.

In fact there is a long history of body snatching largely throughout the world, including Canada until it was abolished by legislation, which initially was the Anatomy Act of 1832 in England.

Prior to that it was very common for grave robbers/body snatchers to dig up the remains of the deceased, primarily for the sale of the human remains for anatomy studies.

A famous incident occurred in Québec during the Montréal winter of 1875 when a typhoid fever struck at a convent school.

The corpses of the victims were stolen  by body snatchers before relatives arrived causing an international scandal.

The Anatomy Act of Québec was shortly thereafter brought into effect.

Prior to the introduction of this legislation the only legal supply of corpses for anatomical purposes where those condemned to death by the courts. There was always a substantial shortage of corpses for medical purposes.

It must also be remembered that this was prior to the supply of refrigeration and bodies would decay rapidly and become unusable for study.

Historically the body snatchers were not severely punished as it was treated as a misdemeanour.

The robbers would be careful not to steal items of value such as jewelry from the tomb, as that was a far more serious offense that was often punishable by death.

“Reading of the Will” Only takes Place in Movies and Cartoons

reading the will

We have all seen movies, television shows, and cartoons that depict anxiety ridden prospective beneficiaries typically gathered in a dark paneled lawyer’s office for the so-called “reading of the will”, usually by the lawyer.

In 38 years of practice, disinherited.com has  done this once, and only by inadvertence when a throng of people descended upon the office and demanded to have the will read.

One of the persons was in fact the executor and he did in fact authorize the will to be  read  in the presence of the possible beneficiaries.

There were no fistfights, death threats, or any other memorable behavior that I recall. It was matter of fact.

The scenario makes for good theatre,but in reality it simply does not occur.

Typically what does occur is that the executor very quietly locates the original will.

In British Columbia a will searches is  required before probate can be granted, and that may or may not determine the location of the last will and testament, as the registration process is voluntary and not always complied with.

In British Columbia the executor must provide a copy of the will to all parties named in the will, as well as any person or persons who might be entitled to share in the estate on an intestacy.

This only occurs if the executor moves to probate the will through the Supreme Court registry, and that typically only occurs if there are assets over $25,000 solely in the name of the deceased, that require a grant of probate in order to be transferred into the names of the named beneficiaries.

There does seem to be a large sense of entitlement on the public as a whole to feel entitled to know what is in a person’s will, or to receive a copy of the will almost before rigor mortis sets in on the deceased.

It could be that the movies and cartoons that depict  the readings of the will contribute to this sense of entitlement,  and such people are often disappointed to learn that they are not is entitled uner the law, as they think.

Steven Covey RIP- The 7 Habits of Highly Effective People

It may be slightly off the mark for an estate litigation blog to write about the passing of Steven Covey, but it remains that his thought provoking ideas about how one ought to approach work ,and life in general, to become a highly effective person, are something we can all benefit from.

This may especially be the case for those going through the stress of estate litigation.

 

A summary of the 7 principles are as follows, which of course trivialize what Covey put into three books, but it is simply a tribute of his great work:

 

The following was copied from Wikpedia:

Independence or Self-Mastery

The First Three Habits surround moving from dinosaurs to independence day (i.e., self mastery):

  • Habit 1: Be Proactive

Take initiative in life by realizing that your decisions (and how they align with life’s principles) are the primary determining factor for effectiveness in your life. Take responsibility for your choices and the consequences that follow.

  • Habit 2: Begin with the End in Mind

Self-discover and clarify your deeply important character values and life goals. Envision the ideal characteristics for each of your various roles and relationships in life. Create a mission statement.

  • Habit 3: Put First Things First

Prioritise, plan, and execute your week’s tasks based on importance rather than urgency. Evaluate whether your efforts exemplify your desired character values, propel you toward goals, and enrich the roles and relationships that were elaborated in Habit 2.

 

Interdependence

The next three have to do with Interdependence (i.e., working with others):

  • Habit 4: Think Win-Win

Genuinely strive for mutually beneficial solutions or agreements in your relationships. Value and respect people by understanding a “win” for all is ultimately a better long-term resolution than if only one person in the situation had gotten his way.

  • Habit 5: Seek First to Understand, Then to be Understood

Use empathic listening to be genuinely influenced by a person, which compels them to reciprocate the listening and take an open mind to being influenced by you. This creates an atmosphere of caring, respect, and positive problem solving.

  • Habit 6: Synergize

Combine the strengths of people through positive teamwork, so as to achieve goals no one person could have done alone. Get the best performance out of a group of people through encouraging meaningful contribution, and modeling inspirational and supportive leadership.

 

Self Renewal

The Last habit relates to self-rejuvenation:

  • Habit 7: Sharpen the Saw

Balance and renew your resources, energy, and health to create a sustainable, long-term, effective lifestyle. It primarily emphasizes on exercise for physical renewal, prayer (meditation, yoga, etc.) and good reading for mental renewal. It also mentions service to the society for spiritual renewal.