O'Sullivan Estate Lawyers LLP
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Thought Leadership Archives

The Rule Against Perpetuities: A Dying Relic 

The Rule Against Perpetuities (the "Rule") is an old and complex legal rule that aims to prevent the delay of vesting of many types of transferred property interests beyond the "Perpetuities Period" and is the bane of many lawyers who draft wills and trusts. A property interest vests when it is absolute and cannot be defeated. There are many ways to transfer property interests, including under a will or through a trust.

Misuse and Abuse of Powers of Attorney - Why Law Reform is Necessary

Having a power of attorney for property is a document we continually recommend to clients who are in the process of updating their estate plans. The purpose of a power of attorney for property is to give a named individual (the "attorney") the authority to act on behalf of the person executing the document (the "grantor") and make decisions with respect to their financial affairs. Under Ontario law, a continuing power of attorney can be used after the donor is incapable of managing their financial affairs and can be revoked at any time as long as the grantor is mentally capable.

Going Paperless: Electronic Wills

The increasing pace of technological change is our reality, and when it comes to estate planning, there is no exception.The traditional formalities for wills and powers of attorney are stricter than for most legal documents: for example in Ontario a will has to be in writing and signed at the end by the will maker in the presence of two witnesses, who each in turn sign the will in the presence of the will maker and each other. The same process must be followed for an Ontario power of attorney for property and for personal care. The objective is to prevent fraud and help ensure the document reflects the testator's free will - after all he or she will not be around if an issue later arises with regard to the validity of the document. Holograph wills - those which are all in the will maker's handwriting and signed by the will maker at the end are also permitted in Ontario, as well as in many other jurisdictions.

Medically Assisted Dying in Canada - An Update

In April 2017, the CBC reported that over 1,300 people in Canada have died with medical assistance since the Criminal Code was amended in 2016 to legalize medical assistance in dying ("MAID"). While this statistic points to the importance of MAID for many Canadians, the new legislation has not settled the ongoing debate concerning the right to die. Recent litigation on various fronts has highlighted continuing controversies, including questions about the role of medical professionals in MAID, limitations on who will have access to medically assisted dying, and ambiguity in the criteria for access.

Best Interest - Conflict of Interest: The Provision of Financial Advisory and Financial Planning Services

As we look forward in our crystal ball to looming issues on the horizon for 2017, one that certainly comes to the fore is the regulation of those who provide financial advice and financial planning services, often offered under the nomenclature of "estate planning" or "retirement planning" advice.

Ethos for an Aging Society

It is quite remarkable to think that notwithstanding our increasingly aging demographic,1 the recognition of the rights of older persons as a distinct group has been largely absent in the field of human rights. Only recently the rights of older persons as a distinct group have begun to emerge and slowly become reflected in legal thinking and legislative change. There is increasing movement towards creating a United Nations international declaration or convention on the rights of older persons as older persons' rights have not generally been expressly recognized at the international level. One of the objectives for creating an international convention is to provide a concrete overarching legal framework for use by government around the world, including by guiding policy-making in order to address the distinctive human rights issues faced by older persons.

Zen and the Art of Estate Plan Maintenance

You may remember the bestseller Zen and the Art of Motorcycle Maintenance which explores many themes, including the dichotomy between the "romantic" approach to life versus the "classical" approach--in the moment versus rational analysis--and the common ground linking them. The sense of mastery and peace of mind that comes with the author's ability to maintain his older, classic motorcycle versus his friend's lack of interest in understanding how to maintain his expensive new one and his resulting frustration when it breaks down, forcing him to rely on professionals to repair it, are key themes.

Canada, the U.S. and Going Borderless: Nowhere to Hide

Perspective is important and illuminating--only about fifteen years ago, or perhaps even less, it was not common to have to consider the impact our Canadian and U.S. tax and legal regimes have on estate planning and our affairs in general. The 49th parallel and the world's longest undefended border symbolized separate tax and legal regimes, and there was little recognition of the need to consider the impact of the laws on either side of it, notwithstanding many Canadians living south of it and many U.S. citizens living north of it.

We are a top-ranked and peer recognized firm, including Margaret O’Sullivan by Chambers Canada Guide 2017 and Chambers Canada High Net Worth 2017 as one of the top six private client lawyers in Canada:

  • Top Ranked Canada Chambers 2017 Margaret O'Sullivan
  • Best Lawyers Award Badge
  • Best Lawyers Award Badge
  • Canadian Legal Lexpert Directory
  • The Law Reviews | Expert Panel 2015
  • Step | Canada | Advising Families Across Generations
  • Top Ranked HNW Chambers 2017 Margaret O'Sullivan
  • Recognised in WHO'S WHO LEGAL | WWL
  • Recognised in WHO'S WHO LEGAL | WWL | Canada 2017
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