Ameena Sultan

California Class Action Addresses Treatment Decision Making

Posted on May 7, 2012 by Ameena Sultan

A class action has been commenced against a California nursing home for treating residents with antipsychotic medications without the proper consent.

The law in California requires nursing homes to ensure that consent for treatment has been received from the patient or a family member.

The lead plaintiff is Kathi Levine, daughter of Patricia Thomas. Mrs. Thomas, who had Alzheimer’s disease was treated with medications including Zoloft, Ativan and Haldol without her daughter’s knowledge or consent. Mrs. Thomas died a few months later and the drugs have been implicated in her death.

The lawsuit makes serious allegations, including the falsification of records. The case raises the issue of how doctors ensure that the law is complied with and that proper consent has been obtained for treatment.

AARP (the American Association for Retired Persons) has joined the lawsuit and will provide lawyers as co-counsel in the action.

This class action is unique in that it addresses treatment consent for incapable persons and seeks liability for failure to abide by legal requirements for consent. Undoubtedly its outcome will be carefully watched, not only by lawyers and lawmakers, but by physicians and others who care for older and incapable persons.

Click here to read the Ventura County Star article.

Posted in In the Media

The Economist on Digital Assets and Estates: A Global Issue

Posted on May 1, 2012 by Ameena Sultan

In its April 21, 2012 issue, the Economist addressed the topic of what happens to digital property when its owner dies. Not only does the question concern email and Facebook accounts which were addressed in an earlier blog posting, but also virtual assets such as software that have a quantifiable value.

Interestingly, this is an issue with global reach, well beyond North America. In China, a local survey found that 20% of respondents owned digital property with a value in excess of $790. In India, a hub of technological development, the courts have already seen cases of wills that comprise digital estates.

The law, here and abroad, is unclear on whether executors can access, or beneficiaries can inherit, digital assets. The matter is further complicated by the fact that rights of access may also clash with providers’ privacy policies.

This issue has given rise to a nascent digital estate planning industry. One company, Entrustet, offers clients password protection and methods to deal with digital accounts on clients’ passing. The company also offers a list of “Digital Estate Planning Experts”, who are lawyers qualified to deal with digital assets. As this is a novel area of law, but one that affects many people, it will undoubtedly be one that estate planners, litigators and the courts are increasingly required to address.

Click here to read the Economist article
Click here to read about Entrustet

Posted in In the Media

Rompsen Investment Corp. v. 617666 Canada Ltee: Time for the Courts to Catch Up?

Posted on April 19, 2012 by Ameena Sultan

As part of reasons in a motion to approve the sale of a condominium property, Justice Brown of the Superior Court of Justice used the opportunity to scold the Court`s “antiquated, wholly inadequate document management system”.

Justice Brown reiterated a specific incident of that day when documents that were required for a motion were not in the file before His Honour, and had to be sought out physically from the Court office as well as from counsel’s office, despite the fact that they had previously been filed with the Court. The documents were ultimately located and used in the motion, but the delay meant increased legal costs for the litigants.

The time has come, Justice Brown wrote, for the Court’s paper-based system to be replaced with a more efficient electronic system:

The real solution? Consign our paper-based document management system to the scrap heap of history and equip this Court with a modern, electronic document system.

The matter is serious, and the current systems for document management and scheduling, are a “scandal”, he wrote. The present “poor excuse of a system which currently is employed should be subject to relentless criticism – judicial and otherwise – until it is discarded and the people of this province are provided by the provincial government with a court administration system of a quality which they deserve.”

Interestingly, Justice Brown’s decision comes just after the Estates Division of the Superior Court of Justice discontinued an electronic scheduling system that had significantly streamlined the scheduling process.

Justice Brown’s words are harsh, however as a judge he is best-placed to highlight the seriousness of the problem and emphasize the importance of a court system that is well-managed and responsive to its users and the public at large.

To read the Reasons for Decision, please click here:
Romspen Investment Corp. v. 6176666 Canada Ltée., 2012 ONSC 1727 (CanLII)

Posted in Case Commentary

CBC News: Federal Government Proposes Tougher Penalties for Elder Abuse

Posted on March 16, 2012 by Ameena Sultan

On March 15, 2012, Justice Minister Rob Nicholson and Seniors Minister Alice Wong announced that the federal government will propose changes to the Criminal Code that would make sentencing tougher for those convicted of elder abuse. The changes to the Criminal Code would resemble those that provide for stricter sentencing for other vulnerable individuals such as minors.

The bill proposed by the Conservative government will likely be backed by the NDP, as both parties had campaigned on a platform of addressing elder abuse.

Susan Eng, Vice-President of Advocacy for CARP, a seniors’ advocacy organization lauded the changes as an important step in fighting elder abuse.

Click here to read the CBC story on the proposed amendments.

Posted in In the Media

Supreme Court Denies Leave to Appeal in Two Significant Estates Decisions

Posted on March 6, 2012 by Ameena Sultan

On February 23, 2012, the Supreme Court denied leave with costs on the following two Estates decisions.

Richard Rondel v. Kelly Anne Robinson

On July 14, 2011, we blogged the Court of Appeal’s decision in Rondel v. Robinson Estate, 2011 ONCA 493 (CanLII). In that decision, the Court of Appeal had upheld the application judge’s finding that extrinsic evidence is inadmissible and that the intentions of a Deceased can only be gleaned from the words found in the Will.

The Superior Court and Court of Appeal’s decision showed a marked departure from previous Superior Court of Justice rulings that had allowed the admission of direct extrinsic evidence of a testator’s intention in Will rectification and interpretation proceedings.

The Court of Appeal’s decision was unequivocal in its exclusion of extrinsic evidence. At the conclusion of the decision, Juriansz, J.A. wrote for the Court of Appeal: “In my view, there is no question about the good sense of the common law rule excluding direct extrinsic evidence of a testator’s intent” stands.

It will be interesting to see if, in spite of the Court of Appeal’s strong statement on the inadmissibility of extrinsic evidence in Will rectification and interpretation cases, whether counsel will continue to press and test the issue and whether they will have any success in that regard.

Click here to read our July 14, 2011 blog on Rondel v. Robinson Estate, 2011 ONCA 493 (CanLII)

Nancy-Gay Rotstein et al. v. Lawrence Jerome Berk Smith, Executor and Trustee of the Estate of Ruth Dorothea Smith

On July 20, 2011, we blogged about the Court of Appeal’s decision in Smith Estate v. Rotstein, 2011 ONCA 491 (CanLII).

In that decision, Nancy-Gay Rotstein had appealed the Superior Court of Justice’s decision granting summary judgment to Ms. Rotstein’s brother, Lawrence Smith, as well as the costs awarded against her in that matter. Justice Brown of the Superior Court of Justice, in granting summary judgment had ruled that Ms. Rotstein’s conduct was “reprehensible” and that she had “engaged in baseless, hugely expensive, scorched earth litigation over the validity of a will.” Accordingly, Justice Brown had ordered full indemnity costs against Ms. Rotstein in the amount of $707,173.00.

The Court of Appeal upheld the Superior Court ruling on summary judgment.

On costs, the Court of Appeal upheld the award on a full indemnity scale but directed the motion judge the reassess the quantum of fees payable.

Armstrong J.A. noted that Ms. Rotstein was the “author of her own misfortune.”

The Supreme Court’s denial of leave means the decision on summary judgment stands, as does the principle that, even in Estate matters, a party’s combative and reprehensible conduct can invite an elevated costs award.

Click here to read our July 20, 2011 blog on Smith Estate v. Rotstein, 2011 ONCA 491 (CanLII)

Click here to see the Supreme Court of Canada News Release dated February 23, 2012

Posted in Case Commentary | Tagged

Paper: Consent and Capacity Issues in Estate Planning and Litigation, OBA Institue 2012

Posted on February 21, 2012 by Ameena Sultan

Ameena Sultan and Lonny Rosen of Rosen Sunshine LLP presented a paper “Consent and Capacity Issues in Estate Planning and Litigation” at the Ontario Bar Association INSTITUTE 2012 TRUSTS AND ESTATES LAW, on February 9, 2012, at the Westin Harbour Castle Conference Center in Toronto

Click to download Ameena and Lonny’s paper “Consent and Capacity Issues in Estate Planning and Litigation” (PDF, 35 pages)

Posted in Articles & Presentations