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Probate process refers to the amount of time required to settle a decedent’s estate. The timeframe will vary depending on the type of estate planning strategies decedents implemented prior to death, as well as the estate value and type of inheritance property.

The probate process will take longer when decedents die intestate (without leaving a Will) or if heirs fight over inheritance property or contest the validity of the Will. Probate is required within every U.S. state. The only way to avoid the process altogether is to protect inheritance by transferring assets to a trust.

Probate begins when the decedent’s last will is submitted to the court. Intestate estates are opened by submitting the decedent’s death certificate. Once the Will or death certificate is presented, information pertaining to the estate becomes a matter of public record. With trusts, estate information remains confidential and the only people allowed to view the Will are heirs and beneficiaries entitled to inheritance assets.

The second step of probate involves confirming or appointing an estate administrator. The administrator is designated within the last Will. Some states require court confirmation, while others allow Administrators to manage the estate without court interference.

When no Will exists, a judge must appoint an executor to settle the estate. Most often this is the surviving spouse or direct lineage relative. However, estate executors can be a family friend, estate planner, or probate lawyer.

Estate administration duties can encompass everything from making funeral arrangements to selling inheritance property to pay outstanding debts. At minimum, probate administrators must inventory inheritance assets and obtain property appraisals; pay creditor and tax debts; oversee distribution of inheritance property; and prepare a final tax return on behalf of the decedent.

When decedents hold financial portfolios, retirement accounts, or checking and savings accounts, probate executors must obtain date-of-death values from the financial institution where funds are held. The values are submitted to the county tax assessor office. As long as decedents are current on taxes, the forms are stamped and returned to the bank. Funds are distributed to beneficiaries within 5 to 7 business days after receipt of stamped tax forms.

In the case of intestate estates, the Administrator is responsible for locating missing heirs. State probate laws generally give inheritance to direct lineage heirs including mother, father, siblings, or children. If the heir is believed to be alive, but cannot be found, inheritance property is placed in escheat until the period of redemption expires. If heirs do not claim their inheritance it can be transferred to the state.

Estate executors are responsible for contacting creditors and paying outstanding debts owed by the decedent. If the estate is financially incapable of paying debts, the Administrator can enter into negotiations or hire a lawyer to negotiate on behalf of the estate. Legal fees are the responsibility of the decedent’s estate.

A final tax return must be prepared and submitted to the Internal Revenue Service within nine months from the date of death. The decedent’s estate is responsible for paying outstanding taxes. Full payment must be submitted at the time the return is filed. Otherwise, the IRS will assess late fees, penalties, and interest. Taxes must be paid in full before inheritance property can be distributed.

The final phase of the probate process involves distributing inheritance property. Heirs and beneficiaries must sign a statement regarding the assets received. Once inheritance statements are presented to the court, the estate executor is relieved of estate management duties.

Read more: http://www.articlesbase.com/national-state-local-articles/overview-of-probate-process-and-estate-administration-duties-3187174.html#ixzz0yPlFAAsN
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The reason it has a reputation for being so dull is because, a court reporter must turn out page after page of legal jargon, but what they don’t consider is that the reporter is a first hand witness to some exciting and dramatic court room drama.

What Qualifications Do You Need To Be Able Offer A Court Reporting Service?

In order to be a certified reporter, an individual has to pass the State Licensure Exams which is executed by a panel of court reporting specialists. He or she may be a member of either the National Verbatim Reporters Association (NVRA) or the National Court Reporters Association (NCRA). To become eligible to be a member of the NVRA you will have to be able to type 250 words per minute, and to qualify as a member for the NCRA the minimum requirement is 225 words a minute.

For additional improving of abilities in the reporting field, they are obligated to undergo quite a few tests like writing, transcriptions examinations, and speed tests categories like Certified Verbatim Reporter (CVR) or Real Time Verbatim Reporter (RVR).

Court reporting services

Aside from documenting and transcribing the depositions and litigation in court, a court transcriptionist ought to offer various services:

A good quality transcript or report of all the occurrences that happened in the courtroom. The stenographer should preferably write in flawless grammar with the proper spelling and punctuations. For that reason, the court reporter should have an outstanding knowledge of the spoken and written language.

A quality litigation reporter would certainly also know the fundamental facts of the case they are reporting on. This is so that they can completely understand the proceedings amongst the lawyers, Judge, Defendant, Plaintiff and the Jury, and what charges or complaint is against the accused. This can also help the reporter to keep themselves updated on all of the jargon, and they might be able to predict what could be said in future proceedings.

Read more: http://www.articlesbase.com/law-articles/what-you-should-know-about-court-reporter-services-3173176.html#ixzz0yFQSDyLc
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In a survey conducted by the ABA Coalition for Justice, 1,200 state trial judges have revealed some surprising facts about litigants who handle legal matters on their own. Though the number of people who have chosen to represent themselves has risen, the survey shows that it may not be a great idea to do so.

While we all are acutely aware of the effects the economic downturn has had, it is still interesting to see the impact it is having on individuals. In an effort to save money, many people are choosing to represent themselves in foreclosures, domestic relations, consumer issues, and non-foreclosure housing matters, among others. The results? The judges who were surveyed revealed that the people who choose to represent themselves aren’t doing a great job and are, thusly, creating more work for an already burdened court system.

Over 60% of the judges imparted through the survey that representing yourself in court will typically lead to a bad outcome for the litigant.

This survey supports a statement that I make often: Don’t decide to file bankruptcy on your own unless you’ve seriously considered the consequences. Filing bankruptcy is no easy task. It requires you to handle important documents, negotiate with the trustee, and take care of any obstacles that will inevitably pop up. Am I saying it is impossible to file bankruptcy by yourself? No. I am, however, telling you that it is a huge task to take on and you should evaluate the consequences carefully.

Remember: Filing on your own doesn’t always mean you’ll save money—and it certainly doesn’t save you any time. By making one easy mistake, you put yourself and your family at risk of not receiving a discharge. That means you could’ve done all that work and spent all that money only to not receive a discharge.

The best way to get a great outcome for your case is to do the proper research, evaluate your situation, and choose the pathway that will give you the best outcome, not the one that will cost you the least amount of money.

Am I saying that it is always better to file with a lawyer than to file a bankruptcy case on your own? Not necessarily. To have the best bankruptcy experience possible, you must choose a qualified, experienced bankruptcy attorney. If you end up picking an attorney because of a low price or one that has limited experience, you could be putting yourself in just as dangerous a position as if you’d filed on your own.

If you are struggling with this decision, make sure you fully research all of your options and think about what risks you are willing to take. See what reputable attorneys have to offer in terms of free information. You will probably find blogs, bankruptcy FAQ, and possibly even free publications that will point you in the right direction.

Read more: http://www.articlesbase.com/law-articles/new-survey-shows-filing-bankruptcy-on-your-own-could-be-a-detriment-3111780.html#ixzz0xSsPIgu0
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Manga are far more respected in Japan than our produced works. They are read by all demographics and are viewed as an art-form like any other. It is visual storytelling, using panels of pictures with speech and sound effects.

Battle Angel Alita, volume 1, was published back in 1991. After writer-director James Cameron finishes his magnum opus, Avatar, he will turn his attention to adapting to the silver screen this wonderful sci-fi action-adventure. When reading this manga note that, although translated into English, the book is “printed in the original Japanese format in order to preserve the orientation of the original artwork”. So you read right to left, back to front.

Right from the awesome image of a robotic woman with angel wings on pages two and three, we are thrust into the world far, far into the future. This is a future where cities float in the sky, and shift in their moorings to the ground according to the moon. Like much manga and anime, technology has advanced exponentially to almost unrecognisability, and there is an exploration of the nature of humanity. Here the relationship between human and machinery has blurred. Artificial intelligence exists, where robots are just as sophisticated as nature. Humans are revived and augmented and are now cyborgs happily living (though the health-care system is only for the wealthy). The influence of writers Philip K. Dick (Do Androids Dream of Electric Sheep? aka Blade Runner) and Isaac Asimov (I, Robot) are felt.

Volume 1 focuses on the scrapyard city below the floating utopia of Tiphares. Those that have not, it seems, live below Tiphares. Environmental damage that has been on the forefront of many minds in Japan currently has taken root, and this scrapyard city is a sea of neon and metal, with no signs of vegetation or birds or animals (except dogs). I wonder if that is the reason why this manga is drawn in shades of black and white, without any colours – which potentially represent nature, as well as hope?

While the environment has apparently suffered, on the other hand scientific knowledge has grown. There is a mechanics genius whose shop sign reads: “Daisuke Ido, Mechanic • Cyborgs • Androids • Robots • Repairs of all kinds, Tuning & Maintenance Cybernetic Repair Workstation”

A main Character Mad-haired Dr Daisuke occasionally wanders into the mountain of scrap looking for robotic elements to build from. He comes across the head of a robotic girl, with a neck and part of her torso still attached. She is 200 or 300 years old but her brain is intact and he manages to revive her, and then constructs a body for her. She is without memory and so Daisuke names her after his dead male cat, Alita, until she remembers her given name.

The police no longer exist. Instead ‘Factories’, administrative centres, register bounty hunters who catch criminals for a fee. Like much Japanese originated sci-fi, there has been a societal breakdown. Fearsome criminals now roam the streets. Daisuke, is not only a scientist, but one of these vigilantes, who captures criminals “for the rush” – showing that not all computer whizzes are nerds.

Alita follows him one night and is forced to help him. In protecting him she unleashes and unknowingly unveils her gifts as a fighter and decides to become a bounty hunter herself while she learns who she really is. This theme can be seen also in James Cameron’s post-apocalyptic television show, Dark Angel, where a genetically modified woman (Jessica Alba) fights for good while on her own journey of self-discovery. This society is not in good shape, what with vampire serial killers, and drug-addicted cyborg murderers. This latter killer is in fact a nutty Nietzsche-spouting snake-borg, Makaku, who eats the brains of humans and dogs to get their natural endorphin chemicals. Daisuke is right, when he says, “Damn, he’s scary!” So bounty hunters Alita and Daisuke lock horns with Makaku in a grand, brutal struggle.

There is plenty of action, though it unfortunately can be a bit confusingly portrayed at times; while the violence is tempered by the imagination on display and the lack of colour.

Battle Angel Alita is a grapically amazing comic book with a heart, and a gripping mystery story at its core. I rate this 4 stars

“There’s nothing in this world of value…nothing worth risking our lives for…except, perhaps…what little we can create ourselves. Without you Alita my life has no value,” says Daisuke. A reference perhaps, to not only children, but to also art, and job satisfaction?

Read more: http://www.articlesbase.com/music-articles/rusty-angel-battle-angel-volume-01-review-3062351.html#ixzz0wu6I2PQ4
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Cyclists are frequently demonised by pedestrians and motorists because of the behaviour of a few, who ride as though there are no legal restrictions upon them. Because of this it seems that motorists give little regard to the safety of cyclists and it is rare for the courts to decide that an accident wasn’t partially or entirely the fault of the motorist. This is good news for cyclists as the injuries suffered are often severe with even the most minor of falls leading to painful and disabling injuries

If you are knocked from your bike there are a number of things you can do to increase your chances of bringing a successful claim.

* The first thing to do is to make sure that you have all the details of the driver of the vehicle that caused the accident; this includes their name, address and telephone number. At the very least get their vehicle registration number as their insurers can be traced through their VRN.
* Get yourself medically examined; this can mean going to see your doctor or more often than not you will be better off going to your local A&E or medical walk-in centre. You should do this for two reasons:
o To make sure that you have not sustained any serious injuries
o So that there is a record of the fact that you sustained injury in the accident; it won’t kill your claim if you don’t get checked-out but it is always easier to obtain medical evidence if you have been examined.
* Start to keep a list of all expenses you may incur as a result of the accident. This can include medication and treatment costs, the cost of the repair of your bike, if any property such as clothes/helmet or spectacles were damaged get quotes for their replacement or repair (don’t throw the damaged item away as the other side’s insurers may want proof of their damage). If you are off work make sure that you obtain sick notes if appropriate.
* If you need to get a taxi or a bus to go for medical examination or treatment or for any reason get a receipt or keep your ticket; the more you can prove the more you can claim.
* Likewise if you use your car for such purposes then keep a note of any mileage incurred, this can be claimed a set rate per mile.
* If your injuries are such that your spouse/partner/family or friends have to help you out with everyday activities again, keep a record. You can claim for their help even if that help was given without you paying for it.
* If you are likely to have some time off work then try and get together payslips for the 13 weeks before the accident; your solicitor will be able to get this information from your employers but it will speed things up if you have them to hand; some employers don’t regard helping you as a priority and their failure to respond can cause problems.

The above points will help you claim what are known as ‘special damages’ that is financial losses that can be calculated to the penny.

In addition you will be able to claim for what are known as ‘general damages’. General damages are sums that can not be specifically calculated and, in the main, relate to compensation for your pain and suffering as a result of the accident.

The valuation of your general damages will be based upon a medical report following an examination by a consultant appointed by your solicitor. The consultant will, as well as examining you, review your medical records which is why it is important that you seek medical assistance for as long as you need it; don’t just grin and bear it. If there are no records of medical treatment or attendance at your doctor or hospital it will be harder for the consultant to give a full account of your injuries and symptoms.

There has been a growing trend for the insurers of the offending vehicle to contact injured parties and offer a quick settlement saying that they, the injured party, will have to pay high fees if they instruct a solicitor. This is not true, if you have a good case a solicitor will act for you on a no win- no fee basis whereby all your costs will be paid by the other side without any deduction for your damages and, if you instruct a solicitor chances are you will receive a higher award.

To ensure that you get the maximum amount of compensation and all that you deserve speak to a solicitor who knows what they are doing and who specialises in cycle claims. This way you will ensure that you get the compensation that you deserve.

Read more: http://www.articlesbase.com/personal-injury-articles/claiming-for-cycling-accident-3026321.html#ixzz0wQYQWthO
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There is hardly anything more devastating than a serious motor vehicle accident. Flesh and bone doesn’t take kindly to rapidly moving, heavy pieces of metal. This can result in serious injury and even death. You can be laid up in a hospital for weeks or even months, resulting in not only damage to your body and mind but to your financial well being as well. This is why it is important to have the best personal injury lawyer you can find if you find yourself the victim of one of these horrible crashes.

Whether it is a tractor trailer accident, truck accident, or car accident, the damage that is done can be devastating. While you are lying helpless in the hospital all you can hear are the unfamiliar voices of the doctors and nurses buzzing around trying to make you comfortable and start you on your way to recovery. All you can think about is getting out of there and getting on with your life.

The injuries that you have suffered have unfortunately left you in a position where this is not immediately possible, however. Now you are not only worried about your physical well being, but thoughts about getting back to work and the thought of possibly not being able to work again come crashing into your mind. While a good auto accident lawyer may not be able to guarantee your health, they will at least be able to work on getting you the compensation you deserve for being thrust into this unfortunate situation.

Many times the settlement you will receive due to a car accident will be provided by an insurance company. What you need to remember is that the insurance company is not on your side. They have their own agenda, and that is getting away with paying out as little as possible, no matter how devastated your life might be. This is why a good personal injury lawyer who has experience with motor vehicle accident cases can be your greatest asset. They will be able to fight for what you deserve and get you compensation for a number of things that you might need to secure your future.

A good car accident attorney will evaluate your situation and can help you collect damages for pain and suffering. They will also be able to work on getting you compensation for both past and future medical care and rehabilitation costs. You may also be in a position where you will need housekeeping assistance, which your personal injury lawyer will also seek compensation for both past and future expenses. They will also work to make sure you receive proper compensation for any past and future loss of income, as well as work to recover any expenses that have been incurred as a result of the motor vehicle accident.

While they may not be able to give you back any physical attributes that may have been lost, a knowledgeable and experienced car accident attorney will at least be able to help you get the compensation you deserve to make your future as comfortable as possible. For anyone that finds themselves in this unfortunate dilemma, contacting a personal injury lawyer is imperative to getting the most compensation for the serious injury you have suffered.

Read more: http://www.articlesbase.com/law-articles/car-accident-attorneys-fight-when-you-cant-2879494.html#ixzz0uRTQxm9u
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The Fifth Amendment to the United States Constitution has many component statements about due process. It explicitly indicates about citizens not being required to do or say anything to incriminate themselves with the clause, “. . .[N]or shall be compelled in any criminal case to be a witness against himself.” The Supreme Court voted 5-4 in favor of making it required for authorities questioning the accused to advise them of their rights. We know it as the Miranda warning or Miranda law.

Since rights are read to those accused, it has become a general mindset that to not immediately speak up to defend oneself is to appear to be guilty. That is absolutely a wrong mindset to have. At any time that any citizen is accused of anything it is one-hundred percent advisable to say nothing to those in an authority position other than giving proper identification and saying, “I will wait for my attorney to be present before I answer any questions.” Over and over again almost every single day there are innocent people who bury themselves in legal quagmire by offering a statement without being asked for one or answering questions without having an attorney present.

In any situation where one is accused, whether it is for a minor offense or a serious crime, and may need the services of a DWI attorney or criminal lawyer, the truth of the matter is that whatever is said by the accused will be used against him or her in a court of law.

When the officer pulls a motorist over and asks the driver if he knew how fast he was going, many drivers immediately offer up an incriminating statement such as, “I don’t know how fast I was going,” or “I think I was only going one or two miles per hour over the speed limit.” Both can be used in court. If the driver doesn’t know how fast he was going he cannot state unequivocally that he was not speeding. If the driver was going a fraction of a mile per hour over the maximum posted speed limit, the law was broken.

Imagine saying something that could be misconstrued for a situation more serious than a minor traffic violation. At any time a person has to answer to legal authority, there is the stress of the actual incident and the stress of having to speak to those who have authority to arrest, cite and imprison. This is the best time to have a person who is an expert be there to defend against incriminating statements. The few dollars put out to have an attorney present during questioning has countless times saved citizens from fines, imprisonment or both.

All of us are supposed to be presumed innocent until proven guilty. However, the mindset of the authorities is to get the guilty to pay. One wrong word out of the mouths of even those who are absolutely innocent will get the authorities to focus their efforts on getting more. They will try harder to get more incriminating statements to come out of the mouth that offered up the interesting tidbit of information they are honing in on. So take advantage of that right to remain silent until help arrives.

Read more: http://www.articlesbase.com/law-articles/should-you-remain-silent-if-arrested-2865831.html#ixzz0uGsnKli2
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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to ending a common law relationship, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you. If you’re looking for a cohabitation agreement that avoids creating financial obligations on the parties and terminates when the parties get married, then check out our legal forms + video guides. You can contact me directly if you need a lawyer.

Here, I’ll be talking briefly about some things you should consider if you are in a common law relationship and want to end it. The first thing you should realize is that non-married spouses are NOT treated the same as married spouses when it comes to PROPERTY. Indeed, the Ontario Family Law Act does not give non-married spouses the right to equalize their net family property.

Note: Think of net family property as the net accumulation of wealth of the parties during their marriage. You don’t include certain things – such as property a spouse had before entering into the marriage. Nor do you include other things, such as inheritances or the matrimonial home (which is dealt with separately). You can include or exclude certain assets through a prenuptial agreement or marriage contract. That’s the starting point. Then, when you’ve figured out the value of all of these things, you divide that equally between the spouses. This is what is meant by an equalization of net family property.

So how is property dealt with in the breakdown of a common law relationship? Well, since the Family Law Act won’t govern these situations, you need to look elsewhere to get ideas. To begin, there could be a private contract between the spouses concerning jointly owned property. This private contract could be oral or in writing. Sometimes, however, one spouse may have simply acquired and maintained property on their own. Will the other spouse have any interest or entitlement to some or all of that property? Believe it or not, in certain circumstances, the courts have used EQUITABLE doctrines to say YES! Those equitable doctrines include, but are not limited to, UNJUST ENRICHMENT and CONSTRUCTIVE AND RESULTING TRUST claims.

Hollaway v. Devenish
In Hollaway v. Devenish, [2009] O.J. No. 5008, the Ontario Superior Court of Justice reviewed the law when it came to the equitable doctrines of unjust enrichment and constructive and resulting trust claims in the context of a common law relationship breakdown. Here’s what C.W. Hourigan J. wrote:

Legal Framework

48 As was made clear by the Ontario Court of Appeal in Wylie v. Leclair (2003), 64 O.R. (3d) 782 (Ont. C.A.), there is no presumption that the net family property of common law spouses should be equalized upon the breakdown of the relationship. Thus the parties are both making claims to property relying upon doctrines unjust enrichment, resulting trust and constructive trust. Before considering their respective claims, it is useful to review the current status of the law in these areas.

49 The Ontario Court of Appeal in the very recent decision Belvedere v. Brittain Estate, 94 O.R. (3d) 655 (2009), considered the issues of unjust enrichment, constructive trust and resulting trust in the context of a common law relationship. At issue in that case was a claim made by the plaintiff for a share of the defendant’s RRSPs. The trial judge, [2007] O.J. No. 3067, found that there had been an unjust enrichment and determined that the plaintiff was entitled to a constructive trust in the RRSPs. The court’s analysis of these issues is instructive for the purposes of the case at bar:

[38] In Becker v. Pettkus, [1980] 2 S.C.R. 834 (S.C.C.) at p. 848, the Supreme Court of Canada set out a three part test for a finding of unjust enrichment.

(1) an enrichment enjoyed by the defendant;

(2) a corresponding deprivation suffered by the plaintiff; and

(3) the absence of a juristic reason for the enrichment.

* * * *

[44] In my view, the categories of deprivation as found by the trial judge are not sufficient to establish a claim for unjust enrichment. Although Ms. Belvedere may have suffered a small loss to transfer her Air Canada Shifts, this practice allowed her to maintain her benefits and seniority with Air Canada. I also note that Ms. Belvedere was on leave from her job at the time she began cohabiting with Mr. Brittain, and so she could not be said to have given up “active work” with Air Canada as a result of commencing that relationship.

* * * *

[46] With regard to Ms. Belvedere’s provision of domestic services, it is clear that such services are capable of forming the basis for a claim in unjust enrichment: see Becker v. Pettkus at p. 849 and Sorochan v. Sorochan, [1986] 2 S.C.R. 38 (S.C.C.) at pp. 44-5. That said, it is equally clear that the conferring of a benefit does not, by itself, constitute unjust enrichment: see Lovsin v. Hodgins (2008), 39 E.T.R. (3d) 170 (Ont. C.A.) at para. 7. Rather, what is required, and what the trial judge failed to do in this case, is to balance the benefits conferred and received by the parties to determine whether the claimant’s contribution is sufficient to entitle her to compensation.

* * * *

[49] Given my conclusion that the trial judge erred in finding that Mr. Brittain had been unjustly enriched, it follows that he erred in finding a constructive trust in Ms. Belvedere’s favour. However, even if unjust enrichment had been made out in this case, there are two reasons why a constructive trust would not have been an appropriate remedy.

[50] First, a constructive trust is available as a remedy for unjust enrichment only where monetary damages are inadequate: see Peter v. Beblow, [1993] 1 S.C.R. 980, at p. 997. In this case, had unjust enrichment been established, monetary damages would clearly have been an adequate remedy. At the time of his death, Mr. Brittain’s estate was valued at approximately $6 million. There were more than adequate funds to compensate Ms. Belvedere for her claim of unjust enrichment.

[51] Second, in addition to the above requirement, there must be a link between the contribution that founds the action and the property in which the constructive trust is claimed: Peter v. Beblow at p. 988: see also Sorochan at p. 50. In this case, Ms. Belvedere did not contribute, directly or indirectly, to Mr Brittain’s RRSPs, and whatever potential interest she might arguably have had would, in any event, be limited to Mr. Brittain’s last two payments of $13,500 per year during the time of the cohabitation.

* * * *

[56] I have already found that the trial judge erred in finding unjust enrichment and imposing a constructive trust. However, even if a claim for unjust enrichment, payable in monetary damages, had been made out, in my view the amount awarded to Ms. Belvedere was patently unreasonable.

[57] Where damages are the remedy for unjust enrichment, the trial judge ought to proceed on a “value received” approach: see Bell v. Bailey (2001), 203 D.L.R. (4th) 589 (Ont. C.A.) at para. 38. In this case, the services Ms. Belvedere provided that arguably merit compensation were domestic labour, Air Canada travel and health benefits, and use of her family’s Florida condominium.

* * * *

[59] When the various services and benefits provided by Ms. Belvedere are viewed in their totality and balanced with the benefits received by her from Mr. Brittain, it is not possible to attribute a value to them of $1,750,000. Counsel for the appellant submitted that the trial judge effectively awarded damages at a rate equivalent to $2,500 per day of cohabitation. While this may not be the appropriate way of looking at the matter, it does place a different perspective on the trial judge’s award.

* * * *

[62] Counsel for Ms. Belvedere submits that the trial judge’s award of $1,750,000 may be justified by the application of the doctrine of resulting trust. She cites Rathwell in support of this proposition. I do not accept her submission. In Rathwell, the court restricted the application of the doctrine to those circumstances where the claimant actually contributed to the acquisition or improvement of the asset over which the resulting trust is claimed. Dickson J. said at p. 451:

If at the dissolution of a marriage one spouse alone holds title to property, it is relevant for the court to ask whether or not there was a common intention, or agreement, that the other spouse was to take a beneficial interest in the property … It is relevant and necessary for the courts to look to the facts and circumstances surrounding the acquisition, or improvement, of the property. If the wife without title has contributed, directly or indirectly, in money or money’s worth, to acquisition or improvement, the doctrine of resulting trusts is engaged. An interest in the property is presumed to result to the one advancing the purchase moneys, or part of the purchase monies.

[63] As discussed above, Ms. Belvedere made no such contribution to the acquisition of or improvement of the RRSPs.

50 On the issue of a constructive trust, regard should also be had to Peter v. Bedlow, 1993 CanLII 126 (S.C.C.). In that case the applicant was claiming an interest in the home that her common law spouse brought into the relationship on the basis of domestic services that she contributed without compensation to her partner during their common law relationship:

The basic notions are simply enough. An action for unjust enrichment arises when three elements are satisfied: (1) an enrichment; (2) a correspondent deprivation; and (3) the absence of a juristic reason for the enrichment. These proven, the action is established and the right to claim relief made out. At this point, a second doctrinal concern arises: the nature of the remedy. “Unjust enrichment” in equity permitted a number of remedies, depending on the circumstances. One was a payment for services rendered on the basis of quantum meruit or quantum valebat. Another equitable remedy, available traditionally where on person was possessed of legal title to property in which another had an interest, was the constructive trust. While the first remedy to be considered was a monetary award, the Canadian jurisprudence recognized that in some cases it might be insufficient. This may occur, to quote La Forest J. in Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (S.C.C.), [1989] 2 S.C.R. 574, at p. 678, “if there is a reason to grant to the plaintiff the additional rights that flow from recognition of a right of property”. Or to quote Dickson J., as he then was, in Pettkus v. Becker, 1980 CanLII 22 (S.C.C.), [1980] 2 S.C.R. 834, at p. 852, where there is a “contribution [to property] sufficiently substantial and direct as to entitle [the plaintiff] to a portion of the profits realized upon sale of [the property].” In other words, the remedy of constructive trust arises, where monetary damages are inadequate and where there is a link between the contribution that founds the action and the property in which the constructive trust is claimed.”

* * * *

This Court has held that a common law spouse generally owes no duty at common law, in equity or by statute to perform work or services for her partner. As Dickson C.J., speaking for the Court put it in Sorochan v. Sorochan, supra, at p. 46, the common law wife “was under no obligation, contractual or otherwise, to perform the work and services in the home or on the land.” So there is no general duty presumed by the law on a common law spouse to perform work and services for her partner.

51 The respondent relies upon Maloney v. Maloney [1993] O.J. No. 2724 (Ont. Gen. Div.). In that case the court found that the plaintiff had an entitlement to a share of the defendant’s business on the basis of a resulting trust. In reaching that conclusion the court held:

[45] In Pettkus v. Becker, [1980] 2 S.C.R. 834, Dickson J. clarified further the issue of intent because difficulties had arisen in subsequent cases in applying the doctrine of common intent in matrimonial property disputes. At p. 843, he stated:

The sought-for “common intention” is rarely, if ever, express; the courts must glean ‘phantom intent’ from the conduct of the parties. The most relevant conduct is that pertaining to the financial arrangements in the acquisition of property. Failing evidence of direct contribution by a spouse, there may be evidence of indirect benefits conferred: where, for example, one partner pays for the necessaries while the other retires the mortgage loan over a period of years, Fibance v. Fibance, [1957] 1 All E.R. 357.

[46] Dickson J. went on to state at p. 844:

Although the resulting trust approach will often afford a wife the relief she seeks, the resulting trust is not available, as Professor Waters points out, (at p. 374): “where the imputation of intention is impossible or unreasonable”. One cannot imply an intention that the wife should have an interest if her conduct before or after the acquisition of the property is “wholly ambiguous”, or its association with the alleged agreement “altogether tenuous”. Where evidence is inconsistent with resulting trust, the court has the choice of denying a remedy or accepting the constructive trust.

[47] As can be seen, in distinguishing between resulting and constructive trusts, much attention has been given to the issue of intention and how it is to be determined. However, there is no suggestion that contribution of some sort to the acquisition or maintenance of property, whether direct of [sic] indirect, is not required.

[48] In the case before me, I have no difficulty in concluding that the plaintiff has proved that she is entitled to an equal interest in the company by way of a resulting trust. I conclude that the plaintiff has established that a common intention existed that the parties own the pet shop business together and that they become equal shareholders in the company.

[49] The defendant told the plaintiff that they would have equal shares in the company. The plaintiff accepted that since she agreed to the borrowing of a substantial portion of the funds required for the establishment of the pet shop business on the security of their jointly held matrimonial home. If $4,000. was contributed to the company at the time of the establishment of the pet shop, those funds came out of the joint bank accounts of the plaintiff and the defendant. While the plaintiff had not been working outside her home in the five years prior to the establishment of the pet shop business, her earnings prior to that time had gone into the couple’s joint bank account.

[50] The plaintiff also had assumed a major role in housekeeping and child rearing during the couple’s co-habitation. Further, prior and subsequent to the establishment of the pet shop business, both parties contributed substantial labour to the business, first in setting up the business and then to running the business.

[51] The treatment of compensation to the plaintiff for her labour and the treatment of available cash in the business was also consistent with the defendant’s expressed intention that the plaintiff was to be an owner of the business and an equal shareholder. The plaintiff was not paid a set salary. Instead, available cash was used for income splitting by means of cheques which the defendant caused the company to issue to the plaintiff, which she in turn endorsed so that the defendant could deposit them in their joint account to be used for family needs or in the acquisition of other assets.

[52] When the move of the business to the second floor of the mall took place in 1990, the sum of $25,000. of the monies in the couple’s joint bank accounts, to which both the plaintiff and the defendant had contributed, was transferred to the company as a shareholders’ loan to be used for the expenses associated with the move.

[53] The imputation of a common intention is not impossible or unreasonable in this case. The conduct of the parties before and after the acquisition of the property is not ambiguous. The plaintiff made a substantial contribution to the acquisition of this asset both directly and indirectly in the ways I have outlined above. I find that the evidence is consistent with the defendant’s expressed intention as to ownership of the business and the equal shareholding of the plaintiff and the defendant in the business. Thus, the evidence is consistent with a resulting trust in favour of the plaintiff and I so find.

* * * *

[104] In the circumstances of this family, where the plaintiff and the defendant pooled their resources for the benefit of the family and to acquire assets, and where each has contributed in a substantial way, each has proved that, where any asset has been acquired during cohabitation in the name of only one of the plaintiff or the defendant, the one acquiring the asset would have been unjustly enriched. A monetary award would be insufficient. A nexus between the contributions of each of the plaintiff and the defendant and the various assets registered in the name of only one of the plaintiff or the defendant, the need for a constructive trust equal to one-half of the value of the asset has been proved.

* * * *

[114] Pensions and allowances have been divided in common-law spousal situations. See Thibert v. Thibert (1992), 66 B.C.L.R. (2d) 93 and Peter v. Beblow, supra. In the case before me, the evidence, to which I have already referred in connection with all other assets, also supports the plaintiff’s position that she should be awarded a one-half interest in that portion of the defendant’s pension attributable to the period of cohabitation, by way of a constructive trust. I should note that the plaintiff’s contribution to the defendant’s education is particularly relevant with respect to this asset as, without the education, the defendant would not have been in the same employment and would not have built up this pension. Accordingly, the remedy of constructive trust has been made out.

52 The applicant relies upon Reaney v. Reaney (1990), 28 R.F.L. (3d) 52 (Ont. S.C.) where Granger J. considered a claim of resulting trust regarding a pension that was accumulated by one party during the period of cohabitation:

During the period of cohabitation, Carol accumulated a pension from her employment with Bell Canada. There was no evidence that Reaney directly or indirectly contributed to the pension, or that there was any express or implied agreement or common intention between the parties that Reaney was to share in the pension and accordingly Reaney cannot obtain an interest in the pension on the basis of a resulting trust.

In the next blog, I’ll briefly review the unjust enrichment and constructive and resulting trust doctrines as they apply to common law breakdowns.

Read more: http://www.articlesbase.com/national-state-local-articles/common-law-breakup-part-1-what-are-your-rights-2797525.html#ixzz0t7eLKS5E
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Male patients frequently possess a poor knowledge of prostate cancer, their own chances for the cancer, and how to determine whether they have prostate cancer. Many men have little, if any, knowledge of the advantage of screening for prostate cancer or of the guidelines for when to start screening, how frequently to screen, and the meaning of screening test results. They put their confidence in their physician to do whatever is appropriate to detect any cancer early and cure them.

Delayed diagnosis of prostate cancer incidents are all too common. One typical medical mistake that is at the root of these cases arises when the male patient’s primary care physician (1) actually screens the individual for prostate cancer by tracking the amount of PSA (Prostate Specific Antigen) in his system, (2) finds abnormally high levels of PSA and but (3) does not inform the patient, does not refer the patient to a specialist, and fails to get a biopsy to confirm whether the elevated PSA is a result of prostate cancer. The lawsuit below illustrates this situation.

A physician, an internist, discovered that his male patient had a PSA of 8. (anything above a 4.0 is normally viewed as high). The physician did not inform the patient. The physician did not refer the patient to a urologist. The doctor did not order a biopsy. Two years later the doctor repeated the PSA test. This time it had gone up to 13.6. Again, the doctor said nothing to the patient. Again, the doctor did not refer the patient to a urologist. And again, the physician did not order a biopsy. Two years later the doctor repeated the PSA test. It was not until three years after first finding out about the patient’s elevated PSA level that the physician at last advised him that he probably had cancer. Further testing showed that at this point he had metastatic prostate cancer. A prostatectomy was no longer an option. Treating physicians alternatively recommended radiation therapy and hormone therapy. Neither of these would cure the cancer but they might impede the cancer’s advancement and further spread. The law firm handling this matter reported that the case proceeded to mediation and settled in the amount of $600,000.

But not following up after observing abnormal test results brings about a situation in which those patients who do actually have prostate cancer might not find out they have it until it has spread outside the prostate, decreasing the patient’s choices for treatment, and substantially reducing the chances that the patient will be able to survive the cancer.

As the above claim illustrates physicians sometimes comply with the guidelines by performing screening for prostate cancer yet when the test results are abnormal they fail to do anything about it.

Read more: http://www.articlesbase.com/law-articles/when-doctors-do-not-follow-up-after-psa-results-signal-the-chance-of-prostate-cancer-2787102.html#ixzz0syI5Lq2z
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Fathers Rights’ asserts constitutional and equal rights for both fit parents under divorce and paternity suits. But fathers continue to face unconstitutional deprivations with their children suffering. This article addresses what fathers groups must do.

Fathers must first realize that the Divorce and Domestic Violence Industry (DDVI) is an enormous industry encompassing tens of billions of dollars in the U.S. annually. The elements of this state and court-affiliated industry permeate from the federal level (ex. federal child support enforcement industry), to the state level (Departments of State Revenue, family court judges, lawyers, GALS, parenting classes, domestic violence ,etc) right down to the town level (police domestic violence units and mothers themselves).

The key thread throughout is the child support enforcement agencies who feed off of child extortion payments from noncustodial father-slaves who have been illegally deprived of their parental rights to the benefit of mothers who refuse to share custody with fit fathers for money and revenge. It creates enormous wealth transfer and destruction of families.

Phony domestic violence accusations stemming from and supported by VAWA (the Violence Against Women Act – a billion dollar-a-year boondoggle for women) funnel money down to local police and shelters that feed off the unjust laws of entrapment of father with no due process for their protection. The DDVI constitutes a growing unconstitutional cancer integrated into (and lobbying) the legal and political structures that now engineer a fatherless society. As a whole it feeds off the destruction and deprivation of fathers and damage to their children.

It has created an Orwellian ‘newspeak’ of terms such as ‘best interest of children’, ‘child support’, and ‘safety of women’ – which misrepresent and hide their true deleterious and unconstitutional meanings imposed on fathers and men. These terms are designed to be seen as a greater good – superior to the fundamental (i.e. inalienable) rights of each of us. These terms are used to subdue opposition from men and fathers as their children and their rights are both unjustly and unconstitutionally ripped from them. They represent the vague and meaningless terms tyrannies use.

*What Fathers Groups Must NOT Do:

Fathers groups must not kowtow to these terms. Many fathers are afraid to be labelled ‘deadbeat dads’. Yet the system extorts them with jail to pay and support the system that suppresses their rights, robs their children from their care and often perverts their children with malicious father-alienation assistance of so many of the ‘single’ mother class heralded by the Politically Correct (PC) media and pandering politicians.

Fathers must make it known to the general public who is completely unaware of the tyranny against fathers taking place. This tyranny is hidden under the barrage of ‘deadbeat dads, abusers’ and suppression of truth by the PC media. Those fathers of the unknowing public find it out when they wind up in family (divorce) court themselves.

Fathers Rights groups go wrong by trying to use vague neutral terms such as parents rights and custody improvement, which is meaningless to an unknowing public – including those men and fathers who need and deserve to know what is in store for them – so they can stand up and fight for their rights too, before they are unknowingly thrust into slave status. It is the duty of fathers rights groups to tell the naked truth to the public.

Fathers rights groups who work slowly to try to alter this tyranny by reducing child support by 10% or hope to eventually get shared physical custody through the legislative initiatives will not get what they want. They are wasting time. And worse, they are enabling the system to continue to become more entrenched and institutionalized into the current social psyche. Though often intelligent, these men are naïve at best and cowards at worse when they realize what really must be done.

*What Fathers Rights Groups Must Do:

Fathers Rights groups must tell the public that men and fathers are targeted for destruction and financial rape under the present unconstitutional system for the benefit of the DDVI – which includes the new heralded ‘single mother’ class. They must bypass the PC/Anti-fathers rights media who cover-up the reality of this tyranny. They need to go straight to the unknowing men and fathers in the public realm.

Fathers Rights signs put out on the highways are an excellent first step. We need 10,000 signs per state displayed on all major highways establishing the message that the family court and the rest of the DDVI deny fathers rights and make them slaves of the state for profit, power and agenda.

With the signs alerting the unknowing public, it’s time for nonviolent civil disobedience to show the seriousness of the present deprivations that fathers and their children face.

Read more: http://www.articlesbase.com/law-articles/what-fathers-groups-must-do-and-not-do-for-real-progress-for-fathers-rights-2759649.html#ixzz0sSefFtcB
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