Tuesday, September 10, 1996

Business in Vancouver: Hickman fights for time as Florida creditors win $4.2-million sale and seizure order


Issue 359: Finance
September 10-16, 1996
Hickman fights for time as Florida creditors win $4.2-million sale and seizure order
Former chair of Motion Works asking for more time to compile list of assets as pension-plan administrators launch coordinated attack
By Brent Mudry
A court battle for the assets of controversial businessman John Hickman III is heating up, five months after the would-be saviour of financially troubled software firm Motion Works Group was ousted following revelation of his involvement in financial irregularities concerning a Florida pension fund in 1990.
The latest woes of the high-rolling financier come as Hickman fights to stave off attempts to seize assets of $4.2 million in coordinated moves in courts in B.C., Texas and Idaho.
Vancouver lawyers for the plaintiff, a Palm Beach pension fund, are vigorously fighting Hickman's delay in complying with a recent B.C. Supreme Court order instructing him to file quickly a detailed affidavit listing his assets.
"With respect to your client's failure to provide the affidavit on a timely basis, we will be taking the position that he is in contempt of court," warns lawyer Mark Weintraub of Silber Weintraub in an August 27 letter to Hickman's lawyer, Bruce Quayle of Lang Michener Lawrence & Shaw.
An affidavit filed in court reveals that Hickman has too many assets and business dealings to list them all quickly. "Because the order is very broad and requires him to go through a great deal of material...the five days allowed by the order for providing the affidavit is insufficient," states Eve Lauder, Quayle's legal assistant.
Hickman's career as a Vancouver software financier ended in late March, when information about his previous financial dealings surfaced in packets of six-year-old U.S. court documents delivered to the B.C. Securities Commission and the Vancouver bureau of the Financial Post. The court papers revealed that Hickman and several companies he controlled were assessed in 1991 by a U.S. bankruptcy court for US$2.2 million owing to the pension fund of Palm Beach County Utilities Corp.
Hickman's Buffalo Capital Corp. took control of the utility in the mid-1980s and he served as its CEO before it entered Chapter 11 bankruptcy in January 1990. An unfinished Ernst & Young audit cited incomplete documentation and possible irregularities in the transfer of more than US$700,000 from Palm Beach to Buffalo Capital.
In a court-filed affidavit, Silber Weintraub legal assistant Lesley Legge claims Hickman reneged on an agreement to repay $500,000 to the pension fund in a bankruptcy reorganization plan, and failed to show up in court when the money was due.
In the affidavit, Palm Beach vice-president David Brownlee is quoted as saying that Hickman later agreed to pay US$150,000 within 60 days in a U.S. Department of Labour settlement, but ended up paying only US$135,000, stretched out over three and a half years in small payments. U.S. Secretary of Labour Robert Reich imposed a permanent ban on Hickman, barring him from ever serving in a position of trust with a federally regulated pension plan.
Hickman, who took control of Motion Works following a bitter boardroom ouster of founder Randall McCallum in 1994, never disclosed his Palm Beach dealings, the bankruptcy filing or the Department of Labour ban to officials at the Vancouver Stock Exchange or the B.C. Securities Commission. When the revelations came out in March, trading in Motion Works shares was suspended by the VSE, and Hickman and his board were forced out of the company
Securities filings show that while Hickman injected some money to help keep Motion Works afloat, his reign at the software firm was lucrative. A 1995 information circular notes that Hickman paid himself a 1995 salary of $248,000, and received $207,000 in shares and options for an additional 950,000 shares.
Court-filed documents indicate that Hickman's Palm Beach creditors quietly began to renew their pursuit of the entrepreneur in January. Days after the VSE halt in March, the Palm Beach creditors filed their Texas court judgment against Hickman and his holding companies in Idaho court, and Hickman was served on March 31.
On August 6, a B.C. Supreme Court judge issued a $4.2-million writ of seizure and sale in an ex parte proceeding, with no advance notice to Hickman's lawyers. Ten days later, Justice Glenn Parrett issued a court order freezing Hickman's assets wherever located and ordered him to provide an affidavit identifying all his assets. Court documents indicate the plaintiffs are especially interested in the 35-room mansion and 150-acre Sweet Briar estate that Hickman claimed he owned in a March 1995 BIV profile.
Both sides expect to square off in court in Vancouver in early September.*

Wednesday, May 1, 1996

Inheritance Rights - Executive Summary

EXECUTIVE SUMMARY
Mark S. Weintraub
May, 1996

SILBER WEINTRAUB
BARRISTERS & SOLICITORS

KNOW YOUR INHERITANCE RIGHTS

Literature, theatre and film have long recognized the powerful emotions that arise around Wills. In this area of practice, fiction is not too far from reality. Passions run so deep that otherwise non-combative individuals can find themselves in litigation. Mark Weintraub has acted as counsel on various issues related to Estate Litigation. This Executive Summary highlights one of his papers which addresses broad principles on inheritance rights. The paper which this Executive Summary highlights is intended to be presented to lay people as a basic introduction to inheritance rights.
  • In British Columbia, as in other common law jurisdictions, there is no such thing as absolute testamentary freedom. There are four significant areas which place a check on absolute testamentary freedom.
  • Firstly, a testator must, subject to certain exceptions, be 19 years old before he or she has the legal capacity to make an enforceable Will.
  • Secondly, a testator must understand the nature of his acts; the extent of his property; appreciate the claims of those around him and must not be suffering from a "disorder of the mind that shall poison his affections, pervert his sense of right or prevent the exercise of natural faculties."
  • Thirdly, are the principles prohibiting undue influence. While falling short of incapacity, undue influence can be invoked when the testator is vulnerable and dependent and where it can be shown that the beneficiary has taken advantage of a position of authority or influence.
  • Finally, the most common challenge to a Will today is under the Wills Variation Act, a B.C. Statute.
  • The Act allows a spouse and child and only a spouse and child to vary the terms of a Will when the testator has not made adequate provision for the proper maintenance and support of the surviving spouse and children.
  • The Court has considerable discretion to make an Order that it considers adequate, just and equitable to ensure that a testator discharges his or her moral duty.
  • The Supreme Court of Canada has rejected a narrow needs-based test such that even adult, self-supporting wealthy children are able to apply to vary a Will but the extent of same will be subject to a consideration of numerous factors.
  • These factors include the size of the estate; the standard of living of those involved in the case; how the testator was cared for; misconduct or estrangement by the children; contributions to the Estate; health of those involved, etc.
  • The Court will give recognition firstly to legal obligations and thereafter, attempt to prioritize competing moral obligations. Effectively, testators should know that children cannot be disinherited except for absolutely clear cause.
  • Because of the expensive and potentially traumatic nature of this kind of litigation, lawyers are attempting to promote alternative dispute resolutions such as mediation over the courtroom.
  • Experienced counsel should play a key role in advising as to which procedure is most likely to resolve the conflict in the most expeditious manner while at the same time obtaining the best possible result.
  • Increasingly there is another factor thrown into the mix which can complicate matters. An increasing number of Wills will be seen to be dependent upon traditional patriarchal values which treat female members of the family inequitably.
  • While there is no clear court pronouncement on this issue, it is the author's view that any gift made primarily based upon gender should be considered an irrelevant consideration which a Court is required to ignore.

The foregoing is an Executive Summary of a discussion paper on inheritance rights in British Columbia. This document and the lengthier paper it intends to summarize is necessarily of a general nature. Neither this Executive Summary nor the paper should be regarded as legal advice nor relied upon for that purpose. Mark S. Weintraub, would be pleased to consult with you regarding any issues related to Estate matters.

Monday, January 1, 1996

Biography



Mark S. Weintraub

Direct Tel. (604) 643-3113
Email
msw@cwilson.com
800 - 885 West Georgia Street Vancouver B.C. V6C 3H1 Main Tel. (604) 687-5700 Fax (604) 687-6314
www.cwilson.com

Area of Practice

Estate and Trust Litigation, Elder Law and Commercial Litigation.


Profile
Mark Weintraub is a partner with Clark Wilson LLP and is a member of the firm’s Litigation Department.
Mr. Weintraub received his Master of Arts degree from the University of British Columbia in 1978 and his LL.B. from the University of Toronto in 1982.



Prior to joining Clark Wilson LLP, Mr. Weintraub practised law as one of the more senior litigation partners at the firm of Freeman & Company and prior to joining Clark Wilson LLP was a founding partner of the firm Silber Weintraub.
Mr. Weintraub has acted as counsel in a wide spectrum of actions, including estate and trust litigation, commercial fraud and shareholder and partnership disputes.



Mr. Weintraub has had considerable experience as counsel in highly disputed Estates, involving allegations of negligent or fraudulent administration. A number of his cases have involved novel points of law or complex factual issues, including legal obligations of executors, committeeships, powers of attorney, status of parties and gender discrimination.



Memberships & Associations
Member, Law Society of British Columbia Member, Canadian Bar Association (Civil Litigation; Wills and Trusts) Member, Vancouver Bar Association Member, B.C. Trial Lawyers Association (Estate Litigation Section) Member, National Academy of Elder Law Attorneys



Presentations & Writings
Mr. Weintraub has written for and presented courses and seminars for various industry groups. Additionally, he has undertaken various continuing professional education projects for The Continuing Legal Education Society of British Columbia under the auspices of the Law Society (CLE) and other legal education providers including:
· Contributing Author: CLE Practice Manual: BC Estate Planning & Wealth Preservation: Chapter 6 Asset Protection, April 2006 (TBA)
· Contributing Author: CLE Practice Manual: BC Estate Planning & Wealth Preservation: Chapter 6 Asset Protection, April 2005
· Contributing Author: CLE Practice Manual: BC Estate Planning & Wealth Preservation: Chapter 6 Asset Protection, April 2004
· Course Presenter: Dye & Durham Law Seminars, Selected Topics on Estate Administration and Litigation, June 2003
· Contributing Author: CLE Practice Manual: BC Estate Planning & Wealth Preservation: Chapter 6 Asset Protection, April 2003
· Course Presenter and Contributing Author: Canadian Association of Gift Planners National Conference Topics in Estate Litigation for Gift Planners, April 2003
· Course Presenter: CLE Wills & Estates Conference: Asset Protection Techniques: How Effective Are They? February, 2002
· Contributing Author: CLE Practice Manual: BC Estate Planning & Wealth Preservation: Chapter 6 Asset Protection, February, 2002
· Contributing Author: Law Society Professional Legal Training Bar Admission Practice Material The Estates of Mentally Incompetent Persons and the Public Guardian and Trustee, 2002
· Contributing Author: Law Society Professional Legal Training Bar Admission Practice Material The Estates of Mentally Incompetent Persons and the Public Guardian and Trustee, 2001
· Course Presenter and Contributing Author: Pacific Business & Law Institute Trust Conference Restricting Attacks on the Trust, May, 2000
· Contributing Author: Law Society Professional Legal Training Bar Admission Practice Material The Estates of Mentally Incompetent Persons and the Public Guardian and Trustee, 2000
· Course Presenter: Pacific Capability Evaluation Clinic, Mental Competency Seminar Testamentary Capacity Issues, 1999



Community Involvement
Chair, 2004 – 2007, Canadian Jewish Congress Pacific Region
Co-Author, Japanese War Crimes: The Search for Justice (Rutgers University) Transaction Publishers 2003
Key Note Speaker, Tokyo Conference War Crimes & Redress: Accountability, Justice and the Importance of Memory in the Era of War
Member, 1992, British Columbia Law Society, Multiculturalism Committee
Chair, 1998 – 1999, Planned Giving Canadian Cancer Society (BC & Yukon)
Co-Chair, 1998 – 1999, Revenue Development Canadian Cancer Society (BC & Yukon)





Taken From: http://www.cwilson.com/profiles/msw/