Canada - Barry, 75, & Honey Sherman, 70, found dead, Toronto, 15 Dec 2017 #13

[InspectorLoneRanger]

IIRC however, we have been told repeatedly that HS did not have a (signed(?)) Will, and that BS had left his entire estate to the four children?

Correct. IMO the brief is deliberately vague to try to bend the court's ear. I suspect it's simply a red herring and they are simply referring to the addresses of the executors and beneficiaries which would not be widely known.

It's approx 3 weeks so it should be 'clear as mud' sooner rather than later. There's really no surprises in the Barry's will. Much of the contents have leaked out as the 4 executors have copies as do the 4 beneficiaries as per the rules of civil procedure.

http://ontariocourtforms.on.ca/static/media/uploads/courtforms/civil/74_04/rcp-74-4-e.pdf
http://ontariocourtforms.on.ca/static/media/uploads/courtforms/civil/74_06/rcp-74-6-e.pdf

 

[InspectorLoneRanger]

IIRC however, we have been told repeatedly that HS did not have a (signed(?)) Will, and that BS had left his entire estate to the four children?

Correct. IMO the brief is deliberately vague to try to bend the court's ear. I suspect it's simply a red herring and they are simply referring to the addresses of the executors and beneficiaries which would not be widely known.

It's approx 3 weeks so it should be 'clear as mud' sooner rather than later. There's really no surprises in the Barry's will. Much of the contents have leaked out as the 4 executors have copies as do the 4 beneficiaries as per the rules of civil procedure.

http://ontariocourtforms.on.ca/static/media/uploads/courtforms/civil/74_04/rcp-74-4-e.pdf
http://ontariocourtforms.on.ca/static/media/uploads/courtforms/civil/74_06/rcp-74-6-e.pdf

 

[InspectorLoneRanger]

I just wanted to add two more updates.

I was someone incorrect about the dates the SCC will post all the materials. As a general rule, it's 2 weeks prior.

As per the SCC order we may not see the documents until March 13th or March 16th:
The motions for leave to intervene are granted and the said five (5) interveners or groups of interveners shall be entitled to each serve and file a factum not to exceed ten (10) pages in length. The deadline set by the Registrar on December 4, 2019, is varied and the interveners or groups of interveners shall serve and file their factums and books of authorities, if any, on or before March 5, 2020.
The said five (5) interveners or groups of interveners are each granted permission to present oral argument not exceeding five (5) minutes at the hearing of the appeal.
The appellants and respondent are each granted permission to serve and file a single reply factum to all interventions not to exceed five (5) pages in length on or before March 12, 2020, at 12 p.m. EST.


Additionally, Timothy G. Youdan, Chantelle Cseh, Elie Roth and Rui Gao are all top Lawyers.
They will do an excellent job for the applicant insomuch as how they cross KD.

I am optimistic that the SCC will stream it. It will be a great cross to watch for those of you interested in the judicial process. There won't be a "You can't handle the truth moment" but I guarantee it will be entertaining.

Decision on motion to adduce new evidence, Row,
UPON APPLICATION by the respondent for an order to adduce new evidence;
AND UPON APPLICATION by the appellants for an order to cross-examine the respondent;
AND THE MATERIAL FILED having been read;
IT IS HEREBY ORDERED THAT:
1. The motion for leave to cross-examine the respondent is granted with costs in the cause.
2. The motion to adduce new evidence is adjourned pending completion of cross-examinations.
Adjourned, no order as to costs

 

[InspectorLoneRanger]

Here's a great review on KD's book. The vlogger has been in contact with Sherman's PI and the police. He goes on to shares updates and insight.

 

[InspectorLoneRanger]

In case anyone doesn't want to read through KD's brief. Here's the meaty stanza which explains why I think he will be successful.

25. While the consequences of an individual’s loss of privacy could cause harm to an important public interest satisfying the first branch of the test, there is no room to suggest that a loss of privacy alone, with nothing else, is enough. The applicants’ argument, if accepted, would completely undermine the open court principle by removing the requirement that persons seeking to protect their private information by way of a confidentiality must first demonstrate a real and substantial risk to a public interest. This is because the privacy of every single person mentioned in court proceedings or documents is prima facie compromised simply by virtue of the open court principle. The only remaining consideration would be the second branch of the Sierra Club test: whether, on balance, the risk to a person’s privacy is outweighed by the public interest in openness. 19 Vancouver Sun (Re), 2004 SCC 43 at paras. 26-28 [Vancouver Sun]. 20 As emphasized by Lamer C.J. in Dagenais v. Canadian Broadcasting Corp. [1994] 3 S.C.R. 835 at 878 [Dagenais]. 21 Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11[Charter]; Dagenais at 839. 22 Toronto Star at para. 1. - 8 - If this court file should be sealed because the Sherman family prefers its estate file proceed in private, why would any other family not seek the same order, and on the applicants’ logic, why would it not be granted every time? The burden would effectively shift to the public to prove it has enough of an interest in the specific proceeding to outweigh the privacy harm. Sealing orders would become routine and the constitutionally enshrined principle of open court would wither into nothingness.

 

[Lexiintoronto]

More speculation - but possibly the grandchildren?

I think that could be it, and maybe extended family members.

(Kevin Donovan speaking to a Rabbi, bbm) :
“I told him that I did not think any charity had been listed in the Sherman will and that, to the best of my knowledge, the estate was divided equally among the four children, with some discretion for the trustees to give money to other family members if they desired.”

— The Billionaire Murders: The Mysterious Deaths of Barry and Honey Sherman by Kevin Donovan

 

[deugirtni]

I think that could be it, and maybe extended family members.

(Kevin Donovan speaking to a Rabbi, bbm) :
“I told him that I did not think any charity had been listed in the Sherman will and that, to the best of my knowledge, the estate was divided equally among the four children, with some discretion for the trustees to give money to other family members if they desired.”

— The Billionaire Murders: The Mysterious Deaths of Barry and Honey Sherman by Kevin Donovan

Would the information KD is seeking also include how the Wills were distributed? ie if it was discretionary as to whom the trustees of the Wills could give money to, would those choices and amounts also be public record?

 

[InspectorLoneRanger]

Would the information KD is seeking also include how the Wills were distributed? ie if it was discretionary as to whom the trustees of the Wills could give money to, would those choices and amounts also be public record?

No

The process only involves 1. Will, and Listing both the Executors as well as the Beneficiaries.

Theoretically, there are thousands of combinations the assets could be paid out of the estate but the most logical is all cash. There is a HUGE capital gain on Apotex (as high as 10 Billion). The only way to satisfy the taxes owing would be to sell the company, take it public, and borrow the money from banks to pay off the taxman.

It's the same reason why Jack Kemp Cooke's estate had to sell the redskins or Ralph Wilson selling the Bills. Death triggers capital gains.

 

[ldlager]

No

The process only involves 1. Will, and Listing both the Executors as well as the Beneficiaries.

Theoretically, there are thousands of combinations the assets could be paid out of the estate but the most logical is all cash. There is a HUGE capital gain on Apotex (as high as 10 Billion). The only way to satisfy the taxes owing would be to sell the company, take it public, and borrow the money from banks to pay off the taxman.

It's the same reason why Jack Kemp Cooke's estate had to sell the redskins or Ralph Wilson selling the Bills. Death triggers capital gains.

Not necessarily. Barry could have done an estate freeze many years ago and deferred most of the capital gain until future generations sold the shares. There are other tax deferral arrangements that he may have used also. He had sophisticated tax expertise available to him for sure. At this point we don’t really know what he may have done.

 

[1&2&3]

Do we know if Barry’s will was written without Honey knowing what was in it? If so, could this be why it is rumored she went to another lawyer and had her will drawn up but she hadn’t signed it?

If it proves to be true that Barry left Honey out of his will, then their deaths (murders) are very suspicious. IMO.

IIRC, in the US, if a spouse or parent is purposely leaving the spouse or child out of the will, this fact must be mentioned in said will. If not, this person, left out, can contest the will. Is this applicable in Canada?

 

[InspectorLoneRanger]

Do we know if Barry’s will was written without Honey knowing what was in it? If so, could this be why it is rumored she went to another lawyer and had her will drawn up but she hadn’t signed it?

If it proves to be true that Barry left Honey out of his will, then their deaths (murders) are very suspicious. IMO.

IIRC, in the US, if a spouse or parent is purposely leaving the spouse or child out of the will, this fact must be mentioned in said will. If not, this person, left out, can contest the will. Is this applicable in Canada?

As per Donovans' book and his numerous articles - It is clear they both had estate planning on their minds.
If we are to believe the assertations (and I do) then Barry's will stated that everything was to go to Honey. (She was his one and only wife and then when she passed on the assets were to be split among the 4 kids.)

Anyone can contest the will but they will have to bear the costs. Wills can only be set aside if they are improperly drawn up and then the rules of civil procedure would apply. Rules of intestate (dying without a will) which in this case would leave his entire estate to the 4 kids equally.
Will Challenges in Ontario | Ontario Probate & Estates Law

 

[InspectorLoneRanger]

Not necessarily. Barry could have done an estate freeze many years ago and deferred most of the capital gain until future generations sold the shares. There are other tax deferral arrangements that he may have used also. He had sophisticated tax expertise available to him for sure. At this point we don’t really know what he may have done.

I respect your opinion but there there is no such tax maneuver where you can freeze an estate and defer capital gains until future generations sell or die. That would be tax avoidance rather than tax deferral and the consequences are draconian. Up to 100% penalty

There is an estate planning maneuver where you can sell the shares to a related party (family trust) at fair market and settle with taxman. (Frank Stronach family did this maneuver and they are in court over it now.)

The evidence is that Barry did not engage in this maneuver as Kerry Winter is suing the Estate of Barry Sherman where Barry's ownership stake of Apotex is now held.

 

[Lexiintoronto]

No

The process only involves 1. Will, and Listing both the Executors as well as the Beneficiaries.

Theoretically, there are thousands of combinations the assets could be paid out of the estate but the most logical is all cash. There is a HUGE capital gain on Apotex (as high as 10 Billion). The only way to satisfy the taxes owing would be to sell the company, take it public, and borrow the money from banks to pay off the taxman.

It's the same reason why Jack Kemp Cooke's estate had to sell the redskins or Ralph Wilson selling the Bills. Death triggers capital gains.

Apotex is estimated to be valued at around 3 billion. How could the capital gains tax on it alone be 10 billion?

“Apotex is working with a financial adviser as it reviews options that may lead to a partial or full sale of the business, the people said. A sale of the whole company could fetch about $3 billion, the people said, asking not to be identified because the deliberations are private.”

Canadian Drugmaker Apotex Weighs Sale Amid Interest

The article above mentions a sale of five of Apotex’s companies in Europe for around 83 million.

 

[Lexiintoronto]

Do we know if Barry’s will was written without Honey knowing what was in it? If so, could this be why it is rumored she went to another lawyer and had her will drawn up but she hadn’t signed it?

If it proves to be true that Barry left Honey out of his will, then their deaths (murders) are very suspicious. IMO.

IIRC, in the US, if a spouse or parent is purposely leaving the spouse or child out of the will, this fact must be mentioned in said will. If not, this person, left out, can contest the will. Is this applicable in Canada?

We won’t know the facts about the Estate unless the files are unsealed.

In my experience yes, if you’re leaving a spouse, or other next of kin, out of your will you have to name them in your will and note they are to receive nothing.

 

[InspectorLoneRanger]

Apotex is estimated to be valued at around 3 billion. How could the capital gains tax on it alone be 10 billion?

“Apotex is working with a financial adviser as it reviews options that may lead to a partial or full sale of the business, the people said. A sale of the whole company could fetch about $3 billion, the people said, asking not to be identified because the deliberations are private.”

Canadian Drugmaker Apotex Weighs Sale Amid Interest

The article above mentions a sale of five of Apotex’s companies in Europe for around 83 million.

Lexii

Private companies are notoriously hard to value. The only way to value a company is through the auction market. There's going to be a bidding war. The highest bidder will win. Then the value will be set. It could go for less than 3 Billion or it could sell for more. My personal belief is that it's worth around 10ish.

 

[InspectorLoneRanger]

We won’t know the facts about the Estate unless the files are unsealed.

In my experience yes, if you’re leaving a spouse, or other next of kin, out of your will you have to name them in your will and note they are to receive nothing.

I respect your opinion but in Ontario, you can't leave your spouse out of your will.
Estate Law Canada: Can I cut my spouse and kids out of my will by leaving them a dollar?

 

[Lexiintoronto]

I respect your opinion but in Ontario, you can't leave your spouse out of your will.
Estate Law Canada: Can I cut my spouse and kids out of my will by leaving them a dollar?

Also with respect, you can, and I did. I had to name him in the will and specify that he was to receive nothing. The lawyer noted why he was excluded (separation).

“While a divorce changes many things, a separation does not. Anyone who is separating should immediately speak to a lawyer. ...

The biggest potential danger is to your estate. "If married spouses do not execute new wills after separation, then effectively the old wills are still valid. The ex could end up with your property," says Mr. Golombek.”
A warning for couples who have split but not divorced

 

[deugirtni]

No

The process only involves 1. Will, and Listing both the Executors as well as the Beneficiaries.

Theoretically, there are thousands of combinations the assets could be paid out of the estate but the most logical is all cash. There is a HUGE capital gain on Apotex (as high as 10 Billion). The only way to satisfy the taxes owing would be to sell the company, take it public, and borrow the money from banks to pay off the taxman.

It's the same reason why Jack Kemp Cooke's estate had to sell the redskins or Ralph Wilson selling the Bills. Death triggers capital gains.

1. If what KD is seeking is only to see the Wills and the listings of executors and beneficiaries, and all of these things have already been published for the most part (according to 'sources'), and KD doesn't seek to discover how exactly the Wills were distributed and to whom in which amounts, then what is the family arguing against that is so private and confidential that it could be dangerous for the beneficiaries that they are willing to pay the expense to take it all the way to the SCC?

2. The wealth of the Shermans has been stated as being anywhere from 3 billion to 7 billion CAD or USD, depending which reports you're reading, so how would one figure the capital gains would be 10 billion, when capital gains tax is only a percentage of the gain?
(Bernard (Barry) Sherman | December 2017, 75
Canada, $3 bil | pharmaceuticals
From The World's Richest Woman To A Strangled Mogul: The Billionaires Who Died In The Last Year)

3. Isn't it possible that Barry's financial advisors advised him at some point in the past to pay the capital gains tax up to a certain level/point in time, so as to lessen the tax impact in the event of death or sale?

 

[InspectorLoneRanger]

Also with respect, you can, and I did. I had to name him in the will and specify that he was to receive nothing. The lawyer noted why he was excluded (separation).

“While a divorce changes many things, a separation does not. Anyone who is separating should immediately speak to a lawyer. ...

The biggest potential danger is to your estate. "If married spouses do not execute new wills after separation, then effectively the old wills are still valid. The ex could end up with your property," says Mr. Golombek.”
A warning for couples who have split but not divorced

I think we are saying the same thing. Yes, after a divorce you can change your will. But if you change your will and die before the divorce then the divorce would not be finalized and thus the will would be invalid and would be set aside as per the rules of Ontario civil procedure.

 

[InspectorLoneRanger]

1. If what KD is seeking is only to see the Wills and the listings of executors and beneficiaries, and all of these things have already been published for the most part (according to 'sources'), and KD doesn't seek to discover how exactly the Wills were distributed and to whom in which amounts, then what is the family arguing against that is so private and confidential that it could be dangerous for the beneficiaries that they are willing to pay the expense to take it all the way to the SCC?

2. The wealth of the Shermans has been stated as being anywhere from 3 billion to 7 billion CAD or USD, depending which reports you're reading, so how would one figure the capital gains would be 10 billion, when capital gains tax is only a percentage of the gain?
(Bernard (Barry) Sherman | December 2017, 75
Canada, $3 bil | pharmaceuticals
From The World's Richest Woman To A Strangled Mogul: The Billionaires Who Died In The Last Year)

3. Isn't it possible that Barry's financial advisors advised him at some point in the past to pay the capital gains tax up to a certain level/point in time, so as to lessen the tax impact in the event of death or sale?

Respectfully,

2. I'm not saying the Tax owning would be 10 Billion. I'm saying that the valuation of of Apotex IMO is 10 Billion. It's that's the case because Barry started it with 300,000 the capital gain is 10 Billion - $300,000 X 50% X 50% = 2.5 Billion. (The actual value of Apoxtex will be determined when it is sold).

You have to pay tax on the actual market value and not "I think it's worth $5 bucks valuation methodology".

When my parents passed away I settled their estate which included a 1 million cottage. I initially guesstimated the value and paid Capital gains tax of $250K, but when the cottage sold 1 year later it went for 1.4 million thus I had to file an amendment and pay an additional tax of $400,000 X 50% X 50% = $100,000

3. It would be imprudent(foolish) for Barry crystalize the Asset Cost Base. It would have the effect of draining Cash/Equity from his operation. Not following that advice is like an interest-free bank loan. Let's say Barry took that advice 10 years ago and paid the CRA 1 Billion dollars. If he didn't follow that advice he could take those 1 billion dollars he didn't give the CRA and invest it in TBills, or Government Bonds, or Bank Stock with a Covered Calls. He could then use the gain from that investment to pay off the tax owing. NOT following that advice is the path Barry followed. He kept the Billion dollars within Apotex thereby investing it within Apotex and in essence "Betting on Himself" Again what if Barry had taken that sound advice. Paid 1 Billion in Tax for the gain in Apoxtex but then 10 years later government policy changes or a cheaper competitor enters the market and Apotex goes Bankrupt. Then Barry has paid 1 Billion in Tax for a company that is worthless which means he essentially flushed a billion dollars down the toilet.

I hope this helps.