Will Challenge Litigation – Part 10 – Hull on Estate and Succession Planning #135

October 21, 2008 Hull & Hull LLP Estate & Trust, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Litigation, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, TOPICS Tags: , , , , , , , , , , , , , 0 Comments

Listen to Will Challenge Litigation – Part 10

This week on Hull on Estates, Ian and Suzana discuss extraneous claims that can arise during a will challenge. In particular, they talk about propriety estoppel and other situations where someone worked to their detriment in the context of an estate dispute. For these kinds of claims, you require solid corroboration. Next week, Ian and Suzana will address the differences between quantum meruit and proprietary estoppel.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

Will Challenge Litigation Part 10 – Hull on Estate and Succession Planning – Podcast #135

Posted on October 21, 2008 by Hull & Hull LLP

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada. From the offices of Hull Estate Mediation in Toronto, here are Ian and Suzana.


Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening, and some of you may be watching, Episode 135 of our podcast on Tuesday, October 21st, 2008.

Ian Hull:  Hi, Suzana.


Suzana Popovic-Montag: Hi there, Ian. How are you today?

Ian Hull: Just great.

Suzana Popovic-Montag: That’s good.

Ian Hull: So, working through our Will challenge process and thinking about some of the other issues you want to consider when you’re doing a Will challenge, I thought it would be a good idea to talk a little bit about some of these extraneous claims which can actually turn out to be the elephant in the room, so to speak. So, why don’t we start with just a brief discussion on the concept of proprietary estoppel and how that gets dove-tailed into a Will challenge. So, first of all, why would we be putting this on the table even as an issue?

Suzana Popovic-Montag: And one of the reasons we’d be doing this, of course, is because of the fact that, when we’re doing a Will challenge we’re not necessarily sure, at the very beginning, just how successful our challenge is going to be. And so in an attempt to sort of hedge our bets as much as we can, we try to think of any other possible claims that we might be able to bring in conjunction with the Will challenge in the event that, for some reason, the challenge is unsuccessful. And we talked during our last podcast a little bit about the concept of quantum meruit, and I think that’s a nice segway for the whole discussion of proprietary estoppel, as well.

Ian Hull: Well, for sure, and let’s talk about what proprietary estoppel is. And we typically will bring these kinds of claims, only if it makes sense, because it doesn’t always pay to simply add to the costs and the burdens of running a Will challenge. But the concept of proprietary estoppel does stem from the whole thinking that if you are aggrieved, and you haven’t received under the estate as you thought you might. A typical Will challenge is obviously when a child gets written out of a Will and that is, of course, a situation where the child would think that they have been aggrieved. In this case of proprietary estoppel is one where promises are made by, say, an easy example of a proprietary estoppel claim might be some of the classic British cases where someone comes to assist an elderly individual, and one of the leading cases was an elderly woman who had a fairly vast property and needed care, not for herself, but looking after the property, and a gentleman and a neighbour in the town assisted her. She was assisted on the basis that he would come fairly regularly, two or three days a week. He’d cut the grass, fixed things, and so on. It was an old property and needed lots of work. And throughout this time period, she would constantly say to him, look, I can’t pay you now, I’m land rich and cash poor, but don’t worry, because when I die, you’ll be looked after. And she went so far as to say, one day, this will all be yours. Now this story is not entirely uncommon and lots of cases we see, that one day this will all be yours statement made.  And in the proprietary estoppel world and the quantum meruit world, as you say, that case can be very seriously pursued in the Courts. And the Courts will embrace the fact that this poor gentleman has worked to his detriment.

Suzana Popovic-Montag: And the claim, Ian, really is an equitable one. So a Court is going to look at the factual situation and they’re going to, perhaps if there is a Will, they will say well, notwithstanding the terms of the Will, this was a set of egregious circumstances where someone has provided a service for someone, to his or her detriment, on the expectation that they be compensated and yet, at the end of the day, they’re not. And so how do we rectify that situation? And by virtue of this claim, and it is, in fact, a cause of action, the claim for proprietary estoppel, you can make this allegation. And I think what you said originally about the fact that we want to be very careful in the extra claims that we pursue during a Will challenge. It’s important to recognize the fact that strategically, we want to make sure that we don’t look like we’re just sort of all over the place.  So if we’ve got what we think to be a strong Will challenge, coupled with a strong claim for proprietary estoppel, I think strategically there’s a lot to be said about that kind of focused pursuit.

Ian Hull: And you know, as you say, it really just comes down to the Court looking at this and saying, has someone been unjustly enriched? And that is pretty well the threshold question that happens, practically speaking, in every Will challenge. Has one side of the family or one individual been unjustly enriched to the detriment of the other? And the key with the proprietary estoppel cases, is as you say, that we want to pursue them when it makes sense. We’re not, in our firm, big proponents of throwing everything at the wall and seeing what sticks. We find it deludes our claim, because we can say to the people, well look, with vim and vigor, this kind of claim will or may well succeed. 

So, the fundamental point of law that we need to keep in mind, though, when we pursue these claims, are two-fold. One is the question of corroboration which I want to talk about, and the second is that you act to your detriment. You have to show that you did indeed come and cut the grass and come and look after the premises on a what would be seen as more than just a friendly, one-off basis. And the other aspect of it is, of course, this idea that you’re not going to succeed with this claim without good, solid corroboration, and that’s meaning supportive evidence from a third-party source that isn’t just your mother saying, that’s what happened. It’s sourced from an independent party, for example, the minister in town may have overheard this nice gentleman while he was talking to this nice elderly lady who, at that point, said, gee, thank you again for coming, this is the third time you’ve come this week, boy you’re spending a lot of time, don’t worry, I know you’re going to be looked after, one day this will all be yours.

Suzana Popovic-Montag: And that really is very important in these kinds of claims, because otherwise, they are quite self-serving. And I know we’ve talked on previous podcasts about the need for corroboration, and this one, I think, particularly calls out for that kind of evidence because the other side is simply going to say, prove it, and you’ve got to do so.

Ian Hull: And the concept of corroboration, and my final thought on that is, it’s so strongly entrenched in the laws in any civil jurisdiction in Canada and in the United States, and it is set out in most of the statutes, most of the evidence statutes, it’s set out in that as well.  So there is such an importance placed by the Courts on this outside evidence to support it, so that you don’t just have people standing up in Court saying, these things were said, and not having the one person, who is the one who said it, around, and taking advantage of the death, so to speak. The Courts won’t tolerate it and legislatures have said that they won’t tolerate it and that’s why they put the statutes in. 

So our next aspect of this whole idea of proprietary estoppel is quantum meruit.  And the distinction, I think, is very important to make, because of the difference of the result. And I think in our next podcast we’ll talk a little bit about the quantum meruit concept and talk a lot about why there is such an important distinction between the two and why you may want to pursue proprietary estoppel or both, but keeping your eye on the ball, so to speak, because of the result, not as much as because of the case. So we remind everyone please, feel free to call in at 206-457-1985. Give us your comments and your feedback. The social media world, we embrace it, and we’d really love to hear from you.

Suzana Popovic-Montag: And of course, we invite you to visit our blog at estatelaw.hullandhull.com or, if you prefer to e-mail us at hullandhull@gmail.com. Thanks very much, Ian.

Ian Hull: Thanks, Suzana.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.


To listen to other Hull On podcasts, or to leave any questions or comments, please visit our website at hullestatemediation.com.



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