Will Challenge Litigation – Part 9 – Hull on Estate and Succession Planning

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Listen to Will Challenge Litigation – Part 9

This week on Hull on Estates, Ian and Suzana discuss other claims that can be made concurrent to a classic will challenge. In particular, they talk about quantum meruit claims and how these can be interpreted differently depending on the situation.

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 9 – Hull on Estate and Succession Planning – Podcast #134

Posted on October 14, 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 to Episode 134 of our podcast on Tuesday, October 14th, 2008.

Ian Hull:  Hi, Suzana.


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

Ian Hull: Great.

Suzana Popovic-Montag: That’s good.

Ian Hull: So, we were developing some of the, what we seem to be at now, is the sophisticated issues, some of the, which aren’t all that complicated, but they’re sophisticated issues that are tied into a classic Will challenge and what our clients can expect on either side, defending or propounding or upholding the Will. And we promised that we’d talk about today a development that kind of stems from the corporate issues that we talked about in our last podcast, and that is some of the other claims that can be made that are equally important, that aren’t falling directly in the whole closet of a Will challenge proceeding, but are often pursued concurrent, or at the same time literally, as the Will challenge proceedings. 

So let’s start with the classic, the one that was developed in Canada and throughout the U.K. in the mid-1900s, and that is the concept of quantum meruit.

Suzana Popovic-Montag: And that, of course Ian, I think you’re referring to the fact that a claim can be made against an estate on behalf of someone who says that during the lifetime of the deceased, I provided him or her with services for which, now that they’ve passed away, I should be compensated for.

Ian Hull: And that came out of a case in Canada, the Degelmena case, and that case, it’s a great story because what happened there, and the Courts saw this story unfold.  This nice gentleman acted, helped a woman out and performed day-to-day services for that woman, cutting the grass, looking after her affairs and so forth, almost handymanish kind of work, but a lot. And the Court said, and throughout his lifetime he appeared to be under the impression that he was going to be looked after, because the comments from this nice widow were, you will be looked after, don’t worry. He was never paid during it, so he worked away at this. And quite frankly, ultimately, he wasn’t looked after. And the Court looked at this problem and struggled with it and it’s an interesting development, because we’re going to go from the concept to quantum meruit, all the way through to the concepts of proprietary estoppel, all of which sort of tie in together. But staying with the quantum meruit claim, the Court said this isn’t right, we’re not going to let this happen, you can’t do this to people. They can’t be expected to have worked for free. And so the Court imposed what they call quantum meruit; that is, paid for work and services provided.

Suzana Popovic-Montag: That’s right. And you know, we’ve looked at the cases and we know that these are very difficult cases to predict the result of and that’s because there’s such a subjective component to the evidence that a judge is going to hear, and to the evidence, of course, that’s going to be led, and to what ultimately, I think, in fairness, a judge says, yeah that is what would be fair in the circumstances. 

Ian Hull: And in coming through that analysis in the quantum meruit context, the Courts we find, are typically looking at an hourly wage analysis. They say, well, how long did you work, how many hours a day did you work? Taking it outside of the case that we’ve just talked about, taking it into a situation where a daughter and a mother are alive, and the daughter is the dutiful daughter and works hours on end, does healthcare help, does financial care help, all of those things that we talk about in Power of Attorney fights and how we get compensated, but more importantly, gets into the same scenario and doesn’t get paid. Well that angle, in the context of quantum meruit, the daughter would naturally want to say listen, I want to make a claim and they’d come to see us and say, I want to make a claim. There’s a big difference here. We talked about our first case and that was the work of a handyman, a third party, maybe friend, but not a family member, not a close family member. Now in the second illustration I’m talking about is a daughter and mother. How do the Courts react to that scenario as opposed to the handyman scenario?

Suzana Popovic-Montag: Well as you can imagine, I think a judge will be more reluctant to recognize the services rendered by someone who’s a family member than someone who’s a third party. And the reason for that is simply because of all of our expectations in society that children do take care of parents or that parents will take care of children in reciprocity. And so, in that situation, it really becomes, I would suggest, a question of the evidence. What kind of evidence can you demonstrate or lead to show the judge that yes, this was dutiful work that would have had to have been provided to mom but someone, if it wasn’t dutiful daughter, would have had to provide for and mom would have had to pay for. This brings you back to the question of what kind of records do you have? How can you demonstrate that there was X number of hours that ought to be paid on a certain basis? These are not easy claims really to pursue, but I think they are important ones in a lot of circumstances.

Ian Hull: And they really are and I mean, I’ll say it once and I’ll say it again, people don’t remember this, but sometimes, is that judges are people too.

Suzana Popovic-Montag: That’s right.

Ian Hull: And they sit there and they say, they see a case like this, and we’re talking about the daughter-mother scenario, and they say, they struggle, because they say, you know what, that’s what kids are supposed to do. Now naturally, that’s the natural order of life sort of thing.  And then they balance it against, like you say, well if the child hadn’t done it, she would have had to have had an independent third party do it, and they’ll go out and they’ll test the market. They’ll expect counsel at these trials to have put to them details of what’s the market rate, what would that have been, what is a duty care nurse or what is a person to cut the lawn scenario. And so, it’s really as you say, it’s a tough case. When you’re doing it, you almost never remember to keep good records, because you’re doing it for your mom, because you’re also doing it, or the handyman scenario, you’re doing it because you were promised that it was going to be okay and that you would be looked after. And when the day of reckoning comes and the Will doesn’t look after you, obviously disappointment comes, and you have to scrounge around and collect your evidence at a time that it may be too late.

Suzana Popovic-Montag: Another thing that’s particularly difficult I find in these situations is that they can tend to be very emotional pieces of litigation, and the reason for that is because typically it’s another family member that’s saying, you shouldn’t have done that. It’s the brother saying, you know what, you were living with mom, you were living off her back anyways, you should have been providing these services, and that’s just not always the case. And so when you add that emotional element to the difficulty, of course, in finding the evidence to support these kinds of claims, they really can be difficult.

Ian Hull: Absolutely. And so having said that, as difficult as they are, it’s an element of the process. And when someone comes to see us about a Will challenge, there’s a bit of a checklist that we like to go through, whether it’s defending or propounding, and the first one is how good is your case in the Will challenge. And we go through that, and we’ve already talked about that in previous contexts and previous podcasts. Then we say, okay, can we supplement your case with a claim like this, to add on, to layer on the pressure to the other side, and then, or vice versa, are we going to be faced with that kind of claim. If you’re going to say, and a classic scenario that the child has been written out of the Will and gets nothing, well it’s not always a full stop there. And a quantum meruit claim might be the kind of claim you would consider layering on, to help bolster your position, and it’s a strategic position on either side. 

So, I think that’s a really good illustration of where these tangential claims get made in the context of the overall Will challenge proceeding. There are many other ones worth considering, and there are some creative ones as well. But from our standpoint anyway, that’s the starting point. And that’s the quantum meruit claim. There’s probably three or four other ones that are worth considering that are appropriate layering on. And that one, the next one that we could consider is, of course, the concept of proprietary estoppel, because it’s an extension of quantum meruit. And the proprietary estoppel claims, I think, are, well they’re very, very much used in the U.K. and I think are an interesting tool that we want to talk about. And I think what we’ll do is, we’ll spend some time in our next podcast talking about the expanded claim essentially of the quantum meruit , and that is, proprietary estoppel. So we’ll look forward to that podcast.

Suzana Popovic-Montag: Absolutely. Thanks very much, Ian. Just a reminder to our listeners, to feel free to provide us with any feedback you might have on our podcasts at hullandhull@gmail.com.

Ian Hull: And please feel free to call in at 206-457-1985. Thanks, Suzana.

Suzana Popovic-Montag: Thanks, Ian.

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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