Tucker and Tucker Estate Will Challenge – Episode #149

February 10, 2009 Hull & Hull LLP Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , , 0 Comments

 

Listen to Tucker and Tucker Estate Will Challenge

This week on Hull on Estates Megan Connolly and Paul Trudelle discuss a decision that was released on January 21, 2009 on the Tucker and Tucker estate, involving a will challenge.
The sole issue was whether or not this particular will was valid.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

 

 

Tucker and Tucker Estate Will Challenge – Episode #149

Posted on February 10th, 2009 by Hull & Hull LLP

Paul Trudelle: Hi and welcome to Hull on Estates. You’re listening to episode 149 on Tuesday, February 10, 2009.

Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada.   Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.

Megan Connolly:  Hi, I’m Megan Connolly.

Paul Trudelle:  And I’m Paul Trudelle.

Megan Connolly:  And if you want to be heard on Hull on Estates, you can participate by leaving us a comment. E-mail us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Paul Trudelle:  And we always welcome your comments and questions or suggestions and we will respond to you as soon as we hear from you at either of those addresses.

Megan Connolly:  So today we’re talking about a decision that was released, when was it, January 21, 2009 on Tucker and Tucker Estate and this involved a Will challenge.

Paul Trudelle:  It was a Will challenge and it was interesting here because the Will was a formal Will executed by the deceased in front of witnesses, however the twist is that it was a Will that was prepared by a son of the deceased in his handwriting. Because it was duly executed before witnesses, it wasn’t considered a handwritten Will of the deceased. And the Court got into that as to whether it was to be accepted as a valid Will. That was the sole issue was whether the Will was valid.

Megan Connolly:  So I guess by way of background, Mrs. Tucker, who was the deceased, was predeceased by her husband and survived by three sons. Now when her husband was still alive, she had made a Will leaving everything to him and saying if he predeceased her, then it would go to her three sons in equal shares.

Paul Trudelle:  Right and that was in 1986. And then after her husband died, she re-did her Will with a lawyer. At that time, she appointed her one son, Richard, as her executor. And then she divided her residue amongst Richard as to 40%, William as to 40% and Donald as to 20%.

Megan Connolly:  And the explanation at the time for this division, and this was in 1994 she did that Will, was that Richard and William were around more and took care of her and as a result, I guess, she just wanted to leave them a greater share of her estate.

Paul Trudelle:  Right and that Will, the 1994 Will, went on to provide that Richard, the one son, was to be allowed to stay in the house for one year after death, assuming he paid all expenses. He was given a right of first refusal to purchase the property, at which time he would pay 60% of the appraised value, or he could rent out the house at a reduced rate with the proceeds being divided amongst the children upon sale as set out in the Will.

Megan Connolly:  And at the time the 1994 Will was made, it’s worth mentioning that Richard, I guess, had other roles with respect to her property. She opened a joint account with him, so he could help her pay the bills. She named him as her attorney for property and she also designated him as the beneficiary on a life insurance policy.

Paul Trudelle:  Right. Now time passed and we come up to 2004 and at that time, the testator made a new Will in which she changes the division of her estate. At that point she changes it so that rather than monies going to her son William, they’re going to go to William’s daughter as to the same percentages. And the reason for this was because William was on Social Assistance at the time and his entitlement would be affected if he was a beneficiary under the Will.

Megan Connolly:  Okay, its worth mentioning at this time, she seems to be on good terms with all of her children. Richard and William were living with her and there’s nothing in the case to suggest that William was at all upset that Christine, his daughter, would be getting his share.

Paul Trudelle:  That’s right, yes. More importantly here, or most importantly perhaps, that Will, the 2004 Will, the first 2004 Will, deleted the rights with respect to the property that were granted in the 1996 Will.

Megan Connolly:  Yeah, and I guess the other notable thing, well I’ll tell you why in a minute, is this Will was done by a lawyer, who I guess presumably met with and taken instructions from her and then completed the Will.

Paul Trudelle:  Yes. And shortly after that Will was made, the testator expressed some…it said that she expressed some issue with respect to the Will and another lawyer was called in to take instructions for preparing a new Will. And this other lawyer took instructions, however no formal instructions were received to complete a Will and he never opened the file and no formal Will was prepared by this other lawyer.

Megan Connolly:  And it may be just worthwhile quickly mentioning what the issue was, although it’s not completely clear what the rationale was in the decision. Apparently Mrs. Tucker learned and was surprised by the fact that Richard had right to the house under the 1994 Will and this was very, very distressing to her.

Paul Trudelle:  Yes, it said that learning that her son, Richard, had rights under the 1994 Will caused her great anxiety, stress and a violent angina attack. She was upset to learn about that and that led to her, it’s suggested, wanting to make changes with respect to her Will as it stood in 2004.

Megan Connolly:  So around this time, things were stressful and of course, they were all living together and there’s some discussion in the case how the relationship started to break down. Of course, William was very, very suspicious of Richard and I think there were arguments and finally Richard, I think, moved out.

Paul Trudelle:  That’s right. I think he moved out in May of ’04 according to the reported decision. Following him moving out of the house, William testified that he opened a new joint account with his mother and so he was made survivor of that bank account. He also says, William says, that he was unable to contact the lawyer who was contacted to prepare the Will. As a result of this, and in order to relieve his mother of stress, he took instructions from her and wrote a new Will for her and this led to the issue, the validity of that Will that was prepared by William, in William’s handwriting, and signed by the mother.

Megan Connolly:  And in this Will, Richard was removed as a beneficiary and the estate was divided equally amongst Donald, the son and Christine, William’s daughter. And I guess the circumstances are interesting. As Paul said, William literally wrote the Will for his mother. He then, I guess, gathered witnesses, two close family friends to come to the mother’s house so she could sign the Will. And he video-taped the execution of the Will.

Paul Trudelle:  And the video-tape here, I think, it’s important to note, was used by the Court and relied upon by the Court to find that the Will was duly executed. However the Court went on to make comments about the video-taping of the Will when it discussed the suspicious circumstances surrounding the Will and in fact the Court went as far as to say that the fact that the Will signing exercise was video-taped was in and of itself a suspicious circumstance. The Court states that if there were no concerns about health, capacity or influence, then there would be no video-tape.  And the Court went on to state “to watch the video-tape is almost to watch a play”.

Megan Connolly:  Right.

Paul Trudelle:  So with respect to that execution of that handwritten Will that was signed by the testator, that becomes the issue in this lawsuit. It was challenged by Richard. Just as an aside, though, it’s interesting to note that it wasn’t Richard himself who was challenging the Will. Richard had made an assignment in bankruptcy and it was his trustee who was challenging the Will. The trustee in bankruptcy would receive the assets that Richard would be entitled to under the prior Will.

Megan Connolly:  What I thought was interesting, though, is and it’s mentioned in the decision, the estate itself really wasn’t big at all. It said that it consisted only of the deceased’s principal residence and that had been sold for something less than $100,000. So given it appears that in the previous Will, Richard would have received what…about 40%. And when you look at the legal fees, he is looking at I guess a trustee in bankruptcy chasing after $40,000.

Paul Trudelle:  Right but still we have this trial and I’m just trying to see how long the trial went. It was heard over 5 days in 2008. It was a 5 day trial that would come into significant cost. You would think that the costs would outweigh the benefits however I presume this is something that the trustee in bankruptcy had to pursue on behalf of the creditors of Richard’s estate.

So the Court looked at the evidence that we’ve discussed and went on to consider whether the Will was validly executed or not. It relied on the landmark decision of Scott and Cousins that sets out the principles that are relevant and they are ably summarized in that decision. The Court also turned to Section 13 of the Evidence Act which requires that evidence be corroborated and considered whether there was any corroborating evidence.

Megan Connolly:  And that was a bit of a problem here because the only uninterested party who didn’t really have an interest in the outcome was one of the witnesses to the Will. And the Court said well sure, he came and witnessed the signing of the Will but he wasn’t privy to the preparation of the Will, he had no insights into the instructions she had given, the changes she wanted to make or why she would have done any of this. So the Court didn’t really find that his evidence had much in the way of probative value.

Paul Trudelle:  That’s correct. The Court felt that the key time that they had to consider was when the Will was drafted rather than when it was executed. And it went on to consider suspicious circumstances that existed at the time the Will was made and the Court itemized a number of suspicious circumstances that would lead one to question whether this was in fact a valid Will.

Megan Connolly:  So one of them had been that she suddenly made this Will excluding the child completely when in three previous Wills, she hadn’t done so.

Paul Trudelle:  Right. And in point of that fact, one of the Wills was made just before she made this handwritten Will so the sudden change in circumstances raised an eyebrow.

Megan Connolly:  Another issue was, of course, that she had that January 2004 Will where she had received legal advice. All of a sudden this new one Will comes in the absence of advice, when it was written by one of the sons and when it’s completely inconsistent with previous Wills.

Paul Trudelle:  That’s right. And that son, William, was found to reside full-time with his mother and in his testimony, he was, it appears to have an interest contrary and was adverse to his brother, who was left out of the Will. The Court found that that must have created a negative household atmosphere that would have been apparent to the testator.

Megan Connolly:  As far as the deceased’s physical health was, as mentioned before, she was in declining health. The Court also mentioned that she was on numerous types of drugs and other medication at the time the Will was drafted.

Paul Trudelle:  Right and as a result of that, her son William, was around 24-7 according to the report and that would give rise to a possibility of undue influence.

Megan Connolly:  And just going back to the issue of collaborative evidence, its worthwhile noting that Christine, William’s daughter, who was present when the Will was signed, and who was to receive 50% under the new Will, wasn’t called as a witness and that the Court mentioned without explanation really, that she was now estranged from her father as a result of these proceedings.

Paul Trudelle:  Right and I think it’s important to note that it’s not always the evidence that you are able to call; it’s also the evidence that you don’t call and adverse inferences can be made. We mentioned the suspicious circumstance regarding the video-tape itself. The Court goes on to state that the Will was in the son’s handwriting and they found that that was suspicious. The son had explained that the mother wasn’t able to, wouldn’t be able to write out the Will herself, although it went on to find that her signature, according to the video-tape, was done quickly and easily and therefore she probably could have drafted the Will herself if that’s what she wanted to do.

Megan Connolly:  Okay, so in case you haven’t figured it out by now, the Court found that this Will was not valid and that the earlier January 2004 Will was the valid Will.

Paul Trudelle:  Yes.

Megan Connolly:  So I guess that’s that.

Paul Trudelle:  So it’s an interesting case to read as far as, you know, each of these cases always turn on their own facts. But this is a very unique fact situation, however it’s quite instructive with respect to the issues surrounding the validity of a Will, the test that the Court will apply and how the Court will analyze facts that give rise to suspicious circumstances.

Megan Connolly:  Okay, well I think that brings us to the end of this week’s discussion. Thank you for listening and thanks for joining me today, Paul.

Paul Trudelle:  Thank you Megan.

Megan Connolly:  And we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estates law. 

We hope that you enjoyed the show. I’m Megan Connolly.

Paul Trudelle:  And I’m Paul Trudelle.

This has been Hull on Estates with the lawyers of Hull & Hull. 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 podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.

 

Our theme music is Upper Structure by DJ AKid  and is courtesy of the Podsafe Music Network.

 

 

 

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