Often in power of attorney litigation, relationship issues between past or present attorneys may take centre stage, with the unfortunate consequence that the best interests of the donor of the power of attorney may get lost amid suspicions and accusations being thrown back and forth. This can often arise in situations where siblings are involved in a dispute regarding power of attorney for a parent, and, in fact, was the situation in the recent Ontario Court of Appeal decision in Vanier v Vanier, 2017 ONCA 561.
Background
At issue was the power of attorney for property of Rita, whose husband had predeceased her, leaving her his entire estate. She had three adult children: twin sons, Pierre and Raymond, and a daughter, Patricia. There was a power of attorney for property executed in 2011 naming Patricia. Unfortunately, Patricia allegedly took advantage of her role as Rita’s power of attorney for property, leading to litigation and a settlement. As a result, Rita executed a power of attorney for property in 2013 naming Pierre and Raymond, jointly and severally, as her attorneys for property (the “2013 POA”).
However, Pierre and Raymond became suspicious of each other, steps taken by each of them as Rita’s attorneys for property, and their relationship broke down. Issues arose in relation to Rita’s ability to access her money; in particular, Raymond had failed to cooperate in relation to unfreezing some corporate assets that had been frozen as part of the litigation with Patricia, and instructed Rita’s lawyer not to release settlement funds received from Patricia to Rita. Consequently Rita could not access funds to pay for basic living expenses, including rent at her retirement home. As a result, Pierre suggested that Rita take certain steps to facilitate access to her funds, including executing a power of attorney for property naming Pierre as her sole attorney for property, which Rita did in 2015 (the “2015 POA”).
Litigation and Appeal
Raymond brought an application seeking Pierre’s removal as attorney for property and a declaration that the 2015 POA was void. He also brought a motion seeking interim relief. The decision on the motion was appealed by Raymond, leading to this decision from the Court of Appeal. The Court considered 5 issues on appeal, but I will address only 1 of them for the purposes of this blog, being whether the motion judge erred in applying the wrong test for undue influence.
Proper Test for Undue Influence
Raymond argued that the proper test to be used was not the test for testamentary undue influence, but rather the test for inter vivos equitable undue influence, which would shift the onus of proving undue influence from Raymond, to Pierre, who would have to prove that Rita signed the 2015 POA willingly and without undue influence.
The Court of Appeal found that the application of the inter vivos test had not been argued before the motion judge, was a new issue raised on appeal, and, based on the general rule, the Appeal Court could not consider it. Moreover, there was no need for the Court to consider whether to grant leave to allow a new argument in this regard, as in any event, the inter vivos equitable undue influence test had no application on the facts.
In order to shift the burden of proof from the complainant (in this situation Raymond, arguing on behalf of Rita) to the other party (in this case, Pierre), two prerequisites must be met:
- The complainant reposed trust and confidence in the other party; and
- The transaction is not readily explicable by the parties’ relationship; the transaction is “immoderate and irrational”.
Pierre conceded that Rita did repose trust and confidence in him. However, the Court found that Rita’s decision to execute the 2015 POA was not “immoderate or irrational”. The Court noted that while the decision was emotionally difficult for Rita, it was totally rational. She knew that she was having issues accessing funds needed to pay her basic expenses. She also knew that some of Raymond’s actions had led to her inability to access those funds. The Court also found that the 2015 POA conferred little, if any, benefit on Pierre. Lastly, even if the inter vivos test applied, the Appeal Court held that the record did not support a finding of undue influence.
In conclusion, the Court of Appeal commented that it endorsed the words of the motion judge who had expressed the view that Raymond and Pierre had “lost sight of the fact that it is Rita’s best interests that must be served here, not their own pride, suspicions, authority or desires”, stating also that it hoped that in light of this decision, Rita’s sons would honour her wishes and end the litigation.
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