Tis the season of goblins and ghouls, of ghosts and gremlins, when the boundaries between the natural and supernatural become ever so slightly blurred. Pure fiction, no doubt…or is it? Well, yes, most likely. However, as Mark Twain famously opined, truth can often be stranger than fiction. Consider the following story that’s part Dr. Jekyll and Mr. Hyde and part Twilight Zone, one that presents a curious scenario to the estate litigators among us.
Lawrence Bader was a salesman from Akron, Ohio. One afternoon in May 1957, Mr. Bader rented a boat to go fishing on Lake Erie and told his wife that would be back later that evening. A few days earlier, Mr. Bader had recently designated his wife as a beneficiary on several life insurance policies totaling approximately $40,000.
Severe storms engulfed the area the night of Mr. Bader’s expedition, and he did not return home as promised. The following morning, the Coast Guard discovered his empty fishing boat, bruised and battered by the storm and washed up on shore miles from where he had departed. There was no sign of Mr. Bader. He was presumed “lost at sea.”’
In 1960, following an application from his wife, the probate court in Summit County, Ohio declared Mr. Bader legally deceased. Similar authority is granted to courts in Ontario. The Declarations of Death Act allows an “interested person” to apply to the court for an order that an individual has died if the individual “disappeared in circumstances of peril” and the applicant has “no reason to believe that the individual is alive.” Accordingly, Mr. Bader might reasonably have been declared deceased by an Ontario court under similar circumstances.
The intriguing tale of Mr. Bader’s whereabouts does not end there, however. In 1965, more than five years after he was declared legally deceased, a friend of Mr. Bader’s was attending a sports convention in Chicago and encountered an archery enthusiast who bore an uncanny resemblance to Mr. Bader. In an almost clichéd homage to classic horror and science fiction, the doppelganger purportedly wore an eyepatch and sported a mustache.
The doppelganger introduced himself as Fritz Johnson, a media personality from Omaha, Nebraska. After speaking to him over the phone at the insistence of the friend, Mr. Bader’s brothers flew to Chicago to meet the man they firmly believed was their brother. However, the doppelganger appeared to have no memory of his wife and family, his seafaring escapade, or indeed any details of his former life.
Mr. Johnson had purportedly arrived in Omaha only a few days after Mr. Bader had disappeared. In the years since his apparent alter-ego was declared legally deceased, Mr. Johnson married, fathered a son, became a newscaster, and developed a talent for archery. Curiously, Mr. Bader’s brothers confirmed that he had been regarded as a skilled archer prior to his disappearance.
To Mr. Johnson’s dismay, the authorities confirmed by way of a fingerprint analysis that Mr. Bader and Mr. Johnson were indeed one and the same, notwithstanding that the latter apparently had no memory of the former. They surmised that the entire ordeal was merely an attempt by Mr. Bader to get a fresh start, free of debts and obligations, under a new identity. While this story is likely more hucksterism than it is Hitchcock, there are useful points to discuss.
As estate litigators, our primary area of interest with respect to the Bader-Johnson conundrum would, no doubt, pertain to the distribution of Mr. Bader’s estate. In particular, it is worth discussing what happens to the estate of an individual who later turns up alive, especially if distributions in accordance with a will, for example, had been made prior to his return. For those of us who don’t anticipate an undead doppelganger reappearing to cause turmoil for our estate trustees, the approach is fairly streamlined.
Ontario’s Declarations of Death Act provides a mechanism whereby the court can order that the property of an individual, who was declared deceased by the court, be returned to them if they later turn up alive. Section 6(1) of the Act provides that all distributions out of the estate of an individual who is declared deceased thereunder are final distributions, subject to certain considerations. One such consideration, under section 6(3), provides that a court may make an order requiring the beneficiary to re-convey to the deceased all or part of any property distributed to him or her “if it is just to do so”. In other words, a beneficiary of the estate of a now-undead person that has received a distribution out of that estate may be ordered to return all or part of it.
Despite Mr. Johnson’s insistence to the contrary, there was substantial evidence to support that he was, in fact, Mr. Bader, even though he purportedly had no memory of him. While he ostensibly returned from the dead under a pseudonym and having suffered a bout of amnesia, neither are factors that an Ontario court would likely consider in determining what would happen to his estate.
On Thursday, we will look at similar provisions under Ontario’s Absentees Act.
Thanks for reading. Happy Halloween!