A September 8, 2009 endorsement of Justice D.M. Brown helps to clarify the costs of capacity litigation.
Fiacco v. Lombardi, 2009 CanLII 46170 (ON S.C.) involves four siblings who disputed the management of their mother’s property. She executed a continuing power of attorney for property appointing all four of her children as her attorneys to act jointly. That didn’t go so well.
The mother suffers from dementia. In 2008, the four children entered into contested guardianship litigation over their mother; two were appointed guardians by on January 23, 2009 by Order of Cameron J. That round of litigation cost the mother $30,022.22.
The two children who were not appointed were ordered to provide information about their mother’s assets and the original will of their mother to the guardians, and to transfer assets to the guardians. They did not act quickly.
Justice Brown states, at paragraph 14, that “The view…that the Order did not require compliance forthwith was dead wrong: when a court appoints guardians of the property of an incapable person, any other person with notice of the order is required to deliver up immediately to the guardians all property of the incapable person that he or she might possess.”
At paragraph 10, His Honour states that the “respondents acted contrary to their obligations under the SDA [Substitute Decisions Act] and they obstructed their mother’s guardians in discharging their statutory duties.”
The SDA at sections 33.1 requires guardians to make reasonable efforts to determine if an incapable person has a will; and sections 33.2(1) and (2) require a person who has the incapable person’s will to deliver it to the guardian “when required by the guardian.”
The Court did not approve of the children seeking further funds ($29,154.14) from their mother’s estate to “fund their continuing sibling rivalry.”
Justice Brown emphasized that “capacity litigation should reflect the basic purpose of the SDA – to protect the property of a person found to be incapable and to ensure that such property is managed wisely so that it provides a stream of income to support the needs of the incapable person: SDA, sections 32(1) and 37.”
His Honour states that members of the Bar should not presume that all parties to contested capacity litigation will have their costs paid by the estate of the incapable person.
This endorsement emphasizes that family fights cost everyone involved.
Enjoy the weekend.
Jonathan Morse – Click here for more information on Jonathan Morse.
It appears that the matter may now be at an end. On Tuesday, a South Carolina judge approved a settlement that gives nearly half of his estate to a charitable trust, a quarter to his wife and young son, and a quarter to his six adult children, according to an Associated Press report on the Macleans.ca website.
James Brown died on December 25, 2006. Numerous issues arose following his death. There were allegations of improper management of his estate; a dispute over where and how to bury his body; and an issue as to the entitlement of his wife and son, both of whom came along after his will was made in 2000.
The exact size of the Godfather of Soul’s estate is unknown. His estate was said to be valued at $80m, but subject to substantial debt.
The settlement was reached in January 2009, but the court refused to approve the settlement, and required further information. That approval was granted on Tuesday.
But wait! There may be an encore. There are pending lawsuits by the prior estate administrators, and a former employee. We may not have heard the last of this matter.
Thank you for reading, and have a great weekend.
Entertainment media has recently focused its eye on the death of celebrity pop-icon, Anna Nicole Smith. In one of last week’s blog entries Megan Connolly commented on the estate litigation left in her wake.
Today I wish to discuss another personality whose death has made headlines – legendary soul singer, James Brown.
Brown sadly died of heart failure on December 25, 2006. Although it has been almost eight weeks since his death, his body has yet to be buried. This is reportedly due to a dispute between relatives and his former partner, Tommie Rae Hynie over burial procedures and rights to the assets of the estate.
Brown’s Will excludes Hynie and their 5-year-old son. Hynie maintains that she is Brown’s widow and ought to receive half of his estate. Brown’s attorneys claim that the marriage was not official because Hynie was married to another man at the time.
If Brown and Hynie’s marriage is not ultimately recognized, she may be awarded nothing from the estate. Their son, on the other hand, will most likely be entitled to share in the portion of the estate gifted to Brown’s other six children.
It will be interesting to see how and when this dispute resolves itself so that Brown can at long last receive a proper burial. Until then, as the National Post reports, Brown’s body will be held in a temporary crypt in an undisclosed location.