Tag: capacity

18 Jun

Scrutinizing Evidence in a Will Challenge

Hull & Hull LLP Capacity, Estate & Trust, Litigation Tags: , , , , , , , , , 0 Comments

The recent case of Re Henry (2009) CanLII 12329 (ON S.C.) is an excellent illustration of how a court scrutinizes evidence in a will challenge. 

In Re Henry, the deceased died on May 28, 2005.  Two weeks earlier, on May 12, 2005, he had made a Will designating his second wife as his sole beneficiary.  The deceased’s son from a prior marriage challenged the will on the grounds of undue influence, lack of testamentary capacity and lack of knowledge and approval of the contents of the will.   

The trial judge found in favour of the second wife on all issues: due execution was shown, the deceased had testamentary capacity along with full knowledge and approval of the contents of the will.  The challenger’s evidence, which consisted largely of his and his sister’s testimony, did not bear scrutiny: some of it was inadmissible, testimony appeared reconstructed as opposed to remembered, testimony contained factual inconsistencies, legal submissions contained errors of law and so on.  By contrast, the evidence brought by the second wife was accepted in whole.

No new law is generated in Re Henry, at least not per se.  But there is a concise consideration of the applicable standard of proof which will be helpful for any lawyer making submissions regarding evidence in a will challenge.  Newbould J. points out that the principle in Vout v. Hay, [1995] S.C.R. 6 that evidence of suspicious circumstances must "be scrutinized in accordance with the gravity of the suspicion" may no longer be good law as a result of F.H. v. McDougall, 2008 S.C.C. 53.  F.H. v. McDougall states "[t]here is only one legal rule and that is in all cases, evidence must be scrutinized with care by the trial judge."  So which is it: Vout v. Hay or F.H. v McDougall

Having laid out the jurisprudence, Justice Newbould states:

"I need not decide in this case whether the passage from Vout v. Hay that I have referred to is still good law because in my view the evidence is the same regardless of whether the evidence is scrutinized with greater care in accordance with the gravity of the suspicious circumstances.  I have taken care to scrutinize all of the evidence".

Have a great day,

Chris Graham

 

 

15 Apr

The Millionaire, His Mistress, His Will & the ex-Governor

Hull & Hull LLP Capacity, Estate & Trust, In the News, Litigation Tags: , , , , , , , 0 Comments

A current Georgia case vividly illustrates the legal, emotional and moral complexity often involved in estates litigation.  According to the reports, Harvey Strother died at age 78, having succumbed to progressively severe alcoholism brought on by the tragic death of his daughter at age 23.  Strother had built up a formidable nest of car dealerships around Georgia, dying with a net worth of about US$37 million.  And a mistress 30 years his junior. 

At issue are 3 amendments to Strother’s 1988 will in favour of his mistress.  The will had left the bulk of his estate to his wife, their children and grandchildren.  But one amendment gave his mistress a $7,900 monthly allowance, a second gave her health insurance and an island condo in Florida.   The third – signed about a month before Strother’s death – gave her a Cape Cod cottage, a Florida boat slip and a Florida condo to her son.  By that time Strother was drinking 1.5 gallons of wine a day (about 6.8 liters, or 9 bottles of wine).

At trial, the jury upheld the first two amendments, worth about $4.5 million to the mistress.  However, the third one was invalid.  Strother, was allegedly drinking even before he signed it and brought to the lawyer’s office by his mistress, and his signature was illegible. 

The family is appealing the two amendments that were upheld, one on the basis that the witnesses were not even present (the mistress is appealing the third amendment struck out by the jury).  Interestingly, the family is represented by Georgia’s ex-Governor Roy Barnes, who points out that the requirement for two witnesses "is an elementary part of the law that has been there since the time of Edward II."  FYI, King Edward II, 1284 – 1327: yes, we deal with old law in estates litigation. 

Have a great day,

Chris Graham

02 Mar

The Concept of Capacity

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I recently learned that an old neighbour of mine was residing in a long-term care facility and I decided to visit him.  As a child, I remember my neighbour would often come out to join us in a pick up game of baseball or street-hockey.  Having known my neighbour to be a strong and vibrant individual, and despite having prepared myself, it was nonetheless disarming for me to see him in need of assistance and so dependent on others. Although, in my practice, I have cause to consider the issue of capacity almost daily, this experience caused me to reflect on the issue in a much more personal fashion.

Lawyers, particularly in our area of practice, are often required to consider capacity issues and it is easy to allow our personal views to affect our analysis.   For instance, if my neighbour left his entire estate equally among his three children, in most circumstances we would presume he had capacity.  However, if he left his estate to his caregiver, to the exclusion of his children, most of us would be inclined to conclude that he had either acted for want of capacity or was perhaps coerced to make a Will while vulnerable to undue influence.  

People do not typically become incapacitated overnight, except in circumstances where a catastrophic event has occurred.   Capacity to make a Will has been described as knowing and understanding the nature and effect of your dispositions and understanding who would be the natural persons to enjoy the bounty of their estate.

In making this determination, if there is any doubt regarding a client’s capacity it is surely advisable to obtain the appropriate capacity assessment in the circumstances.

Have a great week! 

 

Rick Bickhram

09 Dec

Guardianship in Canada – Hull on Estate and Succession Planning

Hull & Hull LLP Beneficiary Designations, Capacity, Estate & Trust, Ethical Issues, Guardianship, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, TOPICS Tags: , , , , , , , , , , , , , , , , , , 0 Comments

 

Listen to Guardianship in Canada

This week on Hull on Estate and Succession Planning, Suzana Popovic-Montag speaks with Rodney Hull about how the law has changed in Canada as it pertains to the appointment of guardians. Rodney suggests that today’s laws (post-1994) are clearer than they were in the past.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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27 Nov

Further Musings on s.35.1 of the S.D.A.

Hull & Hull LLP Capacity, Estate & Trust, Trustees Tags: , , , , , 0 Comments

On Tuesday of this week, I blogged on s.35.1 of the Substitute Decisions Act.  This section of the Act provides that a guardian of property for an incapable person has an obligation to preserve property that is subject to a specific legacy in the incapable person’s Will unless that property must be used to fund the needs of the incapable person.  As I noted, litigation can ensue on the death of the incapable person if a disappointed beneficiary is not in receipt of his or her legacy.  The disappointed beneficiary must demonstrate that the guardian knew or ought to have known the contents of the incapable person’s Will.  While the Act itself  provides an imperative in this regard, it is not at all clear what other evidence would be admissible.  Specifically, the notes and records of the solicitor who drew the incapable person’s Will may shed some light on whether the guardian knew of the contents of the Will.  The question, of course, is whether such solicitor’s notes are privileged.

In a conventional will challenge, little thought is given to the potentially sticky issue of privilege.  Indeed, solicitor’s notes and records are produced as a matter of course when the validity of a Will is challenged.  But when the notes are sought, not to challenge the Will but, rather, to establish the knowledge of someone other than the testator as to the contents of the Will, it is not at all clear whether privilege would be waived by the Court.  

As a corollary to the entitlement of a beneficiary under a Will to make enquiry under s.35.1, a recent decision which Megan Connolly blogged on supports the obligation of a guardian (who is also an estate trustee) to account to such beneficiaries.

David M. Smith

 

 

 

 

 

25 Nov

Direct and Indirect Approaches to Estate Planning – Part 1

Hull & Hull LLP Beneficiary Designations, Capacity, Estate & Trust, Estate Planning, Executors and Trustees, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Litigation, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, TOPICS Tags: , , , , , , , , , , , , , , , , , , , 0 Comments

 

Listen to Direct and Indirect Approaches to Estate Planning – Part 1

This week on Hull on Estate and Succession Planning, Ian and Suzana start a discussion on their global philosophy toward the estate planning process. There are direct and indirect approaches to capacity and estate planning and in this episode, Ian and Suzana explore these approaches as they pertain to the choice of attorney.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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25 Nov

One Nexus of Capacity Litigation and Estate Litigation

Hull & Hull LLP Capacity, Estate & Trust, Litigation, Trustees Tags: , , , , , , , 0 Comments

Section 35 of the Substitute Decisions Act ("Act") states that "a guardian of property shall not dispose of property that the guardian knows is subject to a specific testamentary gift in the incapable person’s will."  And under s 33.1 of the Act, a guardian of property needs to make reasonable efforts to determine "whether the incapable person has a Will" and, if so, "what the provisions of the Will are."

Under the authority of these sections of the Act, a beneficiary of a specific testamentary gift can legitimately make enquiry into the actions of the guardian who, more often than not, is also the estate trustee under the Will.  Take, for instance, a demonstrative legacy of a bank account at a specific financial institution.  If the account is no longer in existence at the date of death, the legacy will usually be subject to ademption: the gift has failed because the account was closed before the date of death.  But what if the account was accessed by the guardian either: (i)  for his own purposes or (ii) for the care of the incapable person when there where other assets available to fund the care of the incapable person?  In such a situation, the beneficiary of the account under the Will may seek redress. 

To prove his or her case, the beneficiary will seek an accounting from the guardian in order to ascertain to what extent his or her beneficial entitlement was wrongfully encroached upon in breach of the Act.  Given the imperative under s. 33.1 of the Act, it questionable whether the guardian/estate trustee could ever  successfully argue ignorance of the terms of the Will as a defence to such claim.

 David M. Smith

21 Oct

The Interrelationship Between a Guardian of Property and a Trustee Under a Testamentary Trust – Hull on Estates Podcast # 133

Hull & Hull LLP Beneficiary Designations, Capacity, Estate & Trust, Guardianship, Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes, TOPICS Tags: , , , , , , , , , , , , , , , , 0 Comments

 

Listen to:

The Interrelationship Between a Guardian of Property and a Trustee Under a Testamentary Trust

This week on Hull on Estates, Rick Bickhram and David M. Smith discuss the complications that can arise when an incapable person is both the subject of a guardianship order and the beneficiary of a testamentary trust.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

 

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14 Oct

Testamentary Capacity Issues – Hull on Estates #132

Hull & Hull LLP Capacity, Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes, TOPICS Tags: , , , , , , , , , , 0 Comments

Listen to Testamentary Capacity Issues

This week on Hull on Estates, Paul Trudelle and Natalia Angelini discuss testamentary capacity issues as they arise in estate matters. Wills require the highest level of capacity and testators need to demonstrate that they are of a sound and disposing mind.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

09 Oct

SECTION 3 COUNSEL: A CATCH-22

Hull & Hull LLP Capacity, Estate & Trust Tags: , , , , , , , , , , , , , , , 0 Comments

Pursuant to Section 3 of the Substitute Decision Act, the court may direct the PGT to arrange for legal representation for a person whose capacity is in issue in a proceeding under the SDA. The SDA further states that the person so represented shall be deemed to have capacity to retain and instruct counsel. However, section 3 counsel’s position and role remains somewhat murky. In Banton v. Banton, the court considered the import of an incapable person being deemed capable to retain and instruct counsel. 

The court recognized that the position of section 3 counsel is “potentially one of considerable difficulty”. However, the court did not believe that section 3 counsel was in the position of a litigation guardian with authority to make decisions in the incapable person’s interest. According to the court, counsel must take instructions from his/her client and “must not act if satisfied that capacity to give instructions is lacking”. A very high degree of professionalism may be required in borderline cases where it is possible the incapable person’s wishes may be in conflict with his/her best interests and counsel’s duty to the court. The phrase offers precious little guidance to section 3 counsel, but does sound a cautionary note. In the circumstances, perhaps the best advice is for section 3 counsel to fully explain the situation to the court and ask the court’s advice and direction. 

 

Finally, as an aside, the Ontario Government has now introduced legislation that would allow people to apologize with impunity. In other words, an apology will not be held against you in court. The hope is that “The Apology Act” will go a long way to defusing a contentious situation before litigation results. Sorry may, in fact, go a long way.

 

As always, thanks for reading.

 

Justin

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