Tag: challenge

11 Apr

Should the drafting lawyer represent the estate in a will challenge?

Stuart Clark Estate Litigation Tags: , , , , , , , , , , , , , , , , , , , , , , , 0 Comments

It is not uncommon for the lawyer who drafted a testator’s will or codicil to subsequently be retained by the Estate Trustees after the testator’s death to assist with the administration of the estate. The rationale behind the drafting lawyer being retained to assist with the administration of the estate appears fairly self-evident, for as the drafting lawyer likely has an intimate knowledge of the testator’s estate plan and assets they may be in a better position than most to assist with the administration of the estate.

While retaining the drafting lawyer to assist with the administration of the estate is fairly uncontroversial in most situations, circumstances could become more complicated if there has been a challenge to the validity of the testamentary document prepared by the drafting lawyer. If a proceeding has been commenced challenging the validity of the testamentary document, there is an extremely high likelihood that the drafting lawyer’s notes and records will be produced as evidence, and that the drafting lawyer will be called as a non-party witness as part of the discovery process. If the matter should proceed all the way to trial, there is also an extremely high likelihood that the drafting lawyer would be called as a witness at trial. As the drafting lawyer would personally have a role to play in any court process challenging the validity of the will, questions emerge regarding whether it would be proper for the drafting lawyer to continue to represent any party in the will challenge, or would doing so place the drafting lawyer in a conflict of interest?

Rule 3.4-1 of the Law Society of Ontario’s Rules of Professional Conduct provides that a lawyer shall not act or continue to act where there is a conflict of interest. In the case of a drafting lawyer representing a party in a will challenge for a will that they prepared, an argument could be raised that the drafting lawyer is in an inherent position of conflict, as the drafting lawyer may be unable to look out for the best interests of their client while at the same time looking out for their own interests when being called as a witness or producing their file. There is also the potentially awkward situation of the drafting lawyer having to call themselves as a witness, and the associated logistical quagmire of how the lawyer would put questions to themselves.

The issue of whether a drafting lawyer would be in a conflict of interest in representing a party in a will challenge was dealt with in Dale v. Prentice, 2015 ONSC 1611. In such a decision, the party challenging the validity of the will brought a motion to remove the drafting lawyer as the lawyer of record for the propounder of the will, alleging they were in a conflict of interest. The court ultimately agreed that the drafting lawyer was in a conflict of interest, and ordered that the drafting lawyer be removed as the lawyer of record. In coming to such a conclusion, the court states:

There is a significant likelihood of a real conflict arising.  Counsel for the estate is propounding a Will prepared by his office.  The preparation and execution of Wills are legal services, reserved to those who are properly licensed to practise law.  Counsel’s ability to objectively and independently assess the evidence will necessarily be affected by his interest in having his firm’s legal services found to have been properly provided.” [emphasis added]

Decisions such as Dale v. Prentice suggest that a lawyer may be unable to represent any party in a will challenge for a will that was prepared by their office as they may be in a conflict of interest. Should the circumstance arise where the drafting lawyer is retained to assist with the administration of the estate, and subsequent to being retained someone challenges the validity of the Will, it may be in the best interest of all parties for the drafting lawyer to indicate that they are no longer able to act in the matter due to the potential conflict, and suggest to their clients that they retain a new lawyer to represent them in the will challenge.

Thank you for reading.

Stuart Clark

27 May

Summary Judgment Awarded Where Testator Obtained Capacity Assessment

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

I recently read an Ontario decision involving a will challenge and the court granted summary judgment to the estate trustee on the issue that the Testator had the requisite testamentary capacity to execute her Last Will and Testament. 

In Quinlan v. Caron, the Deceased executed her Last Will and Testament on May 18, 2007 (the “Will”) and she subsequently died on September 7, 2008. Two days before executing the Will, the Deceased underwent a capacity assessment that was recorded on video. The doctor who conducted the capacity assessment concluded that the Deceased had the requisite capacity to create a new Will.

 

The daughter of the Deceased commenced a Will Challenge alleging that the Deceased lacked the mental capacity to execute the Will and undue influence. The Estate Trustee is the son of the Deceased and brought a motion for summary judgment against his sister, arguing that there were no genuine issues requiring a trial as his sister’s claim was not supported by any evidence.

 

The Honourable Justice Tuck put a lot of weight on the capacity assessment and granted summary judgment to the Estate Trustee on the issue of the Deceased’s capacity; however Justice Tuck dismissed the Estate Trustee’s motion for summary judgment on the issue of undue influence. In the decision, Justice Tuck held that “matters of credibility requiring resolution on a case of conflicting evidence ought to go to trial” and he rationalized that there was conflicting evidence in this case, which could suggest that the Deceased was unduly influenced.

 

Thank you for reading and have a great weekend,

 

 

Rick Bickhram – Click here for more information on Rick Bickhram. 

24 May

Is it Possible to Prevent a Will Challenge?

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

In a recent blog published by Forbes, Mr. Bernard Krooks considers strategies that could be used to prevent a Will challenge.

In his blog, Mr. Krooks states that "Will contests often occur after a heir or family member perceives some inequity or unjustness in the distribution of money or possessions laid out in the will.  This can be the result of a lack of requisite mental capacity to execute the will, another’s undue influence over the testator, fraud, or improper execution of the will."


Mr. Krooks suggests that a Lawyer drafting a Will can send the testator to medical professional to obtain an opinion on the testator’s capacity to execute a Will.   This would be strong evidence which could be used to propound the Will, long after the testator has died.


Mr. Krooks also suggests that the drafting Lawyer should consider the use of a videotape at the time the testator is signing the Will.  Mr. Krooks explains that the videotape could be used to show that the testator signed the Will "freely and with the requisite mental capacity to agree." 


The use of a videotape at a will execution,  has significant benefits, but also has numerous problems.  This technique has been the topic of numerous debates between estate and trust professionals.


There are steps that we can take to ensure that the Will is being executed in accordance with the applicable legislation, which could help the estate trustee propound the Will; however there is no legislation in Ontario that would estopp a party who has a financial interest in an estate from challenging the validity of the subject Will.


Thank you for reading,

 

Rick Bickhram – Click here for more information on Rick Bickhram. 

16 Mar

Another Family War

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

As I have been practising in the area of estate litigation for a few years, I occasionally think that I have seen it all; that every recurring story I hear about a family war tends to lose its originality. Not true. Take for instance a recent story that was posted online in the Telegraph, involving a U.S. estate fight.

Tasha Tudor was from New England and has been described as the “unconventional Martha Stewart.” Ms. Tudor died at the age of 92 following complications from a stroke.  The basis of Ms. Tudor’s estate dispute centers on her decision to leave almost her entire estate to her eldest son, virtually cutting out her three other children. 

The oldest son argues that his late mother intended to cut out his three siblings from her estate because they were estranged from her. One of the siblings, a U.S. Air Force lawyer, who claims he was not estranged from his late mother, has asserted that the 2001 Will is invalid on the basis that his older brother unduly influenced his late mother.

The dispute has gotten so acrimonious between the siblings that they could not even agree what to do with their mother’s ashes. On motion to the Court, it was ordered that Ms. Tudor’s ashes be divided in half, with one-half to be given to the oldest son and the other half to his siblings. Lawyers are now fighting over who is responsible for a snow plough bill!

It is reported that some of the last words by Ms. Tudor were “Oh, will there ever be a cat and dogfight when I die. But I don’t care. I won’t be here to see it.” 

It is often difficult to comprehend the harsh realities of litigation until you step into the shoes of one of the parties. I wonder if Ms. Tudor were alive to witness the severity of this dispute whether she would take back those words?

Thank you for reading

Rick Bickhram

Rick Bickhram – Click here for more information on Rick Bickhram.

13 Jan

The Grim Toll of Alzheimer’s

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

The Toronto Star recently reported on Alzheimer’s disease, stating that “cases of the mind-robbing disease will more than double to 1.25 million within 30 years as baby boomers age”. 

With the numbers pointing upward as the population grays, a recent report by the Alzheimer Society, entitled Rising Tide: The Impact of Dementia on Canadian Society suggests the following steps to help reduce the impact of dementia:

1.                  Prevention programs based on healthy diet and physical activity that can delay the onset of dementia by two years, with a potential cost saving of $219 billion over the 30-year period.

2.                  Enhanced skill-building and support programs for family caregivers, many of whom suffer financial hardship because they must leave jobs to look after a relative with dementia.

3.                  Assigning a case manager to each newly diagnosed dementia patient and their caregivers, which could help the person remain at home longer and lessen the strain on the long-term-care system.

Today, annual funding for Alzheimer’s is approximately $24 million. The Toronto Star reports that if “nothing changes, this sharp increase in the number of people living with dementia will mean that by 2038, the total costs associated with dementia will reach $153 billion a year”. 

We have already seen a substantial influx with respect to Will challenges, particularly because there has been a big question mark about the testator’s capacity. The grim realty is that this will be a continuing problem that Estate Solicitors are going to have to tackle.

Thank you for reading.

Rick Bickhram

Rick Bickhram – Click here for more information on Rick Bickhram.

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

 

 

22 Apr

A Will Challenge under the Indian Act

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

In keeping with yesterday’s blog on a British Columbia real estate matter, today I focus on another BC case – Albas v. Gabriel 2009 BCSC 198 – that involves the Indian Act, a federal statute. 

For a quick recap of the interplay between provincial and federal jurisdiction regarding estate matters and First Nations people living on reserves, I refer to David Smith’s 2007 blog: The Administration of Estates under the Indian Act. 

Albas v. Gabriel involved an action by the plaintiff, as executor of the estate, for a declaration proving the deceased’s Will in solemn form.  The defendant beneficiaries appealed to the Minister of Northern and Indian Affairs because the Minister has jurisdiction to approve a Will made by an Indian and to confirm the appointment of an executor to administer the estate. Specificially, the Minister’s authority is provided by section 43 of the Indian Act.

A member of an Indian Band and a resident of a reserve, the deceased operated a trailer park and he was a “locatee” of the land because he owned “certificates of possession”: valuable assets that he left equally to his daughter and two step-children. This was just one of the businesses with which the deceased was involved.

The daughter challenged both the validity of the Will and the administration of the estate. The judge determined that the daughter believed that if the Will was declared invalid, she would inherit the entire estate.

Because of the Will challenge, the Minister transferred jurisdiction over the estate to the Supreme Court of British Columbia pursuant to s. 44(1).

Ultimately, the Court found that the Will was valid because it was not forged and the testator had capacity as well as knowledge of the Will which he approved.

Enjoy your day.

Jonathan

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

11 Feb

Mareva Injunctions in Will Challenge Proceedings

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

A Mareva injunction is a court order that freezes the assets of individuals or companies. It can be obtained without notice to the target individuals and/or companies and can then be extended on notice.

Mareva injunctions are usually employed in civil actions, typically situations involving fraud, where a plaintiff seeks to prevent a defendant from dissipating assets or removing them from the jurisdiction, pending final determination of the plaintiff’s action. 

In Will challenge proceedings, particularly involving large complex estates, a Mareva injunction may be of use in cases where there is a high risk of dissipation or removal of contested assets by one or more parties to the proceedings, thus defeating the purpose of the Will challenge.

A party seeking a Mareva injunction without notice to other affected parties must make out a strong case of dissipation or removal of assets, through sworn evidence. There is also a duty of full and frank disclosure of all material facts and law, given that the affected parties are not able to defend against the injunction at first instance. Finally, the party seeking the injunction must give an undertaking as to damages. That is, the party must undertake to pay damages to the affected parties in the event that it is subsequently determined by a Court that the Mareva injunction should not have been granted. In Ontario, further to Rule 40.02, a Mareva Order obtained without notice is valid for ten days. It can then be extended by a Court, on notice to the affected parties. An affected party, once it receives notice, may immediately move to quash the injunction. 

A Mareva Order may prove a valuable tool in preserving contested estate assets in Will challenge proceedings. 

Have a great day!

Bianca La Neve

20 Nov

CHALLENGING A WILL: AN ILLUSTRATION Part IV

Hull & Hull LLP Litigation Tags: , , , , , , , , 0 Comments

Today is the final installment of my discussion of Hix v. Ewachniuk Estate, 2008 CarswellBC 1300 (Hinkson J.).

After dismissing the will challenge on the basis of due execution, testamentary capacity and knowledge and approval, the court turned to the issue of undue influence. Despite the presence of suspicious circumstances, the court held that the challengers, not the propounder, had the burden of proving undue influence. However, while the son did not have the burden of disproving coercion, his evidence was to be tested against the preponderance of probabilities that rationally emerge out the all the evidence in the case.

The deceased was found to be vulnerable and dependant upon her son for all aspects of her existence. Conversely, the son was found to have an aggressive and domineering personality, both in general and with respect to his desire for absolute ownership of the family holding company.

The court found that the son was very caring of his mother. However, it did not accept his evidence on the issue of undue influence. The court asked a number of rhetorical questions as to why the mother would make the will that she did, despite the circumstances. The court concluded that that will was procured by the undue influence of the son.

The will was therefore found to be invalid.

Paul Trudelle

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