After a 5 month trial and 12 days of jury deliberations, Anthony D. Marshall was found guilty of 14 charges, including giving himself a pay-rise of $1 million for managing his mother’s finances. He faces a mandatory sentence from 1 to 25 years behind bars. His sentencing is set for December 8, 2009.
The attorney who did the estate planning for Mrs. Astor was also convicted of forgery charges. Click here to read David Smith’s blog on the attorney’s actions.
The prosecution argued that Mrs. Astor’s Alzheimer’s was advanced so far that she could not understand the complex changes to her 2004 Will or other financial decisions that benefitted her son, such as the $1 million salary.
The defence has argued that Mrs. Astor had lucid moments despite her Alzheimer’s and that she gave her only son control of her estate out of love.
The story does not end there. Mr. Marshall may appeal and the question of what will happen to Mrs. Astor’s $180 million estate has not been resolved. A civil case was postponed pending the resolution of the criminal charges against Mr. Marshall. Some of the charitable beneficiaries of the estate sent observers to the criminal trial and it are not clear how evidence it the criminal trial will impact the civil case.
Whichever Will is eventually probated, Mr. Marshall will receive a large portion of his late mother’s estate.
Diane A. Vieira – Click here for more information on Diane Vieira.
As an aging society, we are likely to see an increase in issues surrounding abuse of our elderly. Just simply take a look at our recent estate and trust literature and you will notice that there has been an increase in articles about elder law.
Recently, I read an article labeled “Putting the Brakes on POA Fraud.” This article can be found in Briefly Speaking which is the official magazine of the Ontario Bar Association. The article is authored by David Freedman, who is an associate professor at Queen’s University faculty of Law. In his article, Professor Freedman looks at the common situation in which elder abuse is likely to occur wherein he states: “The prototypical example is the situation in which the elderly parent resides with one child who is to take principal responsibility for the parent’s care and who has been given a POA by the parent over his or her assets. Perhaps it is the siblings or a third-party care-giver who complains about the exercise or non-exercise of the POA, but there are many cases in which the assets are misappropriated.” Of course there is a strong public interest in protecting our elderly against financial exploitation, but what can we do?
For those of us who practice in this area of the law, how often have we heard of a family member approaching the police to make a complaint about an elderly person who has been taken advantage of and being told “it’s a civil matter”? False. Section 331 of the Criminal Code of Canada addresses the issue of “Theft by a Person Holding a Power of Attorney.” In addition to the Criminal Code, there are civil remedies that are founded on the principles of restitution. Professor Freedman states that regardless of the type of case (criminal or civil) “the interest is the same, stripping the wrong-doer of any illicit gain and restoring the victim as much as it is possible to do in the circumstances.”
Thank you for reading,
Wrongful death does not give rise to a claim under Ontario law. Section 38(1) of Ontario’s Trustee Act states in part that “if death results from such injuries no damages shall be allowed for the death or for the loss of the expectation of life”.
Contrast this with the US, where wrongful death is very much a cause of action (perhaps depending on the state). In fact, in many prominent criminal cases, the end of the first trial is often just a pause in litigation, after which the civil wrongful death proceedings begin: some recent examples include the Natalee Holloway case, the O.J. Simpson case and the Scott Peterson case. Given the “balance of probabilities” civil standard of proof that a litigant must surpass versus the “beyond a reasonable doubt” standard that the government must satisfy in a criminal trial, it is not unheard of for the defendant to avoid conviction and jail time but not a financially crippling loss in civil Court.
If an institution with deep pockets or wealthy individual defendant can be successfully linked to an alleged wrongful death, then the chances of securing a large award increase, particularly if an award for the payment of punitive damages award can be obtained. Cases brought against jails after inmates’ deaths offer numerous examples: see here, here and here.
While the deceased’s estate cannot sue in Ontario, family members do have limited rights to redress. Under Ontario’s Family Law Act defined family members can still sue for their “pecuniary loss resulting from the injury or death”. It is noteworthy that even here damages appear to be limited to pecuniary losses, and do not allow for claims regarding punitive or aggravated damages.
Thanks for reading.