I am currently embroiled in several guardianship fights where the grantor’s capacity to grant a power of attorney is very much at issue. I therefore read with interest an article, co-authored by our own Ian Hull, regarding the legal and medical methodology in assessing testamentary capacity and evaluating undue influence. The article was published in the American Journal of Psychiatry in May 2007.
The article addresses a variety of issues. However, the one that I want to consider today is the common cognitive screening tests used by the medical profession to assess testamentary capacity.
By way of introduction, the article states:
Clinicians and legal experts must understand that cognitive tests are not diagnostic of dementia and cannot be used as a measure of capacity. Their value lies in the ability to screen for cognitive impairment and to reflect changes in cognition over time. The Mini Mental Examination (MMSE) and the clock-drawing test are the two most common used cognitive screening tests.
In the context of estate litigation, mediation, as well as pre-trial conferences, often lead to settlements. The importance of carefully documenting a settlement should not be overlooked. Where required, a Rule 7 motion (court approval of a settlement where a party is under a disability) will have the effect of forcing the parties to document their settlement by way of a supporting affidavit, proposed minutes of settlement, and/or a draft order. As a result, the parties know exactly where they stand and what they can expect in the future. While a successful pre-trial conference may result in a court order on the spot, such an order, if granted, usually indicates that the parties have simply settled without canvassing the terms.
Too often a settlement is not properly documented and subsequent problems inevitably arise. It has been my experience that parties attending mediation or a pre-trial conference are anxious to leave. They may be emotionally exhausted both from the day and from the litigation generally and suffering from financial fatigue. In fact, the parties may have a hard time just being in the same room. Counsel too becomes frustrated by a long and arduous day and when a settlement is finally reached are anxious to leave. Counsel mistakenly believe that the matter can be “written up” at a later time.
It is widely assumed, and accepted for that matter, that a formal passing of accounts affords full protection to an estate trustee. The familiar mantra is that those with a financial interest in an estate are not only required to object to the accounts proffered, but must concurrently raise any other issue regarding the overall competency of the estate trustee (succinctly summed by the phrase “you snooze you lose”). However, I recently came across an Ontario Court of Appeal (“C.A.”) case that challenges that proposition.
By way of background, section 49(2) of the Estates Act states: “The judge, on passing the accounts of an executor… has jurisdiction to enter into and make full inquiry and accounting of … the whole property that the deceased was possessed of… [including] its administration and disbursement”. Section 49(3) authorizes a judge to order the estate trustee to pay damages if the estate trustee occasioned financial loss to the estate through misconduct, neglect, or default. It is worth noting that the language is permissive, not mandatory, seemingly providing a beneficiary with the opportunity to make a later complaint.
In this episode of Hull on Estates, Ian and Suzana have a discussion dealing with the use of trusts. They use the example of a case where a family put their cottage into a cottage trust, and when the children grew older, the children wanted cottages of their own.
Click "Continue Reading" for the transcribed version of this podcast.
TO BE IN CONTEMPT OR NOT TO BE IN CONTEMPT REGARDING ORDERS REQUIRING PAYMENTS OF MONEY – THAT IS THE QUESTION PART I OF II
In Forest v. Lacroix Estate (2000), 187 D.L.R. (4th) 280, the Ontario Court of Appeal (“C.A.”) affirmed that Rule 60.11 contempt orders cannot be used to enforce orders for payment of money.
In Forest, a testator had named his son trustee and sole beneficiary of his estate having no provisions for his common-law wife of 19 years. Despite there being an order specifically prohibiting the dissipation of the estate, the son dissipated a significant amount of the estate assets. The Trial Judge having made a finding of contempt, ordered the son committed to jail for 9 months unless he purged contempt within 28 days by paying the common-law wife. The Court of Appeal noted, following a review of the law, that there are other means by which support orders can be enforced.
In 2002, the C.A. in Murano v. Murano,  O.J. No. 3632 relied on the reasoning in Forest and held that there was no exception for family law matters.
In today’s and tomorrow’s blog I will touch upon the case of Dickie v. Dickie,  S.C.J. No. 8,  78 O.R. (3d)1 (Ont. C.A.), in which the C.A. and Supreme Court of Canada (“S.C.C”) deal with the availability of a contempt motion in respect of the failure of a party to comply with alleged orders requiring the payment of money.
Today’s blog will set out the background to Dickie; tomorrow’s blog will deal with the decisions of the C.A. and the S.C.C.
The case involves a dispute between husband and wife. Before the C.A. was the appeal by the husband from an order finding him in contempt of Court for failing to comply with orders requiring him to secure support obligations by providing an irrevocable letter of credit and to post security for costs. The motion Judge imposed a sentence of 45 days in jail for that contempt, which the husband served immediately. The husband pursued his appeal arguing that the motion’s Judge had no jurisdiction under Rule 60.11 of the Rules of Civil Procedure to make a contempt order because the underlying orders were orders requiring him to make a payment of money. The wife brought a preliminary motion before the C.A. submitting that the Court should refuse to entertain the appeal because of the husband’s wilful disregard for orders of the Court.
Thanks for reading. Part II tomorrow.
Given the events of last week, it is hard not to blog on the Conrad Black verdict. Much has been written with more to come. In one of my spring blogs, I commented, with some admiration, on Black’s perseverance in the face of overwhelming odds and noted the importance of steadfastness in litigation. Of course, the danger for Black, as with all other litigants, is that perseverance becomes intransigence. According to a variety of talking heads, Black had ample opportunity to settle with the shareholders and avoid the entire mess, but refused.
I will leave it to others to comment on the justness of the Black verdict. However, building on yesterday’s blog, which addressed the importance of gathering and putting forward the right evidence, the Black verdict is instructive. Black’s right-hand man, David Radler, was ultimately not believed by the jury. Black’s defence team went to great lengths to paint the prosecution’s star witness as a blagger and a liar; they obviously had some success.
What was interesting is the fact that three “small town” newspapermen were, in fact, believed by the jury of 12 ordinary men and women. The three claimed that they were suspicious when Black tried to inject himself through non-competition agreements into the sale of newspapers. To the jury, their evidence rang true and was credible; Black was up to no good.
In the end, Black was convicted on the evidence of strangers or third parties to the litigation. The three newspapermen had nothing to gain by testifying. Their evidence, presented in a sincere and congenial way, proved to be the undoing of Black. It is trite to say that litigation is unpredictable. However, when witnesses who have nothing to gain give evidence, it is best to sit up and take notice.
Thanks for reading!
Listen to "Powers of Attorney Defined"
Read the transcribed version of "Powers of Attorney Defined"
They define "Power of Attorney", and cover the responsibilities that accompany this role. The steps to take if you decide to revoke your Power of Attorney are also discussed, as well as the regulations of the Substitute Decisions Act which sets out some of the duties involved in Power of Attorney
Webster v. Webster Estate – Limitation Periods and Equalization Payments: When is it too Late? Part II
In yesterday’s Blog, we learned that Mrs. Webster sought an order extending the six-month time limit within which she could file an election to make an equalization claim from her husband’s Estate. Today, I will consider the law and the court’s decision.
According to the court, while there was evidence to suggest that Mrs. Webster was content with her benefits under the Will during the life of Mr. Webster, the court nevertheless recognized that she was completely free to change her mind and seek an equalization payment within the prescribed time.
Section 2(8) of the Family Law Act provides that the court may, on a motion, extend the prescribed time if it is satisfied that: (1) there are apparent grounds for relief; (2) relief is unavailable because of delay that has been incurred in good faith; and (3) no person will suffer substantial prejudice by reason of the delay.
Hull on Estate and Succession Planning Podcast #35 – The Family Conference – Special Needs Beneficiaries
READ THE TRANSCRIBED PODCAST HERE
During Hull on Estate and Succession Planning Podcast #35, we discussed:
- Special needs beneficiaries;
- What the definition of a special needs beneficiary is;
- The use of trusts for special needs beneficiaries; and
- The proper planning for special needs beneficiaries and what happens to the assets and the trust when the special needs beneficiary dies.
READ THE TRANSCRIBED PODCAST
During Hull on Estates Podcast #35, we discussed the following:
- Competing beneficiaries who join forces to challenge a Will when they do not have identical interests;
- People that need to be served in a Will Challenge;
- How to decide if you need your own lawyer or if you should join forces with the same solicitor; and
- How to deal with the costs of the Will Challenge when dealing with several lawyers.