In this episode of Hull on Estates, Natalia and David have a discussion about partition in sales proceedings, and use the case of Suttick and Schwenger, which deals with a family cottage.
I am always somewhat bemused when clients involved in Estate litigation tell me they are embarrassed that their family is fighting. Many believe that their family is somehow abnormal because they cannot work out the problem amongst themselves.
My first instinct is generally to tell them there is no such thing as a ‘normal family’. Put another way, the ‘normal happy family’ seems to be a mythical creature viewed only in “Leave it to Beaver” reruns. No one ever has to apologize to me about their family. I’m a lawyer, not a judge. Even a judge will wisely avoid condemning families in turmoil wherever possible.
Every family has its idiosyncracies, some more notable than others. Those oddities are the sum total of decades’ worth of shared experience. A lawyer can probably never fully understand how a family gets to where it is at any point, let alone judging.
Definitely family members can carry grudges long past the time when an outside observer would think healthy, but some grudges are justified. By necessity, estate litigators often end up working along the outskirts of those grievances. Without conscious effort to stay out of it, those arguments can start to impact our advice to the point where we are no longer being the objective, dispassionate advisors that we need to be. Cases where children were (or allege to have been) abused by parents in the past are particularly prone to this dynamic.
It can be hard to get clients past their animosities to focus on the cost-benefit of litigation, but well worth the effort. If they want to continue Estate litigation once they understand the risks, delays and expense of litigation, so be it, so long as we first put them in the position to make that decision.
Thanks for reading.
During Hull on Estate and Succession Planning Episode 39, we continued our discussion on the Family Conference, focusing on the actions to be taken in regards to non-participating family members. We also discussed the importance of documentation and defined will challenges.
CONTEMPT MOTIONS AND ESTATE LITIGATION – PART V
As I mentioned in yesterday’s blog (November 2, 2006), today’s blog will note several cases wherein contempt motions were brought in respect of passings of accounts.
In Mesesnel (Attorney of) v. Kumer,  O.J.N. 1834 (Ont. S.C.J.), the Court considered a contempt motion arising from allegations that the accounts prepared by a party did not cover the entire accounting period and the accounts prepared were improper.
In this case, prior to the death of Mesesnel, Donald Steward Mills had apparently been a good friend of Mesesnel and also served as Mesesnel’s solicitor and occasional business partner since 1970 and had Power of Attorney over Mesesnel since 1978. An Order was made for the passing of Mills’ accounts. Mills provided some accounting but it was claimed that the accounting was incomplete as it only went back to a certain date (1996) and that it was not submitted in proper court form. The clarity of the Order was a concern. It read:
“4. THIS COURT ORDERS that Donald Stewart Mills provide accounts as required under section 42 of the Act and prepare accounts relating to his management of assets of Mesesnel as required under rule 74, to be provided on or before June 30, 2002 unless otherwise ordered by this court.”
BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – WHAT TO DO ABOUT ABUSE CLAIMS? – PART II
A claim for breach of the parent/child fiduciary relationship can have an impact in the context of claims in estate litigation matters.
As is sometimes the case, parents may choose to treat their children unequally under the provisions of their will. In these kinds of circumstances, a disgruntled child may challenge the validity of the will and so become a party to estate litigation.
A further claim against the assets of the estate for breach of parental fiduciary duty may be a useful avenue for a child to pursue against the estate of a parent.
As has been known to happen, a parent may have a long-standing bias against one child or another, which is reflected in an unequal distribution of his or her estate. This long-standing bias may have been as a result of an estrangement as between the parent and the particular child. The reasons for the estrangement are usually numerous and it can be difficult to pinpoint precisely the actual reason for the unequal treatment of the child.Often, the estrangement between parent and child dates back many years and, in some situations, the breakdown of the relationship ties closely to the child leaving home at an early age and then not pursuing any meaningful contact with his or her parent.
In our view, when dealing with these kinds of cases, a careful inquiry must be undertaken into the circumstances of the estrangement, dating even back to childhood.
More to come on this interesting topic in a future blog …
All the best, Suzana and Ian. ——–
IS THERE SUPPORT AFTER DEATH? – What about Moral Obligations and the “Fair Share of Family Wealth” Analysis? – Part VII
As you know, we have dedicated a few recent blogs (see our June 30, 2006 and July 3, 2006 posts) to the Ontario Court of Appeal’s decision in Cummings v. Cummings.
Perhaps, most notably, in determining the quantum of support to award in this decision, the Ontario Court of Appeal endorsed the concept of dependant’s support as a re-distribution of family wealth or property.
In this regard, the Court stated (at paragraph 48):
There is another reason why the Tataryn approach fits in Ontario as well. The view of dependant’s relief legislation as a vehicle to provide not only for the needs of the dependants (thus preventing them from becoming a charge on the estate) but also to ensure the spouses and children receive a fair share of family wealth, was also important to the Court’s analysis in that case.
Just how awards for support under the Family Law Act will be affected by the Cummings v. Cummings decision remains to be seen. In resolving that problem, however, consideration of both the Tataryn and the Cummings cases must be given.
We hope you enjoyed our review of this important turning point in the area of dependant’s relief, and we intend to continue to follow the issue and discuss further developments in future blogs.
All the best, Suzana and Ian. ——–
In an effort to discuss claims against an estate that relate to dependant support and to claims of the surviving spouse, we thought it would be interesting to embark on a mini-series on the topic.
Family Law Act Claims
Subject to a contract to the contrary, section 6(1) of the Family Law Act provides for the right of the surviving spouse to make an equalization claim against the assets of the estate.
Since the 1970s, a general statutory proposition prevails that the value of "family property" should be split up equally when the marriage ends, regardless of which spouse holds to the property.
With the coming into force of the Family Law Reform Act, 1986 (R.S.O. 1980, c.152 (repealed and replaced by the Family Law Act 1986, S.O. 1986, c.4)), Ontario established a deferred community of property regime, which added a new dimension in relation to its impact upon surviving spouses and estates of deceased spouses and other persons who have an interest in their estates.