Tag: Fraud

29 Oct

Snowbirds and a Power of Attorney

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The cooler weather is cause for many people, retirees especially, to plan an annual sojourn south.

In preparing for the winter, protecting real property — often a significant asset — may be top of mind.

My colleague, Paul Trudelle, wrote about "Real Estate Transactions Involving Powers of Attorney" in July 2008.  While travelling south for the winter does not require a sale, steps can be taken to minimize risks to real property.  The Government of Ontario suggests that to avoid real estate fraud one should protect his or her identity and be alert to identity theft.

Regarding a Power of Attorney, the government also suggests caution:  "Whenever you give another person a power of attorney that permits them to deal with your personal assets, you should consult with your lawyers or advisers regarding appropriate limitations."

In a 2004 Canadian Bar Association paper — Cross-Border Issues for Snowbirds and Roaming Retirees Marilyn Piccini Roy wrote: "If the Snowbird owns real estate elsewhere, this power of attorney may not be recognized there if the law of the situs applies its own law to the formal or substantive validity of the power of attorney or to its effectiveness vis-à-vis third parties."   If a Power of Attorney deals with assets in different jurisdictions, one should seek legal advice in the jurisdiction of the asset(s).

Recent Ontario case law highlights issues that can arise regarding real estate when a fraudulent Power of Attorney is used.  Reviczky v. Meleknia; Caplan (Intervenor) 2007 Canlii 56494 (On. S.C.) raises quesitons about a solicitor’s duty to"go behind" a Power of Attorney by enquiring about the donor’s mental capacity at the time of signing and later, as well as evidentiary requirements.  The recent case law reminds all of us, including snowbirds, of the risks that exist with a Power of Attorney.  

Jonathan Morse 

30 Sep

Will Challenge Litigation – Part 7 – Hull on Estate and Succession Planning

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Listen to Will Challenge Litigation – Part 7

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They discuss fraud as one of the most serious ways in which a will can be challenged. Evidential requirements are important when allegations of fraud or forgery are made. Handwriting analysis and other scientific means of determining the legitimacy of evidence can be employed to determine whether or not fraud has occurred. Ian and Suzana also talk about lack of proper execution being grounds to challenge a will.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

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23 Sep

Will Challenge Litigation – Part 6 – Hull on Estate and Succession Planning

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Or, listen to Will Challenge Litigation – Part 6 by clicking here.

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They pick up where they left off last week by addressing undue influence. What is undue influence and how do we prove it? Next week they will continue their discussion on the different grounds upon which a will can be challenged.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

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16 Sep

Will Challenge Litigation – Part 5 – Hull on Estate and Succession Planning

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Or, listen to the audio version of Will Challenge Litigation – Part 5

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They continue to discuss the process of will challenges in closer detail. What makes a good case? They talk about the five different grounds upon which a will can be challenged:

  1. Lack of testamentary capacity
  2. Existence of suspicious circumstances
  3. Will not having been properly executed
  4. Existence of undue influence
  5. Possibility of fraud

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

15 Apr

Who can you trust?

Hull & Hull LLP Elder Law, Elder Law Insurance Issues, Estate & Trust, Ethical Issues, Litigation Tags: , , , , , , , , 0 Comments

A massive $110 million lawsuit has been brought by the Attorney General’s office in California against a “living trust mill that tricked senior citizens into using their retirement savings to buy annuities that often made less financial sense for the elderly victims but earned the con artists substantial commissions and other income.”

Estate Planning Law Firms.com quotes the Attorney General as saying the following:

“The perpetrators of this fraud deceived seniors into using their hard-earned retirement nest eggs to buy unneeded annuities that actually undermined their financial security. Living trust mills such as this one violate not only the law, but the trust of their elderly victims.”

What surprised me was the apparent scope of the alleged organization being sued by the Attorney General: between 250 and 300 sales agents and another 80 telemarketers were involved, allegedly soliciting elderly consumers through mailings, seminars, telemarketing, presentations at senior centers and other means, marketing their services as a way to avoid probate and estate taxes, then eventually convincing seniors to buy annuities that were, according to the Attorney General, not in their best interest.

Without commenting on this particular case, there does seem to have been a disturbing and growing trend in recent years of attempts to deprive the elderly of the considerable wealth concentrated in their hands.  

One more reason, if any were needed, to take great care in choosing investment and estate planning advisors.

Thanks for reading.

Sean Graham

05 Apr

Defrauding an Estate

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This blog completes my week-long rogue’s gallery of criminal convictions in estate matters. So far I’ve talked about the Criminal Code in general plus specific cases involving breach of trust and theft.

On to fraud.

In R. v. Moore (1998 Carswell Nfld 276), an accused along with a deceased’s four siblings signed and filed with the court false documents stating that the whereabouts of the deceased’s four children were unknown, that the deceased left no will, and that the accused knew of no one else with an interest in the estate. This is chronicled at length in a set of reasons dealing with the deceased’s remarkable and inspiring life. The accused, though equally remarkable, was hardly inspiring. The criminal charges marked the culmination of her complex scheme of lies and deceit.

The accused claimed she doubted whether her brother was born to the deceased, and said her doubts in this regard justified her behaviour. The Court found that the accused was “resourceful, and articulate”, but used her talents by “persist[ing] in [a] despicable charade” to defraud her brother, nieces and nephews.

For all her trouble, the accused received $10,000, plus a conviction for fraud. It is often bizarre the extent someone will go for what seems, objectively, to be a small amount of money.

An interesting aspect of the case is that the deceased in question, mother of the accused/convicted, was by all indications a font of kindness and compassion, taking several children under her wing during her lifetime. The reasons dwell at length on what a fine person the deceased was, implying quite clearly that the accused failed to measure up to her mother’s legacy.

We will not be posting a blog on Good Friday, April 6, 2007.

Thanks for reading.

Sean Graham

06 Mar

When does Knowing Amount to “Knowing Assistance?”

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When does a bank become liable for the actions of clients who use its accounts as a vehicle for fraud?

This was the question considered in Abou-Rahmah v. Abacha [2006] EWCA Civ 1492 as reported in 9 ITELR.

A victim of fraud made payment into a Nigerian bank account through an English branch which funds were promptly removed from the bank by the fraudsters who disappeared. The victim sought damages against the Nigerian bank by way of a proceeding commenced in England.

Having lost at trial, the Plaintiff appealed, arguing that the bank had knowingly assisted in the fraudster’s breach of trust. The Court of Appeal (Civil Division) dismissed the appeal and, in so doing, comprehensively reviewed the authorities.

In short, a finding that the bank had knowingly assisted in the breach of trust would require a dishonest state of mind such that the bank had knowledge that rendered its participation “contrary to normally acceptable standards of honest conduct.”

Such a state of mind could involve suspicions combined with a conscious decision not to make enquiries. Applied to the case at hand, the Court considered that, although the bank had general suspicions that the account holder who subsequently committed the fraud was possibly involved in money laundering, the bank had no knowledge of any specific act of dishonesty regarding the transactions in question.

Until tomorrow,

David

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