Tag: fraudulent misrepresentation
Last week, Stuart Clark blogged on what happens when unexpected DNA results lead to a person finding out that they aren’t, in fact, biologically related to a parent who dies intestate or leave a class gift to “my children” in their Will. Today, I’ll be looking at recent case in BC reported on by CBC with a similar problem. In a case now moving through the BC courts, the Deceased, who had immigrated to Canada from Sweden in the 1950s, named his only child as the sole beneficiary of his estate and of an alter ego trust. Suspicious of the son’s paternity claims, relatives of the Deceased sought and obtained a paternity test that proved that the purported son was actually not biologically related to the Deceased.
Because the “son” was named in the Deceased’s Will (and in prior Wills), there is no need for either the son or the Deceased’s relatives to seek declarations regarding the son’s parentage. Instead, the relatives of the Deceased are now fighting the son’s entitlement to any interest in the Estate on the basis that the son and his mother committed fraud and deceit against the Deceased for over 50 years in order to induce the Deceased into naming the son as the sole beneficiary of his estate.
Although he moved to Canada in the 1950s, the Deceased continued to return home to Sweden during his lifetime and had a romantic relationship with the son’s mother in Sweden. According to the Swedish relatives, the Deceased wrote to the mother in 1964 and informed her of his success in Vancouver, following which she wrote to him and informed him that her son, born in 1961, was also his son. The Deceased began including the mother and son in his testamentary documents in 1966.
While the Swedish relatives claim that the son and mother perpetrated a longstanding fraud on the Deceased so as to benefit the son, the son claims that he was only informed (by the Deceased) that the Deceased was his father in 2002, that he requested paternity tests on two occasions and that the Deceased declined to do so, knowing that there was a chance that the son was not biologically related to him.
It is early days yet in the litigation of this matter with the parties having just received judgment on an (unsuccessful) motion seeking to have the Swedish relatives post security for costs. If this matter doesn’t settle, it will be interesting to see whether a Court will find that a 50 year fraud was committed on the Deceased such that the bequests provided to the son are invalid.
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If a fraudulent misrepresentation affects a testator’s testamentary intentions, either the provision or the entire will may be set aside. It has been settled law for centuries that fraud is sufficient grounds to set aside a will (see: Lord Donegal’s Case (1751), 2 Ves Sen 407). Despite this, there is relatively little case law on the impact of fraud on a will. Some possible reasons for this dearth might include the difficulty in establishing a case of fraud, the potential uncertainty of the consequences of the fraud, and a general preference to plead undue influence, where there is overlap.
The intent to deceive is central to making out a case of fraudulent misrepresentation. An innocent misrepresentation that affects a testator’s intentions will not be sufficient grounds to set aside a will, even if the ultimate impact is the same as if the representation had been fraudulent. In the English case of Posner, Re,  1 All ER 1123, a will was challenged on the grounds that the legatee described as “wife” of the testator had not in fact been his wife, because of alleged bigamy. However, because there was no allegation of fraud on the part of the “wife”, the bequest was upheld. This case can be contrasted with Wilkinson v Joughlin (1866), LR 2 Eq 319 (Eng Ch), which also involved a bigamous marriage. In this case, the court held that because the beneficiary had fraudulently represented herself as a widow to the testator at the time of their marriage, she could not inherit under the will. However, the court upheld the gifts to her daughter, whom the testator believed to be his step-daughter, because the daughter had not participated in the fraud.
Even where fraud is established, the provision or will might be saved, if the testator had reasons other than the fraud for making the disposition. In Posner, Re, the court held that a legacy will fall if it is induced by fraud, “which alone can be supposed to have been the motive of the bounty.” This suggests that if the testator has more than one reason to give a gift, one of which is fraudulent, the gift may still be valid. This approach was followed in Ontario in Isaacs, Re,  OR 942, in another case in which a marriage was found to be void ab initio. The court held that it could not be assumed that the deceased would have acted differently if he had known the beneficiary did not have the legal status of wife.
Alleging fraud can be risky for an objector, because an unfounded allegation of fraud can result in cost consequences against the party making the unfounded allegations. In many cases where fraud might be alleged, an allegation of undue influence may also be available.
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