The onus of proving undue influence is on the challenger. By its nature, undue influence is often very hard to prove. However, the court may resort to a presumption of undue influence in certain circumstances.
In a thought-provoking article in the December 2011 issue of The Lawyers Weekly, Adam Parachin, an associate professor at the Faculty of Law, University of Western Ontario, discusses the high onus to be met in undue influence cases, the application of a presumption of undue influence in certain cases, and the perils of strengthening the presumption of undue influence.
Specifically, Parachin states that the court’s increasing willingness to accept circumstantial evidence of undue influence possibly means that the need for a presumption is less obvious. Further, identifying “triggers” to the imposition of a presumption leads to a circular argument: “instances best meeting this requirement [to trigger the presumption] are those where the need for the presumption is the least apparent.”
Further, the application of the presumption may detract from the testamentary freedom of the testator. As noted by Parachin, the application of the presumption could disproportionately jeopardize wills that depart from the usual pattern of estate distribution, or wills that are not prepared in accordance with the usual protocols. In addition, testamentary freedom should extend not only to how one’s estate is to be distributed, but to who is to be included in the will making process.
Finally, Parachin states that a strong presumption might facilitate questionable claims. The costs of defending these claims, and of rebutting the presumption, would bolster these questionable claims, and lead to compromises that might, in many cases, be contrary to the testator’s intention.
Let the debate begin.
Paul E. Trudelle – Click here for more information on Paul Trudelle.
The Supreme Court of British Columbia recently dismissed a claim made by an erstwhile beneficiary against a person alleged to have unduly influenced a testator to remove the beneficiary from the testator’s will.
In Moore v. Piccioni, 2011 BCSC 664 (CanLII), a son alleged that his mother made defamatory statements about him to his grandmother which resulted in the loss of the grandmother’s love and support, and his removal as a beneficiary of her will. The son also alleged that the mother unduly influenced the grandmother, causing her to remove him from her will.
The son brought a claim against his mother for the slander, and for damages as a result of the undue influence. The mother moved to dismiss the claims.
On the issue of slander, the court held that the claim was statute-barred.
On the issue of the claim for damages arising from the alleged undue influence, the court held that there was no cause of action for undue influence.
In so doing, the court did not cite any case law. However, the court noted that the son had also filed a caveat (akin to a Notice of Objection in Ontario), and that a probate action was commenced by the mother to have the will pronounced in solemn form, and the caveat dismissed.
The court held that the probate action was the appropriate action in which to try the issue of undue influence.
Presumably, if the son was successful in the probate action, then the will would be set aside and he would not suffer any damages. If undue influence was not proved, and the will was not set aside, then the son would not be entitled to any damages in any event.
Thank you for reading.
Paul E. Trudelle – Click here for more information on Paul Trudelle.
Hull & Hull LLP hosted its quarterly breakfast series on September 24, 2009. Megan Connolly started off the day with a very informative talk on charitable gifts, with a focus on when a charitable beneficiary can not be identified or cannot be found.
Megan reviewed ways in which the charitable gift may survive in these circumstances, which are touched upon below.
· When the charity is inaccurately described, but the description is sufficient to make it clear to which charity the gift was intended and the beneficiary is discoverable, the gift will not fail;
· When the institution can still be identified, although its form might have changed (i.e. unification of churches), then the court will often be willing to give effect to the gift – a key consideration is whether the charity has maintained a “continuing identity”;
· When it is impossible or impracticable to carry out the gift (i.e. the named institution ceased to exist during the testator’s lifetime) an application for the advice direction of the court can be brought on the basis of the cy-près doctrine; and
· Section 13 of the Charities Accounting Act provides a mechanism for obtaining a cy-près order without having to commence a formal court proceeding when the consent is obtained of the Public Guardian and Trustee and everyone else required to be served with such an application.
An interesting panel discussion followed between Ian Hull and Suzana Popovic-Montag on undue influence, which is seen to be the most difficult ground upon which to successfully challenge a Will.
If you would like to receive a copy of the papers on these topics please contact us.
Have a great day,
Natalia Angelini – Click here for more information on Natalia Angelini.
A current Georgia case vividly illustrates the legal, emotional and moral complexity often involved in estates litigation. According to the reports, Harvey Strother died at age 78, having succumbed to progressively severe alcoholism brought on by the tragic death of his daughter at age 23. Strother had built up a formidable nest of car dealerships around Georgia, dying with a net worth of about US$37 million. And a mistress 30 years his junior.
At issue are 3 amendments to Strother’s 1988 will in favour of his mistress. The will had left the bulk of his estate to his wife, their children and grandchildren. But one amendment gave his mistress a $7,900 monthly allowance, a second gave her health insurance and an island condo in Florida. The third – signed about a month before Strother’s death – gave her a Cape Cod cottage, a Florida boat slip and a Florida condo to her son. By that time Strother was drinking 1.5 gallons of wine a day (about 6.8 liters, or 9 bottles of wine).
At trial, the jury upheld the first two amendments, worth about $4.5 million to the mistress. However, the third one was invalid. Strother, was allegedly drinking even before he signed it and brought to the lawyer’s office by his mistress, and his signature was illegible.
The family is appealing the two amendments that were upheld, one on the basis that the witnesses were not even present (the mistress is appealing the third amendment struck out by the jury). Interestingly, the family is represented by Georgia’s ex-Governor Roy Barnes, who points out that the requirement for two witnesses "is an elementary part of the law that has been there since the time of Edward II." FYI, King Edward II, 1284 – 1327: yes, we deal with old law in estates litigation.
Have a great day,
I recently attended a breakfast seminar hosted by Hull & Hull LLP, where I listened to my colleague, Natalia Angelini, speak about a testator’s capacity to give instructions for the preparation of a Will.
During Natalia’s discussion, she spoke about the varying levels of capacity for different transactions. Natalia also touched on the traditional grounds that a Will could be challenged. I was particularly intrigued to learn that the circumstances surrounding the failure of a testator to make a will could be advanced as forming the basis for a will challenge.
One of the traditional grounds for a will challenge is undue influence. At its very basic form, undue influence occurs as a result of pressure brought to bear on the testator in giving instructions and executing the testamentary document. The pressure brought on the testator, must be of such a degree that the testator has reached the point of thinking, "It is not my wish, but I must do it".
In contrast, "reverse" undue influence (as it has been called) occurs where a testator is being prevented from signing a Will.
As this interesting topic continues to evolve, I am confident that the estate & trust bar will be looking on with interest.
Mom dies, leaving a will that divides her estate among her three sons. The only trouble is that before she died, Mom gave the farm to one of her sons. Accordingly, the other two sons receive nothing upon Mom’s death.
This fact situation was recently considered by Jenkins J. in Bale v. Bale.
The two disappointed sons were not actively involved in Mom’s care. The other son lived with Mom, and helped her extensively. The court found that Mom relied on the one son for her care and well being.
The lawyer on the transfer said that Mom, who was 93, understood the transaction and what she was signing. A doctor confirmed her capacity.
Notwithstanding this capacity, the judge concluded that the relationship between Mom and son was one of dependency. The presumption of undue influence was triggered. Although the court found that Mom had great affection for her one son, this was not sufficient to validate the transfer of the property to him. The court concluded that the transfer of the farm was influenced by Mom’s dependence on the one son. The transfer was set aside.
When considering the value of an estate, one should consider any transfers by the deceased prior to his or her death; particularly where any such transfer might have resulted from undue influence due to a dependency.
Thank you for reading
In this week’s episode of Hull on Estates, David Smith and Diane A. Vieira discuss the issues surrounding spousal exclusion from the will of the deceased and how to challenge this exclusion.
Click "Continue Reading" to read the transcribed version of this podcast.
While researching yesterday’s blog on the Brooke Astor estate, I stumbled upon a number of legal blogs on the Astor guardianship dispute. Several of these including this one noted that the lawyer for Astor had come under scrutiny during the guardianship dispute. The issue was whether the lawyer himself played a role in unduly influencing Astor to make a Will thereby benefitting her son’s charitable foundation. Such enquiry is, of course, of grave concern and considerably different than that faced by a lawyer who makes a Will in circumstances where there is some question as to whether the testator is capable to make a Will. Certainly, in Ontario, this latter issue has been exhaustively considered by the Court of Appeal in Bennett v. Hall. Put simply, if a lawyer is asked to make a Will (and has been retained for that purpose) but has questions as to the capacity of the testator, it is not inappropriate to make the Will and extensively document his file with notes so that the validity of the Will, if challenged, can be adjudicated by the Court. But what if the lawyer draws a Will under which he or she receives a benefit? A New York Probate lawyer, Philip M. Bernstein notes in his blog that Astor’s lawyer had "been named as beneficiary on several occasions and has inherited such valuable goodies as Manhatten apartments and valuable works of art including at least one Renoir and a Diego Rivera drawing as well as substantial sums of cash." While this example is clearly at the extreme end of the spectrum, trusts and estates practitioners may occasionally encounter clients who wish to name them as a beneficiary of their estate. To accept a retainer in such circumstances is to invite allegations of suspicious circumstances and a presumption of undue influence which could cause the entire Will to be set aside. Surely counsel of caution is to decline a retainer anytime a client wishes to confer a benefit in a Will upon the drafting solicitor, regardless of the circumstances.
Enjoy the weekend,