Tag: litigation

17 Jul

BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – EVIDENTARY ISSUES – WHAT TO DO ABOUT ABUSE CLAIMS? – PART V

Suzana Popovic-Montag Ethical Issues, Litigation Tags: , , , , , , , , 0 Comments

In almost every case, the majority of the evidence will come from the allegedly abused child and, as such, the strength of that evidence can be problematic. In these types of situations, one must not forget the requirement of corroborative evidence pursuant to section 13 of the Estates Act R.S.O. 1990, c. E.23, which provides that:

13. In an action by or against the heirs, next-of-kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

See also Schnurr B.A., "Estate Litigation – Requirement of Corroboration", 5 E.T.Q. 42.

Due to the evidentiary difficulties of these types of claims, one of the first steps that a claimant should consider taking is to obtain an expert’s opinion.

The expert’s opinion should contain evidence for the Court to consider with respect to such things as the recollections of the claimant, the details of abuse over the years and the results of both the mental and physical ramifications of that abuse.

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11 Jul

BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – WHAT TO DO ABOUT ABUSE CLAIMS? – PART II

Suzana Popovic-Montag Ethical Issues, Litigation, Wills Tags: , , , , , 0 Comments

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. ——–

10 Jul

BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – WHAT TO DO ABOUT ABUSE CLAIMS? – PART I

Suzana Popovic-Montag Litigation, Wills Tags: , , , , , , 0 Comments
While the law surrounding the breach of fiduciary duty has evolved in many ways over the years, it may be that its current application to estate litigation should be revisited.
The conventional situation where an attorney, a personal representative or a trustee is in a fiduciary position and then uses his or her power in a way that would constitute a breach of that position, has been seen as a fundamental breach of fiduciary duty: see M.(K.) v. M.(H.) (1992), 96 D.L.R. (4th) 289 (S.C.C.).
In M.(K) v. M(H), a unique twist to the conventional "breach of fiduciary duty" was considered by the Supreme Court of Canada in the context of the fiduciary duties of a parent.
It appears that there is now clear authority for the proposition that a parent is in a fiduciary relationship with his or her child. Furthermore, where there are abusive actions on the part of the parent against the child, this conduct may cause the Court to hold that a breach of fiduciary duty has occurred and thereby damages may be awarded against the parent. See also Cullity, M.C. "Personal Liability of Trustees and Right of Indemnification", 16 E.T.J. 115.
Ian has published an article on this topic in the Estates and Trusts Reports entitled, "A New Twist on Breach of Fiduciary Duty in Estate Litigation" (Carswell, 1999). As such, we propose to undertake a careful review of this unique yet important aspect of fiduciary duties.
All the best, Suzana and Ian.

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