This weekend marks the end of the 105^th Tour de France.  This year’s race has been full of controversies, first as a result of allegations of doping by pre-race favourite and four-time winner Chris Froome (and a related threatened cyclist strike) and subsequently ranging from disqualification of one cyclist for punching another to the inadvertent tear-gassing of cyclists by French police.

This spring, news surfaced regarding a settlement negotiated in respect of the claims against controversial cycling figure Lance Armstrong.  Armstrong’s former teammate, Floyd Landis, had commenced proceedings against him in 2010 under the False Claims Act.  The United States government became involved in the fraud proceedings in 2013 after Armstrong admitted to using performance-enhancing drugs after years of public denial.

The litigation commenced by Landis was settled earlier this year.  Terms of settlement were reported to involve a payment by Armstrong of $5 million (of the $100 million claimed against him), as well as a payment to Landis of $1.65 million in legal fees.  Accordingly, Landis’ one-quarter share in the settlement payment is less than what he will receive in legal fees.

It is not unusual in our work to see settlement terms involving the payment of one or more party’s legal fees as part of or in addition to a settlement payment.  Especially where litigation spans the better part of a decade, the legal fees incurred can rival or exceed the quantum of the settlement payment itself and may form an important part of negotiations.

Have a great weekend,

Nick Esterbauer

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Listen to: Hull on Estates Episode #331 – Issues Involving Minors and Incapables 

This week on Hull on Estates, Natalia Angelini and Jonathon Kappy discuss issues involving minors and incapables. Specifically, they discuss accepting payment into court for the benefit of individuals under the age of majority as well as various statutes dealing with accepting payment into court.

Please leave a comment or send us an email at hull.lawyers@gmail.com if you have any questions.

Click here for more information on Natalia Angelini.

Click here for more information on Jonathon Kappy. 

The recent Ontario Superior Court of Justice decision of Re Steen Estate addresses the issue of getting funds paid into court pending a determination of ownership.

In that case, the deceased left a will that divided her estate equally amongst her three sons. There was also a prior “Family Agreement” in which the deceased and her three sons agreed that the deceased’s intent was that each of her three sons would receive a one third share of her financial assets upon her death. The agreement went on to provide that all existing accounts of the deceased, whether jointly held or otherwise, would be totalled, and the value divided into three upon the deceased’s death.

The plaintiff, one of the sons of the deceased was also the estate trustee, brought a claim as against the two other sons with respect to jointly held accounts held by the two other sons. It appears that the plaintiff also held a joint account with the deceased as well.

The plaintiff brought a motion requiring the two other sons to pay the monies they held jointly with the deceased into court pending a determination of the issue.

The Court considered the test for having funds paid into court under Rule 45 of Ontario’s Rules of Civil Procedure. The three-pronged test requires that the moving party show:

1.                  That the moving party has a right to a specific fund;

2.                  That there is a serious issue to be tried regarding the moving party’s right to that fund; and

3.                  That the balance of convenience favours granting the relief sought by the party.

The motion was dismissed. The court held that there was no “specific fund” as the joint account with one of the defendants had been transferred into his investment account: the fund no longer existed. There was no evidence with respect to the other joint accounts.

The court also found that there was no “serious issue to be tried”. The intention of the deceased with respect to dividing her estate was clear.

Finally, the court held that the balance of convenience did not favour the plaintiff. The plaintiff only sought that the defendants’ joint accounts be paid into court, and not his own joint account. The court held that it would be “grossly unfair” to require the defendants to pay their joint account funds into court while allowing the plaintiff to hold onto his joint account proceeds.

This last point seems to have resonated with the judge. The court noted at several points in the decision that the plaintiff was not seeking to have his jointly held funds be paid into court as well.

Thank you for reading,

Paul Trudelle

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Listen to Payment of Legacies

This week on Hull on Estate and Succession Planning, Ian and Suzana discuss payment of legacies and other gifts that may be set out in a will.

Comments? Send us an email at hullandhull@gmail.com or leave us a message on our comment line at 206-457-1985.

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Listen to Tips and Trips in Drafting.

This week on Hull on Estates, Suzana and Ian discuss tips and traps in the drafting of wills.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estate blog.

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