Tag: Will Challenge
Listen to Will Challenge Litigation – Part 1
This week on Hull and Estates, Ian and Suzana kick off their new video format.This podcast is an audio version of the video podcast that is available on YouTube here: http://www.youtube.com/watch?v=udEcTpLFIkk
This week’s episode also marks the beginning of a new segment that tackles Will Challenge Litigation step-by-step.
Robert Brown claims to be the unacknowledged “love child” of Queen’s Elizabeth’s late sister, Princess Margaret. In his quest to prove his claim, he has sought access to the secret Royal Wills of Princess Margaret and the Queen Mother.
In 2002, shortly before the deaths of Princess Margaret and the Queen Mother, lawyers for the Royal Family, the British Treasury, and the Attorney General met with England’s highest ranking family judge seeking a practice direction to codify the century-long convention that Royal Wills be kept sealed from the public. The Order was passed and the “secret pact” was not made known to the public or Parliament.
Mr. Brown sought to have the Wills unsealed in family court but his case was struck down as vexatious and baseless. Mr. Brown sought leave to appeal and the court of appeal granted Mr. Brown leave and found that he was entitled to a hearing of his claim to have the Wills inspected. Despite calling his claim to be Princess Margaret’s son “irrational and scandalous”, Lord Chief Justice Lord Phillips found that the public interest outweighed the Royal family’s right to privacy and called the pact unconstitutional.
News of the “secret pact” resulted in an outcry in the British media and calls for transparency within the Royal family. Mr. Brown’s lawyer submitted that members of the Royal family who receive national assets should have their Wills inspected by the public to ensure those assets are not mixed with personal property. If Mr. Brown wins, he will overturn the long standing convention that Royal Wills be kept sealed; a convention started in 1911 by Queen Mary to seal the will of her brother, Prince William of Teck and prevent a Royal scandal.
You never know who is going to change the law.
Have a great (long) weekend,
Listen to Experts in Estate Matters.
This week on Hull on Estates, Craig Vander Zee and Sarah Fitzpatrick discuss expert evidence in estate matters. In this episode they outline circumstances when one should use expert evidence, different types of experts, timing of reports, limitations of experts and the court appointed expert.
There has been some controversy as to whether a Will challenge is subject to a limitation period under the new Limitations Act, 2002, which came into force January 1, 2004.
In her excellent paper presented at the 10th Annual Estates and Trusts Summit last week, Anne Werker states that in her view no limitation period applies to Will challenges. Not even the absolute 15 year limitation period set out in the Limitations Act, 2002 applies. In other words, a Will challenge is not statute-barred for being out of time. Keep in mind that the Limitations Act, 2002 was hailed at the time as bringing under one roof a myriad of limitation periods and imposing an almost universal 2 year limitation period (subject only to reasonable discoverability).
According to Anne, the Limitations Act, 2002 will not bar an application for a judicial declaration regarding the validity of the Will where, for example, there are grounds discovered subsequent to the issuing of a certificate of appointment of estate trustee, such as a later Will, or evidence that brings the Will into question.
However, Anne does acknowledge that the return of an issued certificate of appointment of estate trustee is not automatic when a Will challenge is launched after a certificate of appointment has been issued. A party may rely on equitable relief such as laches (failure to act) or acquisition (concurrence). As Anne points out in her paper:
“When a Certificate of Appointment of Estate Trustee has already been issued, on notice to the interested parties, and if the grounds to challenge the Will are weak, unexplained delay will be a significant factor in whether the Court exercises discretion to allow a Will challenge to proceed.”
No doubt, the courts will eventually be asked to consider limitation periods and Will challenges, but in the interim Anne’s paper has made a valuable contribution to the debate.
Over the next week, I will blog on a variety of topics within the estate and and trust world. I will canvas notable case law as well as draw on my recent experience. My first topic deals with evidence.
It is crucial when litigating to amass the right evidence. A great deal of thought usually goes into deciding whether to litigate, but once that decision has been made, the right evidence has to be put forward in order to win or to facilitate a favourable settlement. Much of what litigators now do is by way of application so affidavit evidence is key. The beauty of affidavit evidence is that it allows the lawyer time to draft or finesse the evidence – not change it, but just present it in its most persuasive format.
When dealing with a will challenge and capacity, the notes of the solicitor who drew up the will are obviously critical, as is any medical evidence particularly from a family doctor. In a guardianship fight, medical evidence is again key, but so is evidence from family or friends. However, when deciding what evidence to submit, a careful litigator will take the time to decide what evidence is required over and above the usual. In other words, what avenues are worth exploring that may reveal the unexpected. Is there some person who may be able to add fresh evidence that will make the difference and carry the day?
In a recent guardianship case that I was involved with, the evidence of two neighbours turned out to be critical. The neighbours were able to comment on the slow deterioration of the incapable. As family members had applied to the court to be appointed guardians, the neighbour were also able to comment on whether the family members visited and how often. The neighbours, who still kept in touch with the incapable, were also able speak to the wishes of the incapable when it came to who should look after the incapable. A caregiver at a nursing home was also in a position to comment on the mental state of the incapable and, in fact, assisted a doctor who was retained to prepare a retrospective assessment. What the neighbours and the caregiver brought to the table was the fact that their evidence was credible and independent. In other words, they had no particular stake, one way or the other, in the outcome of the litigation. They were simply interested in doing what was best for the incapable. When it comes to evidence from outside or third parties, their evidence will likely be believed because it is seen as untainted. As a result, every effort should be made to get evidence from outside or third parties and from sources that may be out of the ordinary.
Thanks for reading.
The outcome in most types of litigation is pretty simple – you lose, you pay. How much you pay usually depends on various factors, including how the parties conducted themselves during the litigation, whether any offers to settle were exchanged and on what terms.
The unique thing about estate litigation, however, is that historically, regardless of whether you were triumphant or defeated, the estate often bore the expense of the proceeding.
As most estate lawyers already know, however, things are changing. One speaker at the Ontario Bar Association’s 2007 Trusts and Estates conference explained the following trends arising out of more recent court decisions:
• Will Challenge – when unjustified allegations are made against a defendant, the plaintiff may be ordered to pay the defendant’s costs
• Will Interpretation – when a Will does not need interpreting or when its provisions are not unclear, the party requesting its interpretation may be denied its costs
• Dependant Support Claim – successful claimants may have to bear their own costs when the court considers factors (similar to those applied in other litigation) that weigh in favour of such a result
• Passing of Accounts – when executors neglect or refuse to furnish accounts, fail to keep proper records or mismanage estate funds, they may be ordered to pay the costs of the successful beneficiaries
I am pleased to see such modifications to traditional cost principles, as in my view it will deter unfounded litigation being brought by those mistakenly of the view that the estate will foot the bill.