WEL Newsletter - Volume 6, Number 12 - March 2017



WEL Partners provides litigation, mediation and dispute resolution to clients throughout Ontario:
 

 
* Albert Oosterhoff, Professor Emeritus Western University, Counsel to WEL consults on matters within his areas of expertise, providing opinions concerning Wills, Estates, Trusts and related Property matters. 
 
Please Enjoy,

Kimberly A. Whaley & Lionel J. Tupman
WEL Partners

PART I: WEL NEWS

1. WEL WELCOMES DYLAN CROSBY, ASSOCIATE LAWYER


 

It is with great pleasure that WEL welcomes Dylan Crosby who  joined the  firm as an associate lawyer on February 27, 2017. Dylan was called to the bar in 2011. Prior to joining WEL Partners, Dylan practiced commercial, insurance and personal injury litigation at two prominent civil litigation firms in Toronto. He has experience assisting with jury and non-jury trials as well as appeals.
 

2. WEL WELCOMES SHANNON HILL

 
Shannon Hill joined the firm on March 6, 2017 as a legal assistant. 

3. WEL WELCOMES AMMIE SINGH

 
Ammie Singh joined the firm on February 6, 2017, as our knowledge management and support clerk. 

4. WEL WELCOMES ANDREA HOGAN

 
Andrea Hogan joined the firm on March 13, 2017, as a legal assistant. 

5. WEL ON POWERS OF ATTORNEY

 
WEL's newest publication, WEL ON POWERS OF ATTORNEY, 2016, is now published. For inquiries, please contact Kim directly.
 

6. SUNNYBROOK HEALTH SCIENCES, FEBRUARY 15, 2017

 
Mark Handelman spoke to the social workers at Sunnybrook Health Sciences, on the topic: "Assessing Capacity: Substance and Procedure", on February 15, 2017.

7. THE LAW SOCIETY FOUNDATION, TORONTO LAWYERS FEED THE  HUNGRY, FEBRUARY 22, 2017

 
WEL sponsored The Law Society Foundation, Toronto Lawyers Feed the Hungry Program, and was there on February 22, 2017, to volunteer and serve meals at the Osgoode Hall cafeteria.
 
The Toronto Lawyers Feed the Hungry Program has provided hot, healthy community meals to Toronto residents in need since 1998. This important year-round program, providing more than 60,000 meals a year, is made possible thanks to generous donations to The Law Society Foundation and the work of their committed volunteers. We encourage others to donate.
 


8. COUNCIL ON AGEING IN KINGSTON, FEBRUARY 24, 2017

 
Mark Handelman spoke to The Council on Ageing in Kingston, ON, on the topic: "Consent, Capacity, Questions", on February 24, 2017.

9. LEGAL EDUCATION SOCIETY OF ALBERTA (LESA): EDMONTON, MARCH 1, 2017, CALGARY MARCH 8, 2017

 
John Poyser chaired an education program on Undue Influence that Kimberly Whaley attended in Edmonton on March 1 and Calgary March 8. Kimberly presented her paper on "Nature and Origin of the Law of Undue Influence: Attacking Wealth Transfers, Testamentary and Undue Influence".
 
Link to Kim's paper and PPT presentation
 
Kimberly spoke on a panel with professional colleagues, Helen Ward from Edmonton, Shelley Waite from Calgary, Stan Rule from British Columbia and Dr. Arlin Pachet from Calgary.

10. OBA ELDER LAW, FINANCIAL ABUSE OF THE OLDER CLIENT:

PRACTICAL LEGAL STRATEGIES TO PREVENT AND RESPOND TO THE EXPLOITATION OF SENIORS, MARCH 7, 2017
 
Kimberly Whaley moderated the Financial Literacy component: "Understanding Financial Literacy and Capacity Concerns" with professional colleagues, Laura Tamblyn Watts and Dr. Carole Cohen, who presented on financial literacy, capacity, frauds, and avoidance. 
 
Lionel Tupman spoke and moderated the Civil and Criminal Remedies for Elder Abuse component.  Lionel's panel included D'Arcy Hiltz, a lawyer very experienced in elder law issues, Constable Jason Peddle, vulnerable persons coordinator for the Toronto Police, and Investigator (detective retired) Pat Blake of the Ministry of Government and Consumer Services , formerly of the Hamilton Police Service.  Conference attendees posed many interesting questions and engaged in an in-depth discussion of the current state of elder abuse investigation, prosecution, and civil remedies.
 
Speakers and program chair also included Steven Benmor, Graham Webb, Harold Geller, Lawrence J. Swartz, Sara Behesti, Raymond Leclair, and Katherine Batycky.
 
The agenda and program can be accessed at:
 

11. INSTITUTE OF LAW CLERKS OF ONTARIO (ILCO), MARCH 7, 2017

 
Mark Handelman taught at ILCO on March 7, 2017 on the topic of: "Ethics and the Law: Privilege, Conflict and Dishonest Clients".

12. INSTITUTE OF LAW CLERKS OF ONTARIO (ILCO), MARCH 21, 2017

 
Mark Handelman will be presenting at ILCO on the topic of: "Ethical Dilemmas in Law Offices" on March 21, 2017

13. OSGOODE CERTIFICATE IN ELDER LAW, THE 2017 LEGAL GUIDE TO CONSENT, CAPACITY & SUBSTITUTE DECISION MAKING, MARCH 27, 2017

 
Mark Handelman will be co-presenting with Judith Wahl at the Osgoode Certificate in Elder Law on March 27, 2017, on the topic of: "Understanding the Health Care Consent Act: Informed Consent and Advance Care Planning".

14. OSGOODE CERTIFICATE IN ELDER LAW, APRIL 20, 2017

 
Kim Whaley and Albert Oosterhoff will be speaking on: "The Life Course Perspective and its Impact On Legal Issues" at the Osgoode Certificate in Elder Law on April 20, 2017.
 

15. STEP 19TH ANNUAL CONFERENCE, JUNE 12-13, 2017

 
WEL PARTNERS will be sponsoring this program. Kimberly is on the National Conference Committee.

16. LSUC ADMINISTRATION OF ESTATES, SEPTEMBER 29, 2017

 
Professor Albert Oosterhoff will be presenting a paper on: "Trustees' Compensation, Reimbursement, Getting Paid, and Passing of Account Applications", at the Law Society of Upper Canada Administration of Estates program on September 29, 2017.

Kimberly and Timothy Grieve will chair the LSUC Administration of Estates program on September 29, 2017.

17. LSUC 20TH ANNUAL ESTATES AND TRUSTS SUMMIT, NOVEMBER 2017


Albert Oosterhoff will be presenting a paper on the "Law of Assent" at the Law Society of Upper Canada 20th Annual Estates and Trusts Summit in November.

18. THE ADVOCATES QUARTERLY, (2017), 46 Adv. Q. 316-373.

 
Albert Oosterhoff's article: "The Discrete Functions of Courts of Probate and Construction" was published in the Advocates Quarterly, (2017), 46 Adv. Q. 316-373 and appeared in January 2017 issue. 

19. MONEY AND FAMILY LAW, JANUARY 2017

 
Kimberly's article: "Capacity to Marry, Co-habit, Separate and Divorce, Part I", was published in Money & Family Law November 2016, Issue 31-11; "Capacity to Marry, Co-habit, Separate and Divorce, Part II", was published in Money & Family Law December 2016, Issue 31-12; and "Capacity to Marry, Co-habit, Separate and Divorce, Part III", was published January 2017, Issue 32-1.
 

20. B'NAI BRITH ESTATES AND TRUST SEMINAR, MAY 23, 2017

 
Kimberly will chair the discussion session on personal liability of attorney/executor, if any, for failure to keep proper records in accordance with the SDA regulation at the B'Nai Brith Estates and Trust Seminar, May 23, 2017. 

PART II: LAW REVIEW
(i) WHEN IS ENOUGH, ENOUGH? VEXATIOUS LITIGANTS IN ESTATE LITIGATION
by Kimberly Whaley

Estate litigation often involves highly intense emotions. Sometimes (more often than not) the real issues have absolutely nothing to do with the law , but rather with childhood grievances or family issues. In a recent decision from the British Columbia Court of Appeal,[1] one son had much difficulty in accepting that several court decisions had ruled against him in relation to his father's estate. Undeterred, he continued to start claims against family members and others involved in the estate. This case examines when it is time for a party to be declared a "vexatious" litigant and be barred from commencing legal proceedings without leave of the court.

PAST CLAIMS

The son was an executor of his father's estate.  The father had been involved in a motor vehicle accident in 1994 and in or about 1995 he was diagnosed with dementia and required home support. The father's sister and brother began to care for him and he executed a power of attorney appointing his sister as his attorney in 1996. He died in 2006.

After his father's death the son commenced several lawsuits. First was a lawsuit he commenced against the sister and brother of the deceased in respect of ownership of property owned jointly with the deceased. The action was dismissed with costs against the son.

Then the son brought an action against his father's lawyer with respect to registering his father's siblings as joint tenants on the family property. This action was also dismissed after a no-evidence motion following a nine day trial. Double costs were awarded against the son. 

Then, the son brought a fraudulent conveyance action against the same lawyer and the lawyer's wife. This claim was also dismissed and resulted in a vexatious litigant order against the son in respect of further actions arising out of the facts alleged in the professional negligence and fraudulent conveyance action.  This vexatious litigant order was set aside on appeal however as the son was not present when the order was made and he had no opportunity to be heard.
 
CURRENT CLAIM

In the current case the son brought another action against his father's sister and brother, this time alleging a range of wrongful misconduct in connection with their care  of his father, including misconduct in accessing his assets to pay for his expenses.  He also alleged that they committed criminal fraud. The defendants applied for dismissal of his action and sought an order that he be declared a vexatious litigant.

The trial judge determined that the deceased's sister accessed the deceased's accounts only for his personal care expenses, and his residency and associated expenses. She was also "exceedingly conservative" in claiming expenses that she incurred personally when acting under the power of attorney. While there was no misconduct on the part of the sister while the father was alive, there was one minor issue: The sister made some expenditures after he died. She did not realize that the power of attorney expired upon his death. However, the trial judge excused any liability on her part as he found that those expenditures were made in "good faith" and without the defendants being enriched.

The trial judge dismissed the claim and declared the son to be a vexatious litigant in both his personal capacity and in his capacity as executor of his father's estate. The trial judge also awarded special costs against him.  The son had failed to adduce any evidence in support of his "grave allegations" and his action was founded on nothing more than "suspicion, conjecture and speculation". The lone argument that he advanced was that "the truth is out there".

APPEAL

The son made several arguments on appeal that the appellate court tried to distill down to arguments of error in law and fact. All were dismissed. However, with respect to the sister accessing the father's funds after he died, the appellate court did note that the trial judge provided no authority for the ability to excuse liability created under the Power of Attorney Act based on "good faith". Nevertheless, any error made by the judge in this regard was immaterial in light of his finding that the defendants fully accounted for the expenditures.

As for the vexatious litigant declaration the trial judge focused on the son's unhelpful approach to the litigation, his preoccupation with conspiracy theories, and that he instituted and maintained "vexatious legal proceedings habitually, persistently and without reasonable grounds". Section 18 of the British Columbia Supreme Court Act, RSBC 1996, c.443 governs vexatious litigant orders in that province[2] and confers a board jurisdiction on the court to control its own process.

The Appellate Court noted that the trial judge made the vexatious litigant order based not only on the number of proceedings commenced in connection with the administration of his father's estate, but also on the litigation strategy he adopted: making grave allegations without advancing any proof in support. The court chose not to interfere with the trial judge's discretion under s.18. The son now cannot commence a legal proceeding in any court (in his own capacity or in his capacity as executor of his father's estate) without leave of the court.

CONCLUSION

Courts have an inherent jurisdiction to control their own processes and to prevent abuses of that process by allowing the judicial restriction (in specific circumstances) of a litigant's right to access the courts by making vexatious litigant orders. Such orders are not made lightly. Sometimes, however, enough is enough.


[1] Semenoff v. Semenoff 2017 BCCA 17(CanLII); http://canlii.ca/t/gww5p
[2] In Ontario see s.140(1) of the Courts of Justice Act RSO 1990 c.C43.

(ii) BIRTZU V. MCCRON: WILL CHALLENGE STATUTE BARRED: OR IS IT?
by Kimberly Whaley

Birtzu v. McCron  2017 ONSC 1420 (CanLII), http://canlii.ca/t/h07hn  

A recent Ontario Superior Court of Justice decision, Birtzu v. McCron,[1] addressed the limitation period for commencing a Will challenge and when such limitation begins to run. The question of whether there is a limitation period within which a Will challenge must be commenced was not conclusively addressed in the amendments to the Limitations Act, 2002 (in effect from March 8, 2016: link to act ) .

The question has largely gone unanswered, but for perhaps the 2014 case of Leibel v. Leibel[2]. The case, found inter alia, that a Will challenge outside of 2 years was statute barred.

FACTS

The deceased who passed away on April 29, 2009 (was the father of three children). Prior to his death the father had moved in with his daughter and her family. Medical records indicated that the father began to show signs of early dementia and short term memory loss in or about June of 2002. The daughter accompanied the father to various medical appointments and to the bank and was his primary caregiver during the latter years of his life. The deceased executed a will in 2006 under which he left his entire estate to his daughter who was also the sole executor (the "2006 Will"). Her brothers commenced a will challenge claim on August 18, 2011, seeking an order setting aside the will.

LIMITATION PERIOD

The first issue addressed involved the question of whether the claim was statute barred.  Justice Bloom turned to Leibel v. Leibel where Justice Greer had discussed the application of the relevant provisions of the Limitation Act, 2002[3] and found that the two year limitation period began to run on the date of death. Accordingly, the daughter argued that the limitation period began to run the day her father died. In the alternative , the limitation ran from July 17, 2009 when the brothers' lawyer wrote to the sister's lawyer alerting her to a possible legal action , or July 22, 2009, the deadline that the daughter was to turn over the estate assets or face legal action.

The plaintiffs argued that the limitation period did not begin to run until July 8, 2010 when the daughter wrote and denied her consent to the release of her father's medical records. The plaintiffs argued that until she refused the medical records they did not "discover" they had a claim, nor should they "ought to have known" about the claim under section 5(1)(b) of the Limitations Act, 2002 until this refusal was communicated . The refusal was what demonstrated her "duplicitousness in procuring the will."

Justice Bloom concluded that the limitation period expired, at the latest, two years after July 22, 2009 (the deadline to face legal action), but noted it could have started running as early as the date of death:

Once the Plaintiffs were aware that the 2006 Will denied them any gift and that the deceased suffered from dementia, as reasonable persons they ought to have known of their claim . . . It may well be that the limitation period commenced running on the death of [the father] as envisaged in Leibel v. Leibel, supra, but in my analysis I have reviewed the matter in a more favourable light to the Plaintiffs. Based on e i ther view, the action is statute barred. [4]

OTHER LEGAL ISSUES

Despite finding that the claim was statute barred, Justice Bloom went on to discuss the other legal issues raised. First, the Court rejected the defendant's argument that the plaintiffs lacked standing, as the plaintiffs "appeared" to have a financial interest since the previous will made each of them beneficiaries and they would also be beneficiaries on intestacy. The "test requires simply an appearance of a financial interest not proof of one". [5]

On the issues of testamentary capacity and undue influence, the Plaintiffs discharged the evidentiary burden to prove suspicious circumstances, however, the defendant proved capacity and the plaintiffs failed to prove undue influence on a balance of probabilities. In coming to these conclusions, the Court did not accept the daughter's evidence with respect to her father's capacity, however it relied on evidence from others, including the drafting solicitor, a long-time friend, the deceased's family physician and an expert capacity assessor.

The evidence revealed that the lawyer who drew up the 2006 Will was chosen by the daughter and she accompanied him to the office when the instructions were provided and when the will was signed.  The lawyer considered and concluded that the father was competent. He did not exhibit any "bizarre conduct". However, the drafting solicitor did not ask his age, did not know he had Alzheimer's, nor did he ask if there was a prior will. He also did not suggest obtaining a medical opinion regarding his competency to make the 2006 Will because the lawyer felt he was competent. Justice Bloom observed "knowing that [the Father] suffered from dementia and depression would have been important considerations in his decision whether to undertake the will matter". [6]

The Court turned to the deceased's family physician's evidence and testimony which "squared" with other testimony. While the deceased had dementia at the time he executed the 2006 Will it was largely confined to memory loss. He still "understood the big things, including his needs regarding finances and medical health". [7]

A long-time friend of the deceased also gave insight into why the testator would leave everything to the daughter, including that it was in gratitude for her care and assistance to him in the last years of his life, while his sons were not acting in a similar manner.

Expert opinion evidence was also provided through a retroactive assessment of capacity and susceptibility to undue influence. The expert examined the relevant medical records and saw no documentation that indicated that the father's dementia was so severe that he could not have had testamentary capacity when the 2006 Will was executed: the father knew that he was making a will giving his entire estate to this daughter. He did so to reward her for her care and assistance; he felt that he had done enough for his sons financially.

However, the expert concluded that he was susceptible to undue influence because he was 84 and suffering from dementia and depression. The daughter made the arrangements to have the 2006 Will drafted and was the sole beneficiary. Nevertheless, this evidence fell short of establishing undue influence. There was "no proof of coercion by the daughter, nor was their proof that she subverted the testator's wishes".[8] The testator's gratitude to her and the absence of similar sentiments toward his sons explain why he made the Will in question.

CONCLUSION

This case suggests that a two year limitation period applies to Will challenges and further that while it will likely run from the date of death, it could be extended depending on when the plaintiffs "discover" their claim, or "ought to have known" they had a claim. This case is a cautionary tale for beneficiaries such that they consider acting in a timely manner when contemplating a Will challenge and not delay . Importantly however, there is no appellate decision opining on whether there is a limitation period on Will challenges and whether and what that limitation might look like in each set of circumstances. It is unknown to the writer whether this particular decision is under appeal. Notably, the Leibel decision was not appealed. Some argue there is simply no limitation period applicable to a Will challenge, in that it would be wrong to apply one given the public policy reasons behind protecting a deceased testator's testamentary intentions and the related special role of the court in matters where there is no person to speak for the deceased in such matters. The Ontario Court of Appeal decision in Neuberger[9]  http://canlii.ca/t/gnmms   provided mention of Leibel, it stated:

[104]   The motion judge relied on three cases as authority for the power to invoke estoppel to bar the Wills Challenges:  Canadian Superior Oil Ltd. v. Paddon-Hughes Development Co., 1970 CanLII 3 (SCC), [1970] S.C.R. 932; Ryan v. Moore, 2005 SCC 38 (CanLII), [2005] 2 S.C.R. 53; and, Leibel v. Leibel, 2014 ONSC 4516 (CanLII), 2 E.T.R. (4th) 268.

[112]   Leibel is the only decision of which I am aware in which estoppel has been applied when determining whether a challenge to the validity of a will should be permitted to proceed. It is an earlier decision of the same motion judge. That decision was not appealed.

[113]   In Leibel, the party seeking to challenge the validity of wills waited more than two years from the date of death to bring his application. The motion judge found that there were no discoverability issues and, thus, that the claim was statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.[14]

There may well be an appellate challenge on the important question of whether there is a limitation period applicable to Will Challenges and if so, in what circumstances. For now, some believe there is one occurring two years from the date of death of a deceased person, and there are now 2 cases which seemingly support such a position; on the other hand, others believe the argument exists that there is none and there ought not to be a limitation period applicable to Will challenges. The future will almost certainly inform us. In the interim, lawyers arguably ought to err on the side of caution and inform clients of a 2 year period within which to commence any Will challenge. By the same analysis, lawyers should not be dismissive of appeal considerations when informing clients on the merits of a claim outside of the two (2) years.

In Oestreich [10] , Justice Hayley held that the Limitations Act did not bar a Will challenge. Notably Justice Hayley's decision was rendered under the previous Limitations Act. However, in Neuberger, the Court of Appeal confirmed that a Superior Court adjudicating over a probate matter is to exercise an inquisitional approach in ascertaining the intention of the deceased. Query whether statute barring a Will challenge is antithetical to the court's inquisitorial jurisdiction in probate matters.


[2] 2014 ONSC 4516
[3] Limitations Act, 2002, S.O. 2002 c. 24 Sched. B
[4] Birtzu at para. 51
[5] Birtzu at para. 54
[6] Birtzu at para. 94
[7] Birtzu at para. 130
[8] Birtzu at para. 137
[9] Neuberger v York, 2016 ONCA 191 (CanLII)
[10]  Oestreich v Brunnhuber (2001) 38 E.T.R. (2nd) 82


PART III: UPCOMING EVENTS
Toronto Police Seminar
April 4, 2017
Powers of Attorney and Fraud on seniors
Speakers: Kimberly Whaley and Amanda Bettencourt 
 
STEP Toronto
April 12, 2017
Estate Planning for Global Families
Speakers: Jeff Halpern, Michael Cadesky and Margaret O'Sullivan
 
Osgoode Certificate in Elder Law
April 20, 2017
Parent/Adult Child & Sibling Struggles
Speakers: Kimberly Whaley & Albert Oosterhoff
 
Estate Planning and Litigation Forum, Langdon Hall
April 23-25, 2017
Pecore - 10 years later
Speaker:  Kimberly Whaley
 
LSUC Six Minute Estate Lawyer 2017
May 8, 2017
Powers of Attorney Litigation
Speaker:  Kimberly Whaley
 
STEP Toronto
May 17, 2017
Challenges of Probate Planning
Speaker: Gillian  Musk
 
B'Nai Brith Seminar
Power of Attorney and Accounting
May 23, 2017
Speaker: Kimberly Whaley
 
STEP 19th National Conference
A Case for the Standardized Assessment of Capacity
June 13, 2017
Speaker: Kimberly Whaley
Info
 
Toronto Police Seminar
Elder Abuse
June 22, 2017
Speaker: Kimberly Whaley, Lionel Tupman
 
CBA Wills Estate and Trust PEI
Capacity and Undue Influence/Attacking and Defending Gifts and a Panel of Estates Practice Do's and Don'ts, Solicitor Negligence and a view from the bench with Chief justice Matheson.  
June 23, 2017
Speaker: Kimberly Whaley
 
LSUC, Estates Administration
September 29, 2017
Chair:  Kimberly Whaley          
 
Toronto Police Seminar
Elder Abuse
October 5, 2017
Speaker: Kimberly Whaley, Lionel Tupman

STEP Toronto

Elder Abuse
October 18, 2017
Speaker: Kimberly Whaley and Professor Albert Oosterhoff
    
Ontario Police Seminar
October 2017 (TBC)
Speaker: Kimberly Whaley
 

CCEL BC

Independent Legal Advice: The Interplay of where Capacity and Undue Influence
November 2-3, 2017
Speaking: Kimberly Whaley

PART IV: RECENT BLOG POSTS
Nature of the Trust Beneficiary's Interest by Albert Oosterhoof

Law Commission of Ontario Releases Final Report on Legal Capacity, Decision-Making and Guardianship

Elder Law Web Resources

UK Case: Courts and the Objective Truth

CBC News: Renewed calls to review assisted death rules after Montreal man charged with murdering wife

Elder Abuse: The Silent Crime

Re-Introduced Merit-Based Considerations for LAO's Mental Health Appeals Program

BC Court of Appeal Confirms No Duty Owed by Drafting Solicitor to Beneficiaries under Former Will

Can You Give a Gift Which You Do Not Have?

CBC.ca: Challenge to Medically Assisted in Dying Legislation

CBC News: Can't get blood from a stone: Banks go after senior caught in extortion scam


PART V: CONNECT WITH WEL
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