WEL Newsletter - Volume 6, Number 8 - November 2016



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. 
CBA WET FUNDAMENTALS, OCTOBER 2016
 
Kimberly Whaley and Lionel presented at the CBA WET Fundamentals on October 29, 2016 on "Contested Passing of Accounts".

2. 19TH ANNUAL ESTATES AND TRUSTS SUMMIT (DAY ONE), NOVEMBER 3, 2016
 
Kimberly Whaley presented on "Solicitors' Negligence: Estates and Trusts Context" at the 19th Annual Estates and Trusts Summit.  John Poyser presented on "Capacity and Undue Influence"   and  Albert Oosterhoff presented his article:  "The Discrete Functions of Courts of Probate and Construction".
 
 
 

3. 

OBA, LAW AND THE OLDER ADULT CLIENT, NOVEMBER 16, 2016

 
Kimberly Whaley and Professor Albert Oosterhoff presented at the OBA Law and the Older Adult Client on: "Marriage, Divorce and Predatory Marriages" on November 16, 2016.

4. RBC WORKSHOP, NOVEMBER 9, 2016

Arieh Bloom presented at an executor workshop run by RBC on November 9, 2016, where he lectured on the perils estate trustees can face from a litigation perspective. The presentation analyzed the different ways estates can be challenged including Dependant Support and Family Law Elections for Equalization as between surviving spouses and the deceased's spouse's estate. The presentation was interactive as between the members of the public who attended and there was an in-depth question and answer session as surrounding the common litigation pitfalls that estate trustees face.
 

5. TORONTO POLICE SENIORS COMMUNITY CONSULTATIVE COMMITTEE

 
Andrea McEwan and Kimberly Whaley are members of the recently established Toronto Police Service Seniors Community Consultative Committee (the "Committee"). The Committee is comprised of experts in various fields relating to issues facing older adults, including elder law and gerontology. The Committee was recommended by the Toronto Seniors Strategy, which was unanimously adopted by the City of Toronto Council in 2013. The Committee's mandate is to assist the Toronto Police Service identify, prioritize, recognize and work towards solutions to issues as they relate to older adults. Areas of consultation include, but are not limited, to the following:
  • Officer training; 
  • Procedure / process; 
  • Public education and awareness; 
  • and Strategic planning.

PART II: LAW REVIEW
(i) MORRIS V. RIVARD, [2016] OJ NO. 4973 (SCJ)("MORRIS")
"Critical" Evidence Given by Lawyers in Alleged Undue Influence Case: Morris v Rivard

In Will challenge cases evidence is often provided by family members who may have their own agendas and a vested interest in the outcome of the proceedings. Drafting solicitors may be able to provide independent and neutral evidence with respect to the circumstances surrounding the drafting and execution of a Will. In a recent decision[1] by the Ontario Superior Court of Justice it was the evidence of the drafting solicitors that was deemed "critical" in determining whether the Will should stand.
 
The Facts

The deceased was the father of three children: one son and two daughters. The son worked the family farm with his father for several decades until the father was hospitalized. On August 1, 2013, the 81 year-old executed a Will. Very shortly thereafter he called his two lawyers to his hospital bed and asked them to revise his Will to ensure that the family farm remained available for his son to work after his death and provided bequests to his daughters that he considered fair. He executed this revised Will on August 23, only three weeks after he executed his previous Will.

The daughters brought an application arguing that the second Will should be rejected as the result of testamentary capacity concerns and undue influence by their brother.  The sisters recounted stories of arguments and fights between the father and brother while farming and an overheard conversation at the hospital where the brother stated "You better..." on the issue of whether the father remembered promising the son the farm property. They also argued that their brother did not spend as much time at the hospital as he should have.

Analysis of Evidence

Justice Carey noted that each of the siblings came with a vested interest in the result and that there was a clear animosity between the parties, noting that "[f]amily dynamics are complicated and it makes findings of credibility difficult."[2] Most of the evidence from the parties themselves was of "secondary importance". [3]

Instead, Justice Carey found that the "critical evidence in this case was provided by the lawyers" [emphasis added]. [4]  In particular it was noted that both lawyers:
  • were experienced solicitors who knew the deceased very well and had advised him for decades;
  • were well aware of the likelihood of a dispute arising over the 81 year old's decision to change the Will he made 3 weeks earlier;
  • were alive to the factual and legal concerns over capacity and undue influence; and
  • were both clear that there was no evidence of neurologic or mental disorder, confusion or any specific emotional circumstances.[5]
While one lawyer thought that changing the Will was "not a good idea", both lawyers confirmed that the son had no involvement in arranging for the lawyers to attend the father's hospital room. In fact, the son had no idea his father changed his Will until after his father's death (despite his lawyers advising him to tell his children). [6]

Law & Findings

While the application appears to have been rooted in both testamentary capacity and undue influence concerns, Justice Carey focused his analysis on the undue influence allegations, ultimately concluding that the applicants did not discharge their onus of proving undue influence and that the father was capable of making his will on August 23, 2013.

The court was assisted by an expert in the area of undue influence (Dr. Ken Shulman) who reviewed the statements of the lawyers and the medical records of the deceased. The expert set out seven indicators of undue influence that Justice Carey considered in a review of the evidence. Those seven indicators were:
  1. A confidential relationship existed between the testator and the influencer that created an opportunity for the latter to control the testamentary act;
  2. The influencer used that relationship to secure a change in the distribution of the testator's estate.
  3. There were unnatural provisions in the Will.
  4. The change of distribution did not reflect the true wishes of the testator.
  5. The testator was vulnerable to being influenced, either because of neurologic or mental disorder or because of specific emotional circumstances.
  6. The beneficiary actively participated or initiated the procurement.
  7. There was undue benefit to the beneficiary.[7]
Justice Carey could not conclude that there was a 'confidential' relationship between the father and son. There seemed to be a closer relationship between the father and the daughters with evidence that he confided in them. Furthermore, there was nothing "unnatural" in the provisions of the Will, it simply reflected the testator's goal to keep the farm in the family.

Justice Carey also concluded that the father resisted the lawyer's advice to forgo changing the Will because of his desire to "do the right thing" and not because of undue influence or fear.[8] The urgency of the change was due to concern over an upcoming surgery. And finally, Justice Carey found that the Will did not convey an undue benefit to the son.

Conclusion

This case is a reminder to drafting solicitors to be watchful for red flags of undue influence and capacity concerns and to take comprehensive notes in the event that you may be called to give 'critical' evidence in a case such as this one. The importance of the evidence may not be readily obvious at the time of instructions or execution but the mere recording of it may well be of assistance at a later time.


[1] Morris v. Rivard, [2016] OJ No. 4973 (SCJ)("Morris")
[2] Morris at para. 5.
[3] Morris at para. 6.
[4] Morris at para. 6.
[5] Morris at para. 6.
[6] Morris at para. 23.
[7] Morris at para. 17.
[8] Morris at para.22.

(ii) O'BRIEN ESTATE (RE), 2016 NSSC 287 http://canlii.ca/t/gv902
O'Brien Estate: Deceased's Promise to Pay for Higher Education Honoured

In this case from Nova Scotia,[1] a testator had promised to pay the university education of a young student but unexpectedly died suddenly. There was no provision in his Will to pay the ongoing university costs. Does the student have a right to enforce this promise?

The Facts

The testator was a retired Canadian citizen who had moved to the Bahamas where he met a young man who worked in the restaurant where he often ate. The testator had mobility issues and he asked for and received assistance from the young man around his home and with his personal care. During this time the testator was in a relationship with a woman back in Nova Scotia, Ms. Langille. They each maintained their own residences and separate finances, yet they visited and spent extended time with each other.

In March 2014 the testator offered to pay the young man's way to Acadia University for a four-year degree and to provide him with an apartment in return for the student assisting him with his daily tasks as he was doing in the Bahamas. According to the student and Ms. Langille, the testator initiated the offer because he liked the student, considered him to be intelligent and wanted to do something good. The student accepted the offer and, sponsored by the testator, he obtained a student VISA and was accepted into Acadia University for the 2014-2015 school year. At the end of the April 2015 school term, the student returned to the Bahamas, with the intention of returning for his second year. Ms. Langille arranged for a caregiver to assist her in providing care to the testator until the student's return.

In June 2015 the testator, anticipating the student's return asked Ms. Langille to prepare a cheque to the student for $19,000.00 to cover his 2015-2016 university fees and to give it to him upon the student's return. Unfortunately, on August 1, 2015 shortly before the student was to return, the testator died at the age of 53. Ms. Langille was named as the personal representative in the deceased's Will and she honoured the testator's request and gave the cheque to the student when he returned to Canada. She continued to provide support to him during his second academic year. However by the terms of his Will, the testator had left his entire estate in trust for his own son to be paid to him when he turned 25. There was no provision in the Will to provide for the student's further education.

The Application

An application was made to the court requesting various forms of relief. The student filed a claim to have the estate honour the testator's commitment to pay for his four year education at Acadia and Ms. Langille applied to be discharged as personal representative and for the alternate personal representative specified in the Will to replace her. She also sought approval of her accounts and a desire to be discharged without further liability to the estate.

The alternate personal representative was given permission by the court, on behalf of the son, to defend the student's claim and to contest Ms. Langille's request for approval of her accounts. The alternate personal representative also sought an order that Ms. Langille repay the $19,000.00 given to the student.

In an unreported oral decision, the Court determined that the estate was liable for the student's university costs for the academic year 2015-2016 and, so long as he remained a full-time student, for the year 2016-2017, but held that the estate was not liable for his claim respecting a fourth academic year. The Court also dismissed the application to have Ms. Langille repay the $19,000.00 to the Estate. Unfortunately there were no reasons or analysis provided for this decision. [2]

With respect to her accounts, Ms. Langille waived her right to compensation and argued that her legal costs should be paid out of the estate. She should not be out of pocket for fulfilling her personal representative duties for which she did not behave improperly. The Court agreed and Ms. Langille was awarded her costs of the applications, plus her reasonable disbursements against the Estate.

Concluding Thoughts

Unfortunately, there are no reported reasons as to why the Court determined that the Estate must honour the deceased's promise to pay for the student's education. It appears however from the cost decision that there were no documents evidencing this promise, only the testimony of Ms. Langille and the student, which the Court accepted. It is unclear why payment for only three years of schooling rather than four was made. However, this is an interesting case as it shows that there is always a risk a testator has made an enforceable promise which an estate trustee or others may not be aware.


[1] O'Brien Estate (Re), 2016 NSSC 287. Please note that this is the costs decisions as the underlying decision was not reported.
[2] 2016 NSSC 287 at paras.9 & 10. 

PART III: EVENT REVIEW
An Evening with the Judges of the Estates and Commercial List

On November 22nd, the lawyers of WEL PARTNERS joined members of JTEP and other junior estates and commercial practitioners in attending an evening with the Honorable Judges of the Toronto estates and commercial list, hosted by Torys.

The evening started with senior practitioners providing their comments on the Commercial List User Committee and the commercial list model order.  Following this discussion, the Honorable Justices Neubold, Penny, Conway, Hainey and Wilton-Siegel were invited participants in a round-table session discussing a number of topics relating to both the estates list and commercial list.  Participants were then broken up into small groups, and counsel were encouraged to ask questions.   Following the educational component of the evening, the judges and counsel were invited to a reception, where lively discussions continued.

The following issues were discussed over the course of the evening:

9:30  Appointments

These should largely be used for matters that do not require argument by counsel, such as consent orders, setting timetables and scheduling hearings.

Where a matter, originally scheduled for a 10:00 hearing, has been resolved by a consent order, the parties may request that the attendance be converted to a 9:30 appointment. 

If you are trying to schedule a 9:30 with uncooperative counsel, make your best efforts to resolve matters. If that doesn't work, write a letter to say that you will be advising the court of your efforts and his failure to cooperate.  Don't show the letter to the scheduling appointment judge, but advise the court that you made effort to speak to opposing counsel unsuccessfully.
 
Case Conferences

Case conferences can be booked in the same way as short motions, provided under two hours is required.   Case conferences are appropriate to resolve multiple issues in dispute as well as acting as a pre-trial mechanism to narrow issues and fix procedure.  Case conferences should be used more by counsel.

Summary Judgment Motions

Summary judgement motions are risky.  In some cases, a case conference may be appropriate to narrow issues in the matter, while a hybrid trial on limited issues may be appropriate where there is conflicting evidence on the record.

Electronic Documents and Electronic Trials

The filing of electronic copies of court documents in Word format and in searchable PDF format on USB keys may be helpful to the court.  There was also discussion of trials in the future proceeding entirely electronically as an initiative in progress. 

Miscellaneous Tips
  • The judge hearing the matter has, almost always, reviewed the materials filed and will be familiar with the facts - do not spend time reviewing the facts unless specifically instructed to do so
  • If a mistake has been made in the material, discuss this with opposing counsel first, then advise the court as soon as appropriate
  • In the overview or introduction portion of your submissions, identify the relief being sought
  • If an order needs to be corrected, do not write to the judge - schedule a 9:30 appointment or move in accordance with the RCP
  • Where the issues on a motion have been resolved prior to the hearing, attempt to settle costs as well - it is difficult and time consuming for the judge to decide costs without a full review of the matter
Much appreciation to Jeremy Opolsky of Torys LLP, Daniel Schwartz of Lax O'Sullivan Lisus Gottlieb LLP, and Stuart Clark and Rob Levesque of Hull and Hull LLP for their efforts in organizing this great event, and to Torys LLP for graciously hosting and to the Honorable Judges for their kind participation.

PART IV: UPCOMING EVENTS
STEP Toronto
January 18, 2017
Case Law & Potpourri of Trust Issues
Speakers: Ian Lebane, Howard Black, Timothy Youdan
 
Osgoode Professional Development
February 9, 2017
Passing of Accounts
Speaker: Kimberly Whaley, Lionel Tupman  and Birute Lyons
 
STEP Toronto
February 15, 2017
Life Insurance
Speakers: Ted Polci, Angela Ross and Florence Marino
 
Legal Education Society of Alberta (LESA), Calgary
Undue Influence
March 1, 2017
Speaker: Kimberly Whaley
 
Legal Society of Alberta (LESA), Edmonton
Undue Influence
March 8, 2017
Speaker: Kimberly Whaley
 
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
 
CBA Wills Estate and Trust PEI
Capacity and Undue Influence/Attacking and Defending Gifts
June 23, 2017
Speaker: Kimberly Whaley 

PART V: RECENT BLOG POSTS
When Does Ontario Law Say a Person Has Died?
 

PART VI: CONNECT WITH WEL
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