Theft From an Estate
On Monday I suggested that criminal proceedings in estate matters might become more common and on Tuesday I followed up by discussing a case where a lawyer was convicted for misusing trust funds.
R. v. Saunders (2000), 189 N.S.R. (2d) 43 dealt with criminal charges against an executor who took money and GIC’s from the estate for his personal use. He then failed to comply with a Court Order that he pay the money back. When charged with theft, he claimed to be ignorant that he did not have the authority to use the estate’s money as his own and argued that the Order to return the money was “irrelevant and wrong”. Finally, the accused claimed that he believed he had the power under civil law to do what he did, so there was no intention to commit a crime.
The Court found that, while the executor’s powers to deal with estate monies were broad, they only extended to what was necessary for the administration of the estate and he could not convert those monies to his own use. The executor, a lawyer of 40 years’ worth of experience, claimed that he genuinely believed his conduct was legal. The Nova Scotia Supreme Court did not believe that testimony and the executor was convicted of theft. He appealed and lost.
As in the Bunn case I discussed yesterday, the mens rea (intent) requirement was easier for the Crown to satisfy because the defendant was a lawyer. A layperson doing the same thing and claiming ignorance might be harder to convict and the Crown less willing to lay charges.
Thanks for reading.
R. v. Saunders (2000), 189 N.S.R. (2d) 43 dealt with criminal charges against an executor who took money and GIC’s from the estate for his personal use. He then failed to comply with a Court Order that he pay the money back. When charged with theft, he claimed to be ignorant that he did not have the authority to use the estate’s money as his own and argued that the Order to return the money was “irrelevant and wrong”. Finally, the accused claimed that he believed he had the power under civil law to do what he did, so there was no intention to commit a crime.
The Court found that, while the executor’s powers to deal with estate monies were broad, they only extended to what was necessary for the administration of the estate and he could not convert those monies to his own use. The executor, a lawyer of 40 years’ worth of experience, claimed that he genuinely believed his conduct was legal. The Nova Scotia Supreme Court did not believe that testimony and the executor was convicted of theft. He appealed and lost.
As in the Bunn case I discussed yesterday, the mens rea (intent) requirement was easier for the Crown to satisfy because the defendant was a lawyer. A layperson doing the same thing and claiming ignorance might be harder to convict and the Crown less willing to lay charges.
Thanks for reading.
