Undue Influence - Hull on Estates #183
Listen to: Undue Influence - Hull on Estates #183
This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag follow up a discussion about undue influence that took place at Hull & Hull’s Breakfast Series on Sept. 24th, 2009.
If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
Ian M. Hull - Click here for more Information on Ian Hull.
Suzana Popovic-Montag - Click here for more information on Suzana Popovic-Montag.
Undue Influence - Hull on Estates- Episode #183
Suzana Popovic-Montag: Hi and welcome to Hull on Estates. You’re listening to episode 183 of our podcast on Tuesday, October 13, 2009.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of
Suzana Popovic-Montag: Hi there Ian.
Ian Hull: Hi Suzana. This is Ian Hull from Hull & Hull and I’m podcasting today on audio format with Suzana Popovic-Montag.
Suzana Popovic-Montag: And we’re very glad to be back on Hull on Estates.
Ian Hull: We missed our normal turn because we were engaged in an intense trial so we’re back with the land of the living and wanted to remind people, of course, to go to our web page at hullandhull.com and look for an opportunity to give us any feedback for sure. But today’s topic is going to be focused on a follow-up from our Breakfast Series.
Suzana Popovic-Montag: And that Breakfast Series that Ian’s referring to was recently held on Thursday, September 24, 2009 and anyone who is interested in seeing perhaps an archived version of that presentation can just find that on our web page.
Ian Hull: And we are just looking on the web page right now and it’s not up quite yet but we’ll hopefully have that up by the time the podcast is launched. What we did at that Breakfast was we took an in-depth look at the question of undue influence and the types of inquiry that a lawyer or a professional advisor needs to undertake to assess and determine whether undue influence is present.
As a starting point, I had the pleasure of meeting recently with Mary Stokes from the great firm of Legge & Legge up at Yonge and St. Clair here in downtown Toronto, one of the founding estates-based firms in Canada. And they have a tremendous array of lawyers up there and headed, of course, by Laura Legge. But Mary took me to a book and she was telling me about some of the work she was doing. And she suggested I take a look at a book called “Dead Hands”. And it’s called “Dead Hands – a Social History of Wills, Trusts and Inheritance Law”, written by Lawrence Friedman. Now it’s a book that’s published in the US so it has a bit more of a US bent to some of the analysis. But it’s a fascinating read. And one of the interesting things that they have is a sort of summary of undue influence in this book, looking at it from a different standpoint, that is, a social history of Wills and trusts and inheritance law.
Suzana Popovic-Montag: And just in terms of one of the references that the book sets out there, it says that “the rather strange notion of undue influence is often paired in the cases with testamentary capacity”. And we know that that’s normally the way that we see that undue influence arises in situations. And the text actually defines it as the exercise of acts or conduct by one person towards another person with the result that the mind of the latter is subjugated to the will of the person seeking to control it. So I’m going to look to you, Ian, to just put that into a little bit more of an English definition.
Ian Hull: Well, and the way the book does it only is better than I could. It’s great. It goes on to say, and this is at page 93 of the text which is a great read, as I say. The author goes on to say “this conjures up an image of some kind of Svengali mesmerizing a person who then makes out a Will in some sort of hypnotic trance or the image of some poor, weak creature kept in slavery to a dominant personality”. And the text, the author goes on to say to remind us though however exciting and literal that is, the truth is is that more and more, most of these cases tell a much more mundane story of people who are in a vulnerable scenario and are essentially taken advantage of. And the case law talks about issues such as to watch out for indicia, looking for questions of coercion and cloistering and those kinds of things.
Suzana Popovic-Montag: You know what, Ian, I’ve just come to realize that I think you are reading these texts just to find these different analogies and these different words of interestingly describing this. I think at our Breakfast Seminar, you talked about, you know, an analogy to a snake slithering on a stone or something like that. So that’s my theory about why you’re picking up these interesting reads anyways.
Ian Hull: Well yeah, sometimes the law can be a little dry.
Suzana Popovic-Montag: Well you’re spicing it up for sure.
Ian Hull: That’s right. I can’t help but look at someone else’s notes and I’m going to pull out the snake quote.
Suzana Popovic-Montag: I knew you would.
Ian Hull: For sure. Before we get to that, let’s just take a moment. You’re going to have in the show notes a list of cases. As I say, on our web page we have, of course, the paper that we presented, Suzana and I co-presented on this topic. And it has a list of the cases in that. But it’s also going to be in our show notes as well. Also lists some interesting articles. So let’s just finish the thought of the definition of undue influence and then I’m going to come to my snake slithering comment. Because really, it seems to me, we need to know what undue influence means, to use it as a tool to make sure that we properly issue identify it in our clients. Number one, what does it mean at law? Number two, what are some of the indicia of, or what is the kind of behaviour that we should be looking for? And number three, most importantly is, I mean at the end of the day, what are some…how are the Courts dealing with undue influence generally? And so let’s start with…we’ve already talked a little bit about the definition but let’s just flush the definition out briefly again, a little further.
Suzana Popovic-Montag: Well Ian, in a nutshell, the test for undue influence is going to require coercion. And that’s something more than just, you know, a gentle suggestion to someone that they ought to do something or they ought to provide for someone. So to coerce a testator to make a gift, you’re going to look at things like the timing of the gift, the circumstances surrounding it and the fact that, as you say, the indicia is going to be key.
Ian Hull: So what are some of the other indicia that we might be looking for?
Suzana Popovic-Montag: Well things like assuming control and management of someone’s affairs, of using someone’s professional advisors like their lawyers, their accountants, their investment advisors, being actually present at the execution of the Will, reviewing drafts of previous copies of the Will and even going so far as to direct provisions in someone’s Will.
Ian Hull: Alright so when we’ve got the indicia sort of understood and where the Courts are looking for it and that we have the test, so to speak, I can’t help but turn to my article now which is a fun article in the sense that it’s got an interesting, sort of, salacious quote. But more importantly it’s from the Pittsburgh Law Review. And it’s a really important treatise. And what I’m finding more and more with my review of undue influence is that you need to go outside the legal sources to really get inside the head of an undue influencer. And this article talks about the biological roots of the undue influence doctrine. And it’s written by Lawrence Fralich, he’s a professor of law at the University of Pittsburgh. But the other articles that are in our show notes talk about other psychiatrists who have analyzed the question of undue influence. And, of course, our Lawrence Friedman book is the social history of Wills and trusts and inheritance law so a totally different perspective. You combine all of these different perspectives together and you start to get a sense of what undue influence means, instead of just talking about it. Like you say, there’s influence and then there’s undue influence. Influence is okay. Undue influence is not okay. So just because you are fussed with me reading all of the interesting quotes, I’m going to have you cite the great quote that I think reminds us that the sourcing of undue influence is always a very, very difficult case to deal with once we get to trial and how we get that evidence before a Court is boarding on impossible.
Suzana Popovic-Montag: So I’m happy to have a quote of my own and it is that it’s generally exercised in secret, not openly. And like a snake crawling upon a rock, it leaves no track behind it but its sinister and insidious effect must be determined from facts and circumstances surrounding the testator, his physical and mental condition as shown by the evidence, and the opportunity of the beneficiary of the influenced bequest to mold the mind of a testator to suit his or her purposes.
Ian Hull: So this whole idea that it is a difficult case to prove and it is often undue influence is exercised in secret, brings to it the fundamental expectation when I see clients and that is that they want to, of course, show that the sister was wholly inappropriate and unduly influenced mom but we need to, and we constantly remind our clients, that the undue influence case is probably the most difficult of the cases to prove when we are out and going about as the professor Lawrence Friedman describes it, when we’re in the process of trying to…and there’s a great chapter on breaking a Will. When we’re trying to break a Will, so to speak, at a Will contest and his chapter on that, we’re reminded of the difficulties that arise because of the fact that proving undue influence is so difficult. So what are some of the source things that we’re going to look to, to prove the undue influence itself?
Obviously third party. We want to look to third party corroborative evidence demonstrating, for example, someone overhears a conversation with someone in the hospital where the nice old lady is sitting in the bed and they hear the niece screaming at her saying “you’re never going to get out of here unless you give me your estate – I’ll make sure you stay in the hospital until you die” or something like that. And someone overhears that conversation. That third party sourcing of that is the corroborative evidence that is so important when you’re proving undue influence cases.
Suzana Popovic-Montag: And the truth is, Ian, that undue influencers are good at what they do many times. And you’re not necessarily going to find that, you know, clear-cut evidence of the fact that someone’s twisting another person’s arm. So the circumstances, you know, a pattern of history of transactions that are done, or things that are done over the course of someone’s lifetime can speak to it as well. And those are the more difficult cases, of course, to prove.
Ian Hull: Right. And we can prove it by telling the story. Telling the chronological events that are relevant to the types of cloistering and coercion allegations that we would want to pursue.
Alright, well we wanted to hash that out a little further. And as I say, for a more comprehensive review, please go to our web page and it is under the Hull & Hull Breakfasts where Suzana and I had a bit of a roundtable discussion about this as well. So thanks so much, Suzana, for joining us today on Hull on Estates.
Suzana Popovic-Montag: Thanks to you too, Ian. It was great being back on Hull on Estates.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.
Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.
