Preparing for Trial - Hull on Estates #231
Listen to: Preparing for Trial
This week on Hull on Estates, Nadia Harasymowycz and Natalia Angelini discuss preparing for trial, specifically when doing a Will challenge.
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Nadia M. Harasymowycz - Click here for more information on Nadia Harasymowycz
Natalia R. Angelini – Click here for more information on Natalia Angelini.
Preparing for Trial - Hull on Estates- Episode #231
Posted on November 30, 2010 by Hull & Hull LLP
Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to episode number 231 on Tuesday, November 30, 2010.
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 Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Nadia Harasymowycz: Hi and welcome to another episode of Hull on Estates. I’m Nadia Harasymowycz.
Natalia Angelini: And I’m Natalia Angelini.
Nadia Harasymowycz: If you want to be heard on Hull on Estates you can participate by leaving us a comment. Email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.
Natalia Angelini: So hey Nadia, I think this is our first time podcasting together.
Nadia Harasymowycz: I think it is.
Natalia Angelini: So this should be good. We’re doing an interesting topic for us since we just came out of some pretty intensive trial preparation. We thought it would be timely to discuss preparing for trial and particularly when you’re doing a Will challenge.
Nadia Harasymowycz: I think one of the things as litigators we often forget in the estates world is that most of our matters probably don’t get to full on trial prep and we end up doing a lot of mediation and settlement beforehand and the nuances of preparing for trial are often not as honed as we’d like them to be.
Natalia Angelini: Right, but the good thing about preparing for trial is that it does force you to get all of your ducks in a row and if you’ve got that in mind from the outset, I think it does help streamline your case. And we thought we would sort of say some things that we find helpful.
Nadia Harasymowycz: If we take it back to basics and look at how to start preparing for trial, you need to look at all the people with a financial interest or who may have a financial interest in the proceedings to make sure that they’ve been given notice. You don’t want to end up at your first day of trial and find out that somebody who should have been there actually isn’t.
Natalia Angelini: Right that would be a huge waste of expense. I think you’d have a client, a pretty upset client at that point. But yeah, I think that goes without saying, that you want to have that in place. Also another thing that you would want to have that should go without saying is having a complete understanding of the inventory of the assets of the estate.
Nadia Harasymowycz: That’s clearly critical when you’re challenging a Will to determine who the beneficiaries are, what their rights are going to be, and what kind of assets you’re dealing with if you are going to be proceeding so that you can argue it properly.
Natalia Angelini: Right and when we talk about moving on to your client and what your client’s personal circumstances are and what the personal circumstances of the witnesses are, I think it’s really important to think about their age. Because their age and health circumstances and even financial circumstances, I’ll get to that in a moment. But when it comes to their age and health status, if it’s necessary, you know you want to think about maybe taking evidence before trial, under Rule 36 of the Rules. Bianca La Neve and I podcasted on this some time ago, but you really want to avoid the situation where you’ve got, you know, elderly witnesses that develop some kind of problem or unfortunately pass on before you get to trial and then you’ve potentially compromised your case. So I think it’s good to keep an eye, especially in this type of…especially in this field, when you’re dealing with older witnesses most of the time that you keep that consideration top of mind.
Nadia Harasymowycz: Even if the individual you’re… you have as a witness or is your client is not necessarily in a position that their age would be a consideration in respect of maybe not being able to appear at trial, it should be given some consideration so that you recognize the fact that the client or the potential witness may never have been involved in litigation, may not understand the requirements of being a witness or what the process will be. And so preparing them for those kind of situations will be critical to your trial prep.
Natalia Angelini: Right and touching on the point I raised earlier about financial circumstances, you know, given that the trend of cost awards in estate litigation has gone towards a loser pays system, like the civil system, clients I suppose, should know that this is the trend and that there is a risk in going to trial and a very costly thing to go to trial. And, you know, we like to have that discussion right at the outset and definitely at other times throughout the litigation, where needed. Which is why we, you know, are quite happy to go to mediation in most or all of our cases because, you know, it’s a great tool we find in really forcing the parties to realistically look at their financial interest and look at the assets that are at stake. And you know, more often than not, come to a resolution.
Nadia Harasymowycz: I suppose if all those avenues fail and you do end up at trial, it’s important to look at the legal issues themselves and ensure that you’ve properly researched all the potential areas that are going to be brought up at trial. Generally, as we mentioned, we’re going to be discussing Will challenges today and if you’re looking at setting aside a Will, looking at the lack of testamentary capacity, whether or not there’s undue influence, if suspicious circumstances and lack of knowledge and approval surround the execution of the Will, whether or not there’s due execution, if there’s fraud or forgery and fully flushing out those issues before you get to the eve of trial is really important.
Natalia Angelini: Right and one of the ways to do that is at discoveries making sure that you’ve got…or even through your Order for directions, but I mean, definitely by discoveries you want to be able to get the medical evidence and medical opinions that would be relied on. And that would include, you know, hospital records, doctors’ records. Even, you know, solicitor’s records which can speak to some of those issues and are really quite key in a lot of cases.
Nadia Harasymowycz: And that brings me back to one of my earlier points actually that you can’t ever forget that when you’re preparing witnesses for trial, after you’ve reviewed your hospital records, your solicitor’s notes, that the evidence of the individuals who made those records is going to probably be key to your argument and noting that trial is a unique experience for them and making sure that they understand the importance of their evidence and how to present it at trial.
Natalia Angelini: Right, I mean, I think in a lot of Will challenges the lawyers that are giving evidence are not necessarily litigators. They’re usually, you know, estate planning counsel and they may be just as uncomfortable with testifying as any other person. So carefully preparing them is definitely going… can’t hurt, it can only help.
Nadia Harasymowycz: I think along that line if you’re looking at the evidence of, you know, the hospital records or individuals who are relevant to the litigation, you need to keep that in mind when you’re preparing your Requests to Admit and your Evidence Act notices which have to be filed timely prior to trial so that you can move towards a simpler and more organized trial in general.
Natalia Angelini: Right. And you know we all know that our experts have to be lined up well in advance and you know the Rules have requirements, not just for the content of the report, but also, you know, the expert’s got to sign a document acknowledging their duty to be neutral and you’ve got to make sure you’ve served their CV as well in accordance with the timelines under the Rules. So having all that diarized, you know, we found that to help us.
Nadia Harasymowycz: I think as a last recommendation I would suggest that while you’re going through all your preparation and witness notes and documents, it may be helpful to prepare a chronology of events that has been run by opposing counsel or opposing parties, simply in order to assist the judge and all the parties at the trial while the evidence is being put forward. If you have an agreed upon Statement of Facts it’s also helpful to have an agreed upon Chronology.
Natalia Angelini: Right, and before we end though, I did want to speak about your cross-examinations on trial that you’re going to be preparing for. You know, if suspicious circumstances have been alleged, then it’s gonna affect how you want to organize your witnesses. For example, you know, the propounder of the Will should really work through witnesses so a clear story can be told.
Right. And before we sign off, I did want to touch base on preparing your examination notes on a Will challenge. And if you’re going to be examining the lawyer whether you’re propounding or challenging, I think it’s important to cover topics like, getting that evidence out of the solicitor about their general practice when drawing Wills, specific recollections made, you know, with respect to preparing the Will. You know, referring the lawyer to the Law Society Rules which …sorry, not the Law Society Rules, the guidelines, the Law Society guidelines that relate to drawing Wills and you can use that as a type of benchmark.
And you can also, you know, get that other information about how familiar the lawyer was with the client and for how long and what they did to ascertain capacity. And then, you can, you know it’s good to go over the issue of, you know, the testator’s assets and what questions were asked by the lawyer about those assets and what investigations were made about the possibility of the exercise of incapacity or… sorry the exercise of undue influence or a lack of capacity. So it’s good to cover all of that, no matter what side you’re on when examining the lawyer for the deceased. And it may be… it seems to us that there are different…you want to take different approaches when you’re acting for someone who’s propounding the Will or challenging the Will. So when you’re propounding the Will you may want to consider, first you know your focus is proving the Will. So once you elicit that evidence to establish that there was due execution and then you examine your lawyer who prepared the Will and took instructions to attempt to deal with the issue of testamentary capacity and knowledge and approval and even undue influence and suspicious circumstances, if it’s applicable to your facts. And then you can, you know, call other professionals like doctors, followed by interviewing or…sorry, examining relatives and friends of the deceased who knew the deceased’s condition around the time of execution. So you, sort of, that’s the order of examining and eliciting evidence that we find is helpful.
Nadia Harasymowycz: And then if you’re a Will challenger you should start off by potentially looking at the attending physicians or nurses or any medical staff that may have relevant information and then call on lay witnesses and conclude with a lawyer who can give evidence on any prior Wills that were prepared by the testator.
Natalia Angelini: Right. So I guess that’s the different approach you take because you’re on the attack and you really want to draw the focus to the lack of capacity, the undue influence. I guess you would elicit that from your other lay witnesses, and finally the, you know, provisions of prior Wills that would, I presume, help your case. So of course this isn’t, you know, this isn’t set in stone, these are just our thoughts based on what we find is helpful when dealing with a Will challenge scenario, be it either on the side of the propounder or the challenger. So I think we can... I think that’s brings us to the end of our podcast today.
Nadia Harasymowycz: Thanks for listening and thanks for joining me today, Natalia.
Natalia Angelini: Thanks, Nadia.
Nadia Harasymowycz: We look forward to hearing from our listeners. You can send us an email at hull.lawyers@gmail.com. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed our show. I’m Nadia Harasymowycz.
Natalia Angelini: And I’m Natalia Angelini, take care.
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.
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