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Listen to Dependency and Undue Influence

This week on Hull on Estates, Diane Vieira and Paul Trudelle discuss dependency and undue influence in the case of Bale vs. Bale. This topic is also discussed by Paul Trudelle in his blog post:

If the link does not work, cut and paste the following URL into your browser:

http://estatelaw.hullandhull.com/2008/04/articles/topics/estate-trust/dependency-and-undue-influence/

Dependency and Undue Influence - Hull on Estates Podcast #108

Posted on April 29^th, 2008 by Hull & Hull LLP

 

Diane Vieira: Hello and welcome to Hull on Estates. You’re listening to Episode #108 on Tuesday, April 29^th, 2008.

 

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.

 

Diane Vieira: Hi and welcome to another episode on Hull on Estates, I am Diane Vieira.

 

Paul Trudelle:  And I’m Paul Trudelle. Hi Diane, how are you today?

 

Diane Vieira: I’m good, how are you?

 

Paul Trudelle: Very good, thank you for filling in.  You are filling in for Megan Connelly, who was going to be podcasting with me this week, but she ran off to South America.

 

Diane Vieira: Yes.

 

Paul Trudelle: She got out of it.

 

Diane Vieira: Yes

 

Paul Trudelle: She didn’t take any trust funds, and she is coming back so there’s nothing  wrong with her going. We hope she has a very good time, and I thank you for joining me today. You have a busy week.  In addition to podcasting, you are also blogging this week.

 

Diane Vieira: Yes I am. So it is…I will be featured heavily on the website this week.

 

Paul Trudelle: Yes. Today we thought we would spend some time and talk about a situation that arises in a lot of matters that we see.  It is the type of situation where there is an elderly person with two or three adult children.  The elderly person wants to provide for all of them, however the elderly person is often closer to one of the children.  And prior to death, a property gets transferred to that one child to the exclusion of the other children and they are not able to share in that other property, once the estate falls into place.  And that causes them much concern and leads to a lot of litigation.  So we thought we would talk a little bit about that today.

 

Diane Vieira: And we are going to discuss a case that you actually wrote a blog on last week, its Bale vs Bale.  And the facts in that case is similar a situation as you just pointed out.  There is a mom who, in her Will, leaves her estate to her three sons equally.  But prior to her death, she conveys her farm to one of the sons.  The son being the child who is taking care of her and the other two sons in the situation were actually not very much part of her life and didn’t provide any care for her and where the applicant’s position was that they were estranged from her.

 

Paul Trudelle: Right.  There was a bit of an issue is to how close these other children were and that usually is the case and there was evidence heard from both sides as to how close they were.  But I think for the purposes of discussion today, we can just presume that the one child was significantly closer to the mother than the other two.

 

Diane Vieira: So, just a bit of a background on what happened here was a few years prior to her death, the main asset of the estate was a farm.  And the mother gave the farm to the applicant.  And there was testimony as to the capacity of the mother to make this gift with respect, because the other two sons challenged her…challenged this gift and said it was given to the other son under undue influence.

 

Paul Trudelle: That’s right and there was actually some fairly extensive evidence from the solicitor who acted on the transaction and also from her family doctor as to her capacity and both the solicitor and her two family doctors felt that while she was elderly and frail, she did have capacity and she understood what she was doing when she gifted this farm to her one son.  Then the mother passed away and the one son brought an application to get a declaration that the gift was valid.  The other two children brought a cross-application to say that the gift was not valid and was a result of undue influence.

 

Diane Vieira: In the situation the mother, at the time of the gift, was ninety-three years old and a dependant of the applicant.

 

Paul Trudelle: I think that is quite important that evidence with respect to dependency. The mother was living with the son, she was quite adamant that she didn’t want to be moved into a nursing home and by living with the one son, she was able to avoid having to move into a nursing home, although she was found to be quite, you know, vulnerable and dependant and relied on that one son for essentially all of her care

 

Diane Vieira: The judge in this case noted that even though the mother likely did have capacity, she was very vulnerable at the time the gift was made in terms of she was just coming out of the hospital and didn’t want to go to a nursing home.  So that point came out in determining whether or not this was under undue influence

 

Paul Trudelle: That’s right and I think that is very important.  In looking at undue influence, we see undue influence with respect to gifts.  We also see it with respect to Wills that are often said to be the result of undue influence.  And the case law often states that undue influence is beyond influence, it must be undue and it must amount to arm twisting or coercion in the normal course.  If you are making an allegation of undue influence, however, that is quite different where there’s a relationship of dependency or vulnerability.

 

Diane Vieira: In this case, the judge did see a relationship of dependency and suggested that it was up to the applicant to rebut the presumption of undue influence.

 

Paul Trudelle: That’s right, and it’s because of that presumption that the onus shifts onto the receiver of the gift.  Presumption of undue influence doesn’t apply in every relationship, although it does apply in certain relationships such as a solicitor and client relationship, parent-child,  guardian and ward, and we are seeing it more and more in other relationships of dependency such as an elderly parent and an adult child.  And in this case, the judge found that there was a presumption of undue influence and in his analysis went through the cases in which you would find a presumption of undue influence and what follows from that. 

 

I think after finding a relationship of dependency, the Court will then, as set out by the judge in the  Bale and Bale decision and referring to the Goodman Estate and Geffin decision from 1991, a Supreme Court of Canada case.  After there is a finding of a relationship of dependency that gives rise to a presumption of undue influence, the Court will then look at the nature of the transaction.  If it is a commercial transaction or a sale or other transfer, they will look at whether there was consideration or not.  With respect to other transactions like this one where there is a gift, its not that easy to do that, so what the Court will then look at is the onus moving on to the defendant to rebut that presumption.

 

Diane Vieira: And in this case, the applicant, as part of his evidence, was he offered medical testimony in terms of capacity and her disappointment with her other sons.  However the judge rejects this in a way.  What he expected was evidence that this was a transfer made out of gratitude and that was something that neither the lawyer or the applicant spoke of, the reason for this transfer.  And he found that suggested undue influence.

 

Paul Trudelle: Right and I think they said that, the Court there said that in order to rebut the presumption, it would have to be a result of the mother’s full, free and informed thought.  She was extremely vulnerable and dependent upon the son for her care and that vulnerability tainted the transaction, so to speak.  And the Court concluded that the decision to convey the farm was the result of undue influence by reason of her dependency.

 

Diane Vieira: In this situation, do you think it would have made a difference if the mother had independent legal advice?

 

Paul Trudelle: I think that would help and I think if there was independent legal advice we would have perhaps some evidence with respect to the transaction and the reason for it.  Here there was legal…a lawyer was involved and documented the transaction but there was some question as to how the mother got to see the solicitor and as he stated, there was an absence of any notes with respect to the reason for the transaction, it seems.  So on the issue of undue influence and vulnerability as discussed there was a finding that the gift was made as a result of this undue influence, presumption of undue influence because of the dependency the elderly mother. The Court found that while there was a great deal of affection between the mother and the son and it didn’t say that there was anything improper about the relationship, you know, the Court felt that there wasn’t…the affection that they shared for each other wasn’t sufficient to validate the transfer of the farm to the son.  I think it is important to note there that the farm was essentially all of the estate and would leave the other children with nothing.

 

Diane Vieira: Another issue that was decided was in terms of the accounting that the applicant provided.  He did take a number…some money from his mother’s bank account while he was caring for her.  He used some of this money to purchase a truck.  He testified the truck was being used to transport the mother back and forth from medical appointments and what not.  In this case, the judge found that this truck was a gift.

 

Paul Trudelle: Right and I think just because it was a much smaller amount relative to the value of the estate and because of the findings of capacity, the elderly mother was said to have known about this gift and approved of it and consented to it.  I think because it wasn’t all of the estate, the Court was prepared to let that gift stand, whereas a gift of the entire estate was seen as too much.

 

Diane Vieira: And the judge also found that the respondents, the other two brothers, failed to prove their claim for a loss of occupation rent.  That was going back to the request that the other brother pay them the rent for the farm they had been using.

 

Paul Trudelle: Right and I think again the Court wanted to be seen as, you know, being fair and balancing that.  They didn’t allow the farm to go to the son but they weren’t going to turn around and charge him occupancy rent for staying in the property during that period because of the assistance he was providing to his mother.

 

Diane Vieira: So in the end, the judge ordered that the sale of the farm be set aside under the grounds of undue influence, while dismissing the respondents’ other requests for damages and occupation rent.

 

Paul Trudelle: Right and I think that is a good and useful discussion of that case.  It’s the type of case, as we said, that we see often and I think all of the circumstances surrounding any gift of property by a deceased prior to death need to be looked at.  It’s not just enough to say, well, what’s in the estate and how is it divided now? You’ve got to step back a little bit and see what was in the estate and where did it go, if it was a gift during the lifetime of the testator, was it a gift made while she had capacity, was it a gift that may be tainted by undue influence as a result of his or her dependency.

 

Diane Vieira: Do you think it would have made a difference if the mother in this case, since she did have capacity, made a new Will?

 

Paul Trudelle: I think it might have. I think again the same analysis that the Court went into with respect to undue influence with respect to the gift might be used with respect to an allegation of undue influence regarding the Will, if, rather than gifting the farm, she simply made a Will leaving the entire farm to her son, the same arguments would have been made, I expect.

 

Diane Vieira: I think that brings us to an end of this week’s discussion. Thanks for listening and thanks for joining me today, Paul.  

 

Paul Trudelle: Well, thank you very much. Diane, and we’ll speak to you again soon.

 

Diane Vieira: And we look forward to hearing from our listeners.  You can send us an email at hull.lawyers@gmail.com or just pick up the phone and leave us a message or comment at 206-305-6636.  Be sure to visit our blog at estatelaw.hullandhull.com where you will find even more information and discussion on today’s practice of estate law. And you can find the case citation for Bale vs Bale on our website. We hope you enjoyed the show. I am Diane Vieira.

 

Paul Trudelle: I am Paul Trudelle.  And until next week, we’ll talk to you then.

 

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.

 

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Over the Christmas break, a news story out of Winnipeg captured national headlines. Samuel Golubchuk is 84 years old and on life support in Winnipeg’s Grace Hospital. He apparently suffered a brain-injury from an earlier fall and part of his brain was removed at the time. Tragically, Mr. Golubchuk cannot walk, speak, eat or breathe on his own. His treating physicians say Mr. Golubchuk has no chance of recovery and that his quality of life is negligible. They want the right to remove him from life support. The news stories don’t indicate whether Mr. Golubchuk left a power of attorney or end-of-life instructions.

Mr. Golubchuk's family has gone to court to resist any attempt by the hospital’s doctors to remove him from life support. Mr. Golubchuk’s family claims that removing life support would violate Mr. Golubchuk's orthodox Jewish belief and amount to an assault as it would hasten his death.

In early December, the family was granted a temporary court injunction while a local judge considered the case. In January, the family returned to court and presented two opinions from New York doctors. According to the family’s doctors, Mr. Golubchuk was not beyond hope. 

The family has maintained throughout that it is a matter of self-determination and the right to live in a free and democratic society without an outside party making decisions for you. The hospital, on the other hand, maintains that it is up to the treating physician to make a judgment call as to whether or not life support should be removed.

As far as I can tell, the judge hearing the case has still not decided what will happen to Mr. Golubchuk. However, it is clear that the courts struggle with life and death decisions as much as guardians or family members do. There are simply no easy answers. In the end, I think it is difficult to say how any one of us would act or react when confronted with the ultimate decision.

Keep thinking and thanks for reading.

Justin

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Listen to Getting Off the Record

This week on Hull on Estates, Sean Graham and Natalia Angelini dicuss the unfortunate circumstances that usually accompany the process of getting off the record.

 

Getting Off the Record - Hull on Estates Podcast #85

Posted on November 13^th, 2007 by Hull & Hull LLP

 

Natalia Angelini:  Welcome to Hull on Estates, podcast #85 for Tuesday, November 13^th, 2007, with Sean Graham and Natalia Angelini.

 

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.

 

Sean Graham:  Hi Natalia, how are you?

 

Natalia Angelini:  I’m good, Sean.  How are you?

 

Sean Graham:  Oh, pretty good, thanks.

 

Natalia Angelini:  That’s good.

 

Sean Graham:  We figured we’d chat about getting off the record in estate litigation.  Hopefully this doesn’t happen too often, because it has a bit of a detrimental impact on a practice, but there are some cases where, for whatever reason, the lawyer or the client decides that the solicitor/client relationship is not proceeding as smoothly as it needs to, and needs to come to an end.  And this is provided for in the Rules and Natalia, maybe you could just chat about the Rules for a second.

 

Natalia Angelini:  Sure.  Rule 15 is the relevant Rule and there are several subrules that we need to know for this area.  And Rule 15.04 is the subrule dealing with the situation where a solicitor brings a motion to be removed as counsel of record.  And 15.03(3) deals with the situation where your client serves a Notice of Intention to Act in Person.  And 15.03(1) deals with new counsel serving a Notice of Change of Solicitors.  So those are sort of the basic Rules that we’re going to be dealing with today.

 

Sean Graham:  And, of course, those are the Rules of Civil Procedure for Ontario, for anyone who’s not listening from Ontario.  So, those are the Rules and it allows…it’s a little bit odd in that it allows a lawyer to essentially become a party to the proceeding, only for the purpose of being removed, of course.  But…so it’s a little bit odd because the lawyer is becoming, at least for a moment in time at least, a party to the proceeding.  So, with respect to the name of the lawsuit, and when you file that Notice of Motion, does that change, Natalia?

 

Natalia Angelini:  No, it doesn’t change.  What simply happens is you indicate underneath your firm address that you are proceeding as the moving party.  You don’t otherwise change the style of cause.  And another thing that you need to be aware of is only your client gets served with the materials, which are filed with the Court.  The other side in the litigation does not get served with the materials.

 

Sean Graham:  You wouldn’t have to show up and argue that even though your client wanted you removed, the other side likes you so much that they want to keep you on for the lawsuit.

 

Now, there’s an easier way, and I think you mentioned it, and that’s the Notice of Intention to Act in Person.  Can you talk about that a little bit?

 

Natalia Angelini:  Sure.  It’s something that I like to utilize when I see that I’ve got no choice but to get off the record and one of two things will happen.  Either your client raises the issue that they want to continue on their own and you tell them what they need to do, to do that.  And they’ll either prepare and file it on their own, or what I do as a courtesy, I will prepare and serve and file the Notice of Intention to Act in Person, on behalf of my client.

 

Sean Graham:  And I generally accompany the client copy of that document with a letter setting out all the reasons why it’s dangerous to act on your own.  But, for sure, it’s their decision, no question about it.  And if they feel that they don’t need you or for whatever reason, things aren’t working, I think you have to take the approach all the power to them, wish them the very best of luck and let them go on their way.

 

Natalia Angelini:  And I think it’s important what stage of the proceeding you’re in when your client is doing that.  You certainly want to make sure that there’s no some hearing that’s imminent or examination that’s imminent because the last thing you want is your client being prejudiced because they’ve commenced acting for themselves at a critical point.  So, you know, what that may mean is that you may have to stay on for a little bit longer than you anticipated, or you arrange with opposing counsel for a brief adjournment of whatever matter was scheduled.  And if that doesn’t work, you may just, to cover yourself off, bring your motion in any event and get the Court to order an adjournment as part of your motion.

 

Sean Graham:  Yeah, I guess the most frightening scenario is that the client serves you on their own accord with the Notice of Intent to Act in Person the day before an important hearing and instructs you that you’re done, don’t show up.  And I suppose all you can realistically do is send a letter saying, please let me get an adjournment so that you can be prepared, maybe seek other counsel.  But if they tell you no, then unfortunately that’s their prerogative and again, wish them the best of luck.

 

Natalia Angelini:  I totally agree.

 

Sean Graham:  Now, obviously there’s a whole lot of reasons behind the filing of these documents.  And maybe we can just turn to that for a second.  There are many reasons clients come to lawyers and there are just as many reasons why they decide to leave lawyers.  So one of them…we’ve sort of grouped them into headings…and one of them is the relationship.  Just like any relationship, professional or personal, sometimes it just doesn’t work.  And maybe you could talk about that for a bit.

 

Natalia Angelini:  Thanks, Sean.  I think there’s a few reasons why this can happen and often times, it’s that you are not seeing eye-to-eye, you’re not communicating in a helpful way or communications have simply broken down.  Other times, it’s because your client has done a disappearing act and you can’t get a hold of them no matter what you do.

 

Sean Graham:  Yeah, and there’s a lot of clients who have the same complaint, that’s for sure.  They figure their lawyer has done a disappearing act and they don’t get letters and they don’t get responses, and that can lead to a fair amount of acrimony as well.

 

Natalia Angelini:  That’s right.  And if I recall correctly, one of the last surveys LawPro did, that came up as one of the lead reasons for complaints being commenced.

 

Sean Graham:  Yeah, and it’s…it can be hard, I think, to answer every communication right away.  And you know a lot of files and all that.  But you really…you really have to try to do it.  It’s an ongoing fight and the sooner you get back to clients, even with bad news, I think the happier they’ll be just to know that you’re on the matter.  And if you’re not, then you may find yourself getting served with the Notice of Intention to Act in Person.

 

Natalia Angelini:  Exactly.  And in this case, if you’re bringing the motion to get off the record, then it’s right…the opposite scenario.  And you certainly don’t want too much time to pass without communication, because you may find your legal fees are increasing while you’re continuing to attempt to represent your client or follow through with certain steps until you’re actually off the record.

 

Sean Graham:  And the other thing I’ve found on communication, as opposed to not enough communication, is too much communication.  So you send advice to your client and they respond back to you, with that’s fine, thank you for the advice, don’t do it, do something else. And you send them another letter saying, well, here’s a reason I don’t think that’s a great idea.  And they get back to you and say that’s fine, thank you for your reason, just do what I say.  And you know that you’re heading down a path which is not going to help the client. You try every way you can to advise them, because that’s all we can do, we don’t get to make the calls, the decisions, they do.  But we certainly advise and if that advice is completely not being followed or it appears that it’s not being understood, that is a real problem as well, I think.  And it can reach the stage where you feel you need to get off the record and maybe someone with different or better communication skills can take it from there.

 

Natalia Angelini:  Good point, Sean.  And I think that sort of ties in to another reason why this course of action is necessary, and that’s lack of capacity.

 

Sean Graham:  Yeah, and this is extremely touchy, in my experience.  It’s one of the toughest things to say to a client.  You know, I think that maybe you’re not understanding my advice because I believe you may be struggling.  And as an officer of the Court and as an advocate for you, I need to satisfy myself that you can actually understand my recommendations before either agreeing with them or overruling them.  And there are cases where you may need to tell your client with whom you may have been dealing for quite some time and everything’s been fine, that you believe they may be suffering from some sort of lack of capacity.  I can’t think of a more difficult solicitor/client conversation than that one.

 

Natalia Angelini:  Absolutely.  It’s certainly a touchy area and…sorry…

 

Sean Graham:  And then I find sometimes you need to say, well, I believe you may be a party under disability, and that’s covered by a different Rule.  But I need to satisfy myself that you’re not.  And so I do need a capacity assessment of your capacity to understand this lawsuit and give me instructions.  And a few things can happen from that.  You can get fired outright.  You get your Notice of Intent to Act in Person or Notice of Change of Solicitors.  The client can disagree, can agree to have the assessment, in which case, you wait for that assessment eagerly and hope that you’re wrong, always, of course.  But if you’re right, then you may need to then move to have a litigation guardian appointed.  And I know we’ve dealt with that in another podcast, so we won’t get into that here.

 

Natalia Angelini:  Thanks, Sean.  And so I think one of the last, you know, reasons that you would get off the record is…well, one of the obvious ones anyway…is non-payment of your legal fees.  And I think we all try to give our clients some leeway and an opportunity to become current.  But if it becomes clear that your…the legal fees are mounting and, you know, there’s not going to be payment of them, then you really…it’s time to pull the chute.

 

Sean Graham:  And I find with that one, like you say, you really try to give the clients every opportunity.  I find the toughest one is where lack of legal fees are combined with the client not agreeing with your advice.  And so, for example, if the fees haven’t been paid and you’ve told the client  all along that the fees would be high and you’re covered that way, but the client says I don’t want to talk about negotiation, I want to go to trial, I don’t care, and you’re not getting paid.  Those two fact scenarios are quite inconsistent from the lawyer’s point of view and that can really be the final straw, I find.

 

Natalia Angelini:  Um hmm, um hmm.

 

Sean Graham:  And then I guess the last one, I’d just briefly mention, is if, whenever a client asks a lawyer to do something which is fundamentally dishonest, whether by sort of tricking the Court by putting clearly false facts or anything like that.  I think you may have a problem; you may need to get removed from the record.  I’d say 99 times out of 100, you can explain to the client why it almost never makes sense to be dishonest anyway.  It always sort of comes back to bite you.  But once in a while, you cannot make that argument and that may be another reason to get removed.

 

Natalia Angelini:  Right, and if you don’t, you should really take a look at the Rules of Professional Conduct, which would probably sway you towards bringing that motion.

 

Sean Graham:  Yeah.  And the one last point I’d comment on is costs.  Once you’ve brought that motion, my experience is that you can pretty much expect not to get paid, certainly for your costs of the motion.  You may ask for it; most judges don’t award it.  What are your thoughts on that, Natalia?

 

Natalia Angelini:  My thoughts are that it’s really…I see no point in seeking costs on that motion anyway.  The way I would do it, because usually you’re in a situation where you’ve got other legal fees owing anyway, is I would immediately after I get the Order, I would have my account assessed.  And then you would, at least, get covered for costs from beginning to end in any event.  And with respect to the Order that you get on that motion, I just want to remind counsel that you really have to follow the language of Rule 15.04.  The Order has got to very clearly set out the contact information of the client.  And if you look at the Rule, it’s very clear as to how it has to be.  But the form is…the Courts are quite strict on having the proper wording in there.

 

Sean Graham:  Well, I hope that’s helpful.  I mean, I don’t imagine it’s particularly new to any lawyer listening.  But certainly I always find it’s good to hear some of the basics again once in a while.  And I hope that’s of use to people.  Thanks so much, Natalia.

 

Natalia Angelini:  Thanks Sean.

 

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.

 

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Over the next week, I will blog on a variety of topics within the estate and and trust world. I will canvas notable case law as well as draw on my recent experience. My first topic deals with evidence.

It is crucial when litigating to amass the right evidence. A great deal of thought usually goes into deciding whether to litigate, but once that decision has been made, the right evidence has to be put forward in order to win or to facilitate a favourable settlement. Much of what litigators now do is by way of application so affidavit evidence is key. The beauty of affidavit evidence is that it allows the lawyer time to draft or finesse the evidence - not change it, but just present it in its most persuasive format.

When dealing with a will challenge and capacity, the notes of the solicitor who drew up the will are obviously critical, as is any medical evidence particularly from a family doctor. In a guardianship fight, medical evidence is again key, but so is evidence from family or friends. However, when deciding what evidence to submit, a careful litigator will take the time to decide what evidence is required over and above the usual. In other words, what avenues are worth exploring that may reveal the unexpected. Is there some person who may be able to add fresh evidence that will make the difference and carry the day?

In a recent guardianship case that I was involved with, the evidence of two neighbours turned out to be critical. The neighbours were able to comment on the slow deterioration of the incapable. As family members had applied to the court to be appointed guardians, the neighbour were also able to comment on whether the family members visited and how often. The neighbours, who still kept in touch with the incapable, were also able speak to the wishes of the incapable when it came to who should look after the incapable. A caregiver at a nursing home was also in a position to comment on the mental state of the incapable and, in fact, assisted a doctor who was retained to prepare a retrospective assessment. What the neighbours and the caregiver brought to the table was the fact that their evidence was credible and independent. In other words, they had no particular stake, one way or the other, in the outcome of the litigation. They were simply interested in doing what was best for the incapable. When it comes to evidence from outside or third parties, their evidence will likely be believed because it is seen as untainted. As a result, every effort should be made to get evidence from outside or third parties and from sources that may be out of the ordinary.

Thanks for reading.

Justin

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January 15, 2007 articles from the National Post and the Globe and Mail describe breakthroughs in Alzheimer’s research.

This encouraging news raises the possibility that we may be closer to a cure for this terrible disease, or at least treatments to slow the onset. Families struggling daily against the ravages of dementia can now see some light at the end of a very long tunnel.

Capacity law could be greatly affected as well. Current assessments to determine capacity, such as the capacity to manage property or the capacity to execute a Will, mix elements of science (such as cat scans) with the experience and judgment of the capacity assessor. Different assessors come to different conclusions in close cases.

As science can better identify and isolate genetic causes of dementia, we can expect more accurate tests. We might even see partial or comprehensive cures for dementia diseases. If so, patients who have lost capacity might recover it. Someone unable to sign a binding Will in 2006 could theoretically regain that ability in 2008.

This opens a Pandora’s box of fascinating questions. For example, if John Doe loses capacity in 2005 and regains it in 2010, who’s to say if he would name the same beneficiaries in 2011 as in 2004? Conceivably his personality may be significantly different after recovering capacity than it was before he lost it.

A beneficiary’s joy at recovering a loved one could be tempered by losing an inheritance.

Thanks for reading.

Sean Graham

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The recent decision of the Ontario Superior Court of Justice in the matter of Hutchison v. Hutchison [2006] O.J. No. 3231 (W.A. Jenkins J.) provides an illustration of the court considering the concepts of undue influence and testamentary capacity.

The plaintiffs in this case were three of the four children of the deceased. The defendants were the youngest child, and the child’s wife.

The evidence as considered by the court seriously called into question the capacity of the deceased. By 1996, the deceased was showing early signs of dementia. In 1998, he was found in his car, parked on a railway track. He was disoriented, and was taken to hospital. He was diagnosed as suffering from dementia. While in the hospital, he wandered away, and had to be returned by the police.

Following his diagnosis, he was released from the hospital and lived with the defendants at his home until his death in February, 2002 at the age of 86.

Shortly after his assessment in 1998, the deceased transferred his home to his youngest son. He also transferred his investment account. He then made a new Will wherein he bequeathed the whole of his estate to his youngest son. (In a prior Will, executed in 1992, he divided his estate equally amongst his four children.)

The plaintiffs gave evidence that the deceased was suffering from dementia as early as 1995, and that he wasn’t aware of what was happening around him.

With respect to the transfer of the assets, the court did not rely on any consideration of the issue of incapacity, but rather, set aside a transaction on the basis of undue influence. The court found that the deceased was, as of 1998, in failing health and dependent on the defendants for his care and comfort. The court stated that against this background, the defendant must show that the deceased entered into a transaction as a result of his own free will and informed thought. The court found that there was a presumption of undue influence based on the deceased’s failing health, and also based on the fact that the defendants took steps to convince the deceased that his other children were attempting to take his money.

With respect to the validity of the will, the court found that the deceased was confused and disoriented, and was suffering from dementia when he executed the new Will in 1998. The Court found that there was reason to doubt the deceased’s capacity to make a new Will and, consequently, the onus shifted to the defendants to prove the deceased’s testamentary capacity on a balance of probabilities. The court found that the defendants had failed to prove that the deceased had testamentary capacity when he gave instructions with respect to his new Will, and when he actually executed his new Will.

(Actually, the onus of proving testamentary capacity is always on the propounder. More accurately, and as the court indicated in the decision, the existence of suspicious circumstances may rebut the presumption of capacity, thus requiring the propounder to prove knowledge and approval and testamentary capacity.)

As a result, the transfer of the property and the investment accounts was set aside, as was the 1998 Will.

Have a great day.

Paul Trudelle