This week on Hull on Estates, David Smith and Jonathan Morse review some of the recent podcasts and hone in on some of the evidentiary requirements of a common-law spousal relationship as it relates to dependant support claims under the Succession Law Reform Act. They look at some recent case law and some of the requirements under the Ontario statute.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.
 

A Review of Dependant Support Claims - Hull on Estates Podcast #130

Posted on September 30^th, 2008 by Hull & Hull LLP

David Smith: Hello and welcome to Hull on Estates. You’re listening to Episode #130 on Tuesday, September 30^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.

Jonathan Morse: Hi and welcome to another episode on Hull on Estates. I’m Jonathan Morse.

David Smith: And I’m David Smith.

Jonathan Morse: If you want to be heard on Hull on Estates you can participate in our discussion by leaving a comment. Give us a call at 206-350-6636. The number is in the show notes along with our e-mail address, hull.lawyers@gmail.com, or you can visit our blog at estatelaw.hullandhull.com.

David Smith: Good morning, Jonathan.

Jonathan Morse: Good morning, David. As I am a relatively new associate at Hull and Hull, I thought I would review several of the recent podcasts to see if I could identify a topic that has not been covered in depth for some time.

David Smith: Well that was quite an undertaking, Jonathan. How did you make out?

Jonathan Morse: Well, I enjoyed myself, to start.

David Smith: There’s certainly a lot of material, isn’t there?

Jonathan Morse: There sure is. I focused on podcasts so far in 2008, and with the blogs I went back a bit further. I honed in on the topic of dependant support claims, and particularly, the evidence required to make a successful claim by dependants.  And to hone in even more, I realized that Section 57 of the SLRA, that’s the Succession Law Reform Act defines dependant. One of the categories of dependant is spouse, and I thought it would be helpful, certainly for me anyway, and I thought for listeners, to delve into the evidentiary requirements for spouse, particularly some of the elements of common-law spouse required under the SLRA.

David Smith: You know that’s a great topic, Jonathan, and what I’d say about that topic, specifically, is that nine times out of ten, when you go in front of a judge on a support claim when you’re contemplating a claim, either defending the claim or advancing the claim, I find that the biggest growth area right now is where people are trying to push the envelope as to who is a spouse, and whether there’s been cohabitation for a sufficient period of time. So a good topic and a lot of interesting stuff on that.

Jonathan Morse: Thank you. Before we delve too far into that distinction, I guess I’d like to remind listeners of some recent podcasts on this topic, to provide some context for today’s discussion of dependant support claims, and particularly the evidence required to prove a common-law relationship.

David Smith: Okay, thanks, Jonathan. You know the topic of today is fitting, especially when you see by looking at yesterday’s blog by Bianca La Neve. It’s a situation where a widow there applied for support from the deceased’s estate.  And in that case, McDougall and McDougall Estate, a 2008 Ontario Superior Court decision, that was a second marriage and not a common-law situation.  But you know, it does highlight the point that support claims are more and more common as I said at the outset. And here in this case, the widow’s claim was denied because it was not driven by need but rather her wish to live the lifestyle she had enjoyed with the deceased prior to a period long before he became ill. And an important point to remember is that the Court looks at support and dependency immediately before death. While there is some case law that suggests, that can be a bit fuzzy on that point, that was an important point to highlight for sure.

Jonathan Morse: I guess following that, a classic example of a common-law situation is when the children of the first marriage hope to deny that their parent had a common-law relationship with the person claiming that he or she was a common-law spouse. Looking further in my review of our recent material, more than two years ago, Suzana Popovic-Montag wrote in her blog, several entries in a series that asked the question, is there support after death? In Part 3 of that, she answered the question of who is a dependant, and that was on June 28, 2006. More recently, on May 20, 2008, Rick Bickhram and Sean Graham discussed evidence issues in estates, when a main party is deceased. In particular, they focused on Section 13 of the Evidence Act and the requirement for corroborative evidence.

David Smith: And let’s just touch on that a little bit more and just explain that requirement. The key witness in any of these claims, Jonathan, is deceased, right? I mean we’ve got a situation where the person who could best tell whether the claimant was, in fact, being supported by the deceased, obviously is deceased. Section 13 speaks to that, it says you’ve got to have corroboration, you’ve got to have material evidence that touches on the issue. The kind of corroboration you want may be in the manner of, if there’s a challenge to whether the two were living together, you’re going to want perhaps bills that were mailed to the address showing both names of both people who were living there together, you’re going to want some witnesses who can attest to the nature of the relationship, that sort of thing, so a very important point. And as I understand it Jonathan, you also found another podcast that touched on this issue.

Jonathan Morse: That’s right, thank you David. I refer listeners to July 1, 2008, just at the beginning of the summer.  The podcast by Natalia Angelini and Craig Vander Zee, and they discussed dependant relief and again, the Succession Law Reform Act. In particular, they focused on recent case law, including the line of cases culminating in Cummings and Cummings, decided by the Supreme Court. They left off their discussion by citing two other cases, Reid and Reid, that’s R E I D and Reid, a 2005 Ontario Superior Court of Justice case and Parelli and Foley Estate, a 2006 decision by the Ontario Superior Court of Justice.

David Smith: Right, and just one clarification there or comment, Jonathan, is that, of course, Cummings was a Court of Appeal decision.  But I understand that Reid and Parelli, it’s expanded upon some of that and why don’t you tell me a little bit about those.

Jonathan Morse: Sure. In Reid and Reid, it was useful because of Justice Snowie’s analysis of the particular evidence. It’s not necessarily on point with this discussion regarding common-law spouses, but I’ll be brief. Reid and Reid involved the daughter and two grandchildren of the testator, and the three claimants were claiming that they were dependant on the testator. The estate was about $200,000. The son of the testator, so the brother of one of the claimants, did not agree that his sister and niece and nephew were dependants.  The Court found they were dependants and that a testator’s support need not be direct financial support.

David Smith: I think that’s an important point, and you know, that’s an important clarification of the blog that we referenced that Bianca did, where, in that case, the Court was critical of the fact that there was no need. Certainly coming out of Cummings we have a regime which clearly says that you do not have to be in need, in financial need and in dependency in a financial sense to be eligible for support. Cummings has expanded the need and the concept of support beyond simply financial need.

Jonathan Morse: Thanks, David. The next case, Parelli and Foley Estate, that was decided in 2006 and it’s certainly more on point with today’s discussion.  And in this case, James Foley separated from his wife and subsequently moved to Niagara Falls, and that was in 1988, to a home that he purchased. His girlfriend at the time, a woman named Paula Parelli, gave up her apartment in Toronto that same year and moved to live with Foley. Foley relied on his income from investments while Parelli, she continued to work. Their incomes were comparable, according to the findings by the Court, and in the range of about $25,000. They each contributed to the upkeep, maintenance and operation of the household in Niagara Falls. Foley cooked, did the yard work, washed the kitchen floor, while Parelli cleaned up after dinner, did the laundry and cleaned the house generally. So in 1998, Foley developed Alzheimer’s and in 2000 Parelli quit her job to look after Foley. Then Foley, unfortunately died in 2003. 

So in this instance, the estate, including the value of the home, was about $510,000. There were bequests to family members and allowance for Parelli to stay in the home five months after Foley’s death. In this case, Parelli claimed a constructive trust, which the Court allowed, but only for the period during which she had to give up her job to care for Foley, so that was from the period of 2000 to 2003. The Court did not find there was a nexus to the property though, so the dependant’s support claim for the common-law spouse succeeded by increasing the amount of money left to her on top of the money left to her in the Will.

David Smith: You know, that’s a good illustration, Jonathan, of the interplay between a constructive trust claim and a support claim.  And it helps also advise counsel as to creative lateral thinking, because there the Court considered the fact that Section 62 provides that housekeeping and domestic services provided by the spouse can be factored into any calculation of a support claim. So an interesting way, and it shows the power of Part 5 of the Succession Law Reform Act, and the degree to which it allows the support claimant to realize an entitlement that they couldn’t realize from a constructive trust claim. Really good point.

Jonathan Morse: Just to hone in on a definition for a moment, David, the SLRA defines spouse, does it not?

David Smith: That’s right. A spouse is either of two persons who are not married to each other, and who have either cohabited continuously for a period of not less than three years, or in a relationship of some permanence, if they are natural or adoptive parents of a child.  So it’s a looser definition of spouse than under the FLA, for example.

Jonathan Morse: And I guess I’m envisioning that in sort of the world of different relationships that arise, that trying to determine whether a relationship is actually common-law or not, can be quite tricky sometimes.  And I think the definition leaves room for debate because there seem to be so many unique facts, or different fact scenarios. I guess I point to a case, and it was an earlier case in 1999, in Saskatchewan, which provides insight into the evidentiary issues that arise in determining whether or not a common-law spousal relationship exists.  And I think the same factors would apply in Ontario, and maybe you can speak to that, David.

David Smith: Yeah, one thing I would say is generally across Canada, the support regimes are very similar, there’s very little difference among any of them.  And, you know, a lot of the cases from one province can be used and applied in another, subject to any minor discrepancies in wording. But you know, Jonathan, looking at the time, I see that we’re actually getting close to our limit here in terms of having to wrap this up, and I know that there’s an awful lot we can talk about here.  But maybe just in summarizing, can you just give me a sense of what you gleaned in a sort of summary way from your review of the blogs and podcasts?

Jonathan Morse: From the review of the blogs, well we certainly have, we provided a lot of material and I think, certainly for a new lawyer in this area, it can be somewhat overwhelming because there is a large amount of information.  But it’s helpful information as well and provides good direction, a good resource to certainly dig into cases and I think texts, in some respects, to provide good guidance with respect to these different issues including that of common-law relationships and what constitutes the common-law relationship.

David Smith: And tell me, Jonathan, just as a lawyer newly specializing in this are of law, were you surprised by the power and breadth of the Succession Law Reform Act as it relates to the dependency claims?

Jonathan Morse: I think I am, yes, because it’s a powerful tool, and certainly clients are recognizing its power and certainly in this time when there’s a lot of wealth transfer happening, individuals are certainly looking to, when an estate arises, they’re looking to how they might resolve situations that have arisen within their family context and coming to us to look at their options under the Succession Law Reform Act.

David Smith: Right, and you know on a final point, I think it highlights the obligation that there should be upon a drafting solicitor who’s making a Will, to ensure that the testator is aware that dependants or people who might qualify as dependants could make claims against the estate and effectively undermine what the testator might think is his last Will. So it’s always a good point for a drafting solicitor to consider. Well, look, Jonathan, lots of fun. I really enjoyed podcasting with you, and I think that brings us to the end of this week’s discussion. Thanks for listening, and thanks for joining us today.

Jonathan Morse: It was a pleasure, David. I look forward to podcasting with you again soon.

David Smith: And that’s right, and you know, Jonathan, we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com, as we said at the outset, or just pick up the phone and leave us a message on our comment line at 206-350-6636. And 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 you enjoyed the show. I’m Dave Smith.

Jonathan Morse: And I’m Jonathan Morse. Until next week, so long.

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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This week on Hull on Estates, Megan Connolly and Sean Graham review the Golubchuk case out of Manitoba and discuss the Health Care Consent Act of Ontario.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

The Golubchuk Case and the Health Care Consent Act - Hull on Estates Podcast #123

Posted on August 12^th, 2008 by Hull & Hull LLP

Megan Connolly:  Hello and welcome to Hull on Estates. You’re listening to Episode #123 on Tuesday, August 12^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.

Megan Connolly:  Hi and welcome to another episode of Hull on Estates. I’m Megan Connolly.

Sean Graham: And I’m Sean Graham.

Megan Connolly:  If you want to be heard on Hull on Estates, you can participate in our discussion by leaving a comment. Give us a call at 206-350-6636. The number is in the show notes along with our e-mail address which is hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Sean Graham: Hi Megan, how are you?

Megan Connolly: I’m fine, how are you?

Sean Graham: Pretty good thanks. Well we thought we’d start off today by speaking about the Golubchuk case out of Manitoba and then segway into discussion of the Health Care Consent Act of Ontario which would have applied in the Golubchuk case had it been an Ontario case, but of course, it was Manitoba. So maybe Megan, if you can just sketch out the Golubchuk case it might be helpful.

Megan Connolly: Sure. The case arose at the end of 2007 in November, where an elderly man was admitted to the hospital and was severely ill. At the time he was admitted he couldn’t breathe on his own, he was on a ventilator, there was a tube down his throat, his brain was functioning but not very well; he couldn’t walk, he couldn’t speak and as a result of a cardiac condition, his heart wouldn’t beat properly.

Sean Graham: And it seems that the doctors, or some of the doctors at least, seem to have been pretty sure that Mr. Golubchuk was not going to recover and that continued life support measures, or extraordinary measures, whatever term you want to use, were not benefitting him and it seems as though the doctors, most of them at least, were of the view that life support should be discontinued. On the other side, it looks as though some of Mr. Golubchuk’s children felt differently and wanted to prolong his life.

Megan Connolly: Right. So what the doctors wanted to do, as you said, was remove the patient from the ventilator which isn’t an unusual thing to do when doctors have decided the person is not going to get better and, of course, when the family agrees. Now in this case, the elderly man’s children said first of all, that the removal of the ventilator or the withdrawal of the life support would require the consent of the children, that the removal of the ventilator or life support by the doctors would constitute assault and would constitute battery, in that it would, at a minimum, hasten the elderly man’s death. Another issue that was raised was the fact that the withdrawal of the life support would seem to contravene the man’s religious beliefs. He was an Orthodox Jew, and the analogy they used was imposing blood transfusion on a Jehovah’s Witness. I guess the religious belief for Jehovah’s Witnesses would preclude the use of a blood transfusion.

Sean Graham: So I understand that it looks as though the hospital was of the view that the family did not understand adequately at least, the seriousness of Mr. Golubchuk’s condition, that the conclusions reached by the doctors were acceptable and conformed to the standards the doctors felt themselves needed to apply, that the withdrawal of the medical treatment could well be in Mr. Golubchuk’s best interest, even if it meant that he would succumb to his illnesses, and that the decision to withdraw medical treatment is that of the physician and not that of the patient or the Courts. And so it was quite an argument that was set up in this case between the family and the medical professionals.

Megan Connolly: Now, in November 2007, the family won a Court injunction preventing the doctors from withdrawing life support and a few weeks later the Court ordered that the matter be set down for trial. Now, while this took a toll on the family, it also took its toll on some of the doctors at the hospital. A number of them resigned, saying that their personal conscience and their professional ethics prevented them from continuing to provide medical interventions that, in their mind, would harm a patient without any prospect for future benefit. 

Sean Graham: Even though the matter was set down for trial, it never made it to trial because Mr Golubchuk died. And so the delays we often encounter in the trial system in this case really meant that there was a tremendous amount of controversy and difficulty and stress, and in fact that the system did not end up giving the parties the chance to argue the matter and find out what the Court would have believed at the end of legal arguments.

Megan Connolly: Now the family had originally brought a law suit against the hospital, although last week I saw an article saying that they’d since abandoned the law suit.  So I guess with respect to this matter, nothing further is going to happen in the Court system.

Sean Graham: Yeah, it looks that way. And I think it’s helpful to turn to the Act in force in Ontario that would cover some of these issues, and that’s called the Health Care Consent Act. And Section 10 of the Health Care Consent Act talks about needing consent before treating a patient.

Megan Connolly: And what that Act says, is that when a doctor, or I guess a health care practitioner, proposes treatment for someone, they can’t administer their treatment unless the person consents to it.

Sean Graham: Now the question, of course, is what’s consent?

Megan Connolly: Um hm.

Sean Graham: And so the Act helps us out there also by stating out the elements of the consent, and there’s four elements. I’ll just go through them. The first is that the consent must relate to the treatment, so that’s fairly self-explanatory. The second is that the consent must be informed so the patient must have some understanding of exactly what they’re getting into. Third, and this is kind of obvious I think, but it’s there anyway, the consent must be given voluntarily.  And then finally, which is also obvious, the consent must not be obtained through misrepresentation or fraud.

Megan Connolly: And this goes into, I guess, the next aspect of consent, which means it has to be informed consent. Now the issue of informed consent has given rise to enough litigation although it’s probably the purview for today, but I guess, basically put, the patient needs to be provided with sufficient information about the treatment so that they can, in a knowledgeable and informed way, consent to it.

Sean Graham: And the statute goes into a little bit more of a definition stating that the consent is only informed if, before giving it, the person consenting received the following information, and there’s a list in subsection 11(3) of the Health Care Consent Act. There’s six items. The first is that the person needs to know sufficient information about the nature of the treatment; (2) is the expected benefits of the treatment; (3) the material risks of the treatment; (4) the material side effects of the treatment; (5) alternative courses of action; and then (6) the likely consequences of not having the treatment. 

Now in Mr. Golubchuk’s case, I’m not sure that would have ever been possible for Mr. Golubchuk.  It’s not clear to me whether he had any chance really, before he was in the position that led to this case, whether he had any chance to obtain treatment.  But certainly by the time this case came to the forefront, he did not have capacity and so a different section of the Act, which is entitled “Consent on Incapable Person’s Behalf” would have applied, and maybe you can just take us through that, Megan.

Megan Connolly: Right, so as you said, I mean it’s great for someone to consent, but it’s not unusual for someone to just not be able to consent, and in this case I think the man was in a coma and couldn’t speak and didn’t really understand what was going on around him.  So you can’t have informed consent, but obviously it doesn’t make sense to say, well we’re just not going to treat someone if they can’t consent. So when somebody is incapable of consenting to treatment, and that doesn’t mean they won’t consent to it because they don’t want to but they’re mentally or physically incapable of providing that consent, the Act provides for a list of people who can give or refuse consent on the person’s behalf. There are eight different people, starting with the person’s guardian of the person or their attorney for personal care, if they have one. They don’t always have one. The next person to be able to give consent is somebody who has been appointed as the incapable person’s representative by the Consent and Capacity Board.  After that it would be the incapable person’s spouse or partner.  Next it would be the children or parents of the incapable person.

Sean Graham: And if there is the Children’s Aid Society or it’s a situation where the Children’s Aid Society has lawful authority to give that consent, they can stand in the place of the parent. And it’s noteworthy that this paragraph does not include a parent who has only a right of access.  So this could have family law ramifications as well if spouses are in the course of or have completed matrimonial litigation.

Megan Connolly: So the parent who only does have a right of access may have the right to give the consent to treatment on the person’s behalf but not if there’s a parent who, I guess, has custodial rights.  And after that it’s a brother or sister, then any other relative. Now like I said, this is a rank order, so number one is the person’s guardian of the person and then you go down the list if no one else can provide consent.

Sean Graham: Now one aspect I found that was interesting in this is that the meaning of spouse is defined, and it makes a certain amount of sense because it needs to be clear that a spouse making this choice has to be a spouse under an ongoing relationship. Subsection 8 of Section 20 states that “two people are not spouses for the purposes of this section if they are living separate and apart as a result of the breakdown of their relationship”. I think it’s pretty clear why that section is in there.

Megan Connolly: Now when it comes to giving or refusing consent, the person just can’t do it arbitrarily. There are certain principles that they have to take into consideration when making a decision.

Sean Graham: Now that’s someone appointed under this section.

Megan Connolly: Yeah.

Sean Graham: An individual deciding on their own, my understanding is as long as they are capable, they in fact, could be arbitrary.

Megan Connolly: Right.

Sean Graham: But, a substitute decision-maker is a different kettle of fish.

Megan Connolly: So the first thing they have to take into account is whether they are aware of any wish the person has made previously that would deal with situations where consent had to be given.  So when capable, had they always been clear that if they were incredibly ill and weren’t going to recover, maybe they’ve stated while capable that they’d want support withdrawn. Alternatively, maybe they’ve said the opposite.

Sean Graham: There’s a list in Section 21 of the Act that sets out the factors to go into this. I think that, for the purpose of wrapping up, I think that maybe one of the best principles to come out of this is to be very careful in choosing an attorney for personal care because that is really the only way that someone can exercise any kind of control in planning for a situation where someone else is going to have to make the decision for them. I guess you can tell your family members but you’re not really sure who’s going to be around and who’s going to be making that decision.  So it seems to me the best way to try to have some control over these types of decisions is to appoint an attorney for personal care to make them on your behalf and then have a long heart-to-heart with that person, maybe more than one, as the years go on, in order that they will have some background in order to help them make that decision.

Megan Connolly: Right. So thank you very much. It’s been nice talking to you, as always, Sean.

Sean Graham: Yeah, thanks a lot, Megan. It was certainly a pleasure and I look forward to podcasting with you again soon.

Megan Connolly: Well I think that brings us to the end of this week’s discussion. Thank you for listening and thanks for joining me today. And we look forward to hearing from our listeners, so you can send us an e-mail at hull.lawyers@gmail.com or just pick up the phone and leave us a message on our comment line at 206-350-6636. Be sure to visit our blog at estatelaw.hullandhull and the and is a-n-d not ampersand .com where you’ll find even more information and discussion on today’s practice of estates law. We hope you enjoyed the show. I’m Megan Connolly.

Sean Graham: And I’m Sean Graham, until next week, so long.

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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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.

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