Scrutinizing Evidence in a Will Challenge

Posted on June 18, 2009 by Hull and Hull LLP

The recent case of Re Henry (2009) CanLII 12329 (ON S.C.) is an excellent illustration of how a court scrutinizes evidence in a will challenge. 

In Re Henry, the deceased died on May 28, 2005.  Two weeks earlier, on May 12, 2005, he had made a Will designating his second wife as his sole beneficiary.  The deceased's son from a prior marriage challenged the will on the grounds of undue influence, lack of testamentary capacity and lack of knowledge and approval of the contents of the will.   

The trial judge found in favour of the second wife on all issues: due execution was shown, the deceased had testamentary capacity along with full knowledge and approval of the contents of the will.  The challenger's evidence, which consisted largely of his and his sister's testimony, did not bear scrutiny: some of it was inadmissible, testimony appeared reconstructed as opposed to remembered, testimony contained factual inconsistencies, legal submissions contained errors of law and so on.  By contrast, the evidence brought by the second wife was accepted in whole.

No new law is generated in Re Henry, at least not per se.  But there is a concise consideration of the applicable standard of proof which will be helpful for any lawyer making submissions regarding evidence in a will challenge.  Newbould J. points out that the principle in Vout v. Hay, [1995] S.C.R. 6 that evidence of suspicious circumstances must "be scrutinized in accordance with the gravity of the suspicion" may no longer be good law as a result of F.H. v. McDougall, 2008 S.C.C. 53.  F.H. v. McDougall states "[t]here is only one legal rule and that is in all cases, evidence must be scrutinized with care by the trial judge."  So which is it: Vout v. Hay or F.H. v McDougall? 

Having laid out the jurisprudence, Justice Newbould states:

"I need not decide in this case whether the passage from Vout v. Hay that I have referred to is still good law because in my view the evidence is the same regardless of whether the evidence is scrutinized with greater care in accordance with the gravity of the suspicious circumstances.  I have taken care to scrutinize all of the evidence".

Have a great day,

Chris Graham

 

 

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The Millionaire, His Mistress, His Will & the ex-Governor

Posted on April 15, 2009 by Hull and Hull LLP

A current Georgia case vividly illustrates the legal, emotional and moral complexity often involved in estates litigation.  According to the reports, Harvey Strother died at age 78, having succumbed to progressively severe alcoholism brought on by the tragic death of his daughter at age 23.  Strother had built up a formidable nest of car dealerships around Georgia, dying with a net worth of about US$37 million.  And a mistress 30 years his junior. 

At issue are 3 amendments to Strother's 1988 will in favour of his mistress.  The will had left the bulk of his estate to his wife, their children and grandchildren.  But one amendment gave his mistress a $7,900 monthly allowance, a second gave her health insurance and an island condo in Florida.   The third - signed about a month before Strother's death - gave her a Cape Cod cottage, a Florida boat slip and a Florida condo to her son.  By that time Strother was drinking 1.5 gallons of wine a day (about 6.8 liters, or 9 bottles of wine).

At trial, the jury upheld the first two amendments, worth about $4.5 million to the mistress.  However, the third one was invalid.  Strother, was allegedly drinking even before he signed it and brought to the lawyer's office by his mistress, and his signature was illegible. 

The family is appealing the two amendments that were upheld, one on the basis that the witnesses were not even present (the mistress is appealing the third amendment struck out by the jury).  Interestingly, the family is represented by Georgia's ex-Governor Roy Barnes, who points out that the requirement for two witnesses "is an elementary part of the law that has been there since the time of Edward II."  FYI, King Edward II, 1284 - 1327: yes, we deal with old law in estates litigation. 

Have a great day,

Chris Graham

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Ouch! It hurts...

Posted on April 13, 2009 by Hull and Hull LLP

...but every recession has lucky people too.  To save you hours of watching cable news and reading, here's a snapshot of good news and bad news on the legal profession in Canada and around the Common Law world:

  • IN THE CROSS-HAIRS: with companies trying to pare their legal budgets between 6% and 35%, the #1 target for general counsels is... 
  • THANKS BERNIE: a freakish confluence of circumstances, including the Madoff scandal, is allowing top rates for UK regulatory lawyers to hit a stunning USD1,440/hour.  That's professional athlete territory, only now it's being paid to people with minds. 
  • FAMINE IN IRELAND: hundreds of unemployed solicitors.  Bleak prospects.  All that remains is for the potato harvest to fail.
  • TRANSACTIONS: law firm mergers up 33% in the US.  This, though, is an indication of nothing definite.  Mergers ideally result in "efficiencies of scale", with a real-world meaning of fewer bodies doing the same work (we each had 2 doing the work of 1.5.  Now we can have 3 doing the work of 3) or "economies of scope" (you do this, we do that, let's merge and cross-refer).
  • RED SKY AT NIGHT OR IN THE MORNING?: major US law firm posts record revenue of $668 million for the fiscal year ended March 31, 2009, up 2.2%.
  • SALARY FREEZES: by a major US law firm.
  • PAY CUTS NOT TERMINATIONS: a major US law firm institutes $17,500 pay cuts, others may follow.   Required measure for the entire US economy?
  • THE COLD EQUATIONS: the problem simplified. (apologies to Tom Godwin)
  • THEN COME THE TERMINATIONS
  • "DEFERRED EMPLOYMENT" IS NOT DEFEAT: a peptalk to grads facing an economic wasteland. 
  • BOOM TIMES 
  • LAW FIRMS FIRING: especially US firms, unsurprisingly.
  • BUT LAW FIRMS HIRING: in Canada, apparently mostly in bankruptcy and litigation.
  • AND BLACKBERRY DEFIES RECESSION: attaboy!  Any good news is very good news.

Times are always interesting. 

Have a great week,

Chris Graham

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The Horror: Sean Connery's Son Required to Get a Job

Posted on July 23, 2008 by Hull and Hull LLP

Imagine that one day, you were told you had to get a job.  You were told to go make a living, and that hard work was good.  Not only that, you would have to work FOR THE REST OF YOUR LIFE. 

According to virtually every news source in the British Isles, that's exactly what Sir Sean Connery is being accused of doing to his only son, Jason.  This shocking revelation appears to have been exposed by a former wife of the former 007 star, Diane Cilento.  The root cause may be Sean Connery's experience with really, really hard work reportedly as a barrow-pusher in Edinburgh's industrial sector (back when Edinburgh had an industrial sector), as a milkman, and other tough jobs prior to superstardom.  Sean Connery reportedly wanted Jason to develop a work ethic. 

Sean Connery's fortune is estimated at 85,000,000 pounds - about USD$170,000,000 - and his son Jason allegedly won't see any of it, according to Cilento, because Sean Connery has left him out of his Will.  Apparently, after a tough go of it in the 1980's, Jason works and even earns a successful living as an actor and film director in his own right. 

Perhaps the most interesting thing about this story is that a hugely wealthy and successful father forcing his son to get a job is a newsworthy story.         

Have a great day at work,

Chris Graham

 

 

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