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Listen to Will Challenge Litigation - Part 12

This week on Hull on Estate and Succession Planning, Ian and Suzana clarify the distinction between claims of resulting trust and claims of constructive trust.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

Will Challenge Litigation Part 12 – Hull on Estate and Succession Planning – Podcast #137

 

Posted on November 7, 2008 by Hull & Hull LLP

 

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada.  From the offices of Hull Estate Mediation in Toronto, here are Ian and Suzana.

 

Suzana Popovic-Montag:  Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 137 of our podcast on Tuesday, November 4^th, 2008.

 

Ian Hull:  Hi Suzana.

 

Suzana Popovic-Montag:  Hi there Ian, how are you today?

 

Ian Hull:  Just great.

 

Suzana Popovic-Montag:  That’s good.

 

Ian Hull:  Remember, of course, we’ve got our call-in, 206-457-1985.

 

Suzana Popovic-Montag:  And please feel free to continue with the feedback at hullandhull@gmail.com.

 

Ian Hull:  And speaking of feedback, we got an interesting comment on our last podcast and thought we might touch on it today as we were working through additional issues beyond the Will challenge, but in the context of a Will challenge.  And the comment was that they didn’t understand when we referred to a Supreme Court of Canada case, the Picori decision, how it sort of was relevant.  So it was a timely question and one that we are going to deal with today actually because we want to talk a little bit about what those two claims are and how they fit into a global Will challenge piece of litigation.  They can be separated from Will challenge litigation but they also can be part and parcel of the Will challenge.  So why don’t we spend a little bit of time talking about them.  First of all, the concept of resulting trust is again and what constructive trust is again, and then we’ll talk a little bit about how we’re using them in our day-to-day practice.

 

Suzana Popovic-Montag:  That’s great Ian.  And we know basically that a resulting trust is a trust that arises at law by virtue of the fact that Courts are looking for ways to make sure that people are treated equitably.  And so if someone is left in a situation where they ought to be able to make some kind of claim against a certain pool of funds, for instance, or some other type of asset, that this remedy is something that is available to them.

 

Ian Hull:  And the constructive trust, really the concept comes from this idea of unjust enrichment that we talked about and that someone’s done work and not been paid for it.  It’s as simple as that.  With the constructive trust world and where it developed, and it certainly developed very intensely out of the United Kingdom and the in Canada.  In Canada, there was sort of a trilogy of cases that developed.  But what happened was, the cases that started if off and why its sort of helpful is that it gives us an idea of how its being used today, is that the Courts sat back and said, in this case, the Murdoch and Murdoch decision and the following decisions that came from that, the Court sort of said look, there was an unequitable treatment of a husband and wife.  This was pre-family law equalization times.  And the Court said, well the wife has demonstrated that she participated equally in the marriage but on death, I mean not on death, in this case on marriage breakdown, the assets were being split up based on legal title.  And the Court said that’s not fair.  So they stepped in and said if you’re going to participate, you are constructively holding, you’re actually participating in the growth and the build up of assets, then you’re entitled to be replenished from your work.  And whether you have legal title, whether the farm is in your name or its not, the Courts have said that doesn’t really matter.  What matters is, what did you do?  And it comes back to our similar way that we looked at quantum meruit as well.

 

Suzana Popovic-Montag:  And in fact unjust enrichment is very, very similar to constructive trust except whereas you’re looking for payment of money in the cases of unjust enrichment, with constructive trust you’re usually looking to have some kind of claim to an asset itself, some interest in, you know, because these cases seem to have arisen in a family law context, an interest in the family home or some other property that is owned by one of the two people in a relationship.

 

Ian Hull:  So that’s developed and in the estates law, the constructive trust claim is prevalent, certainly easily identified in a Will challenge scenario when you might have someone who is excluded from the Will.  And say doesn’t get any of the family farm, and let’s say it’s the son.  But that son has been working the farm for many, many years.  And instead of looking to get paid for work and services as we did in quantum meruit or instead of trying to create a claim of proprietary estoppel which we talked about in a prior podcast, there is the claim that that asset is being held in trust by virtue of the work and services performed, and that you’re entitled to a portion of it.  Not maybe more than you’d get paid on a quantum meruit, maybe less than you’d get on a proprietary estoppel.

 

Suzana Popovic-Montag:  And just by virtue of a claim, of course, Ian, there has to be a real relationship between the work that was done for the property and the property itself.  So that’s what takes this sort of, I think, outside of the box of being entitled to just a money payment for services rendered, that there’s actually a correlation between what you did and the property that you were doing it for.

 

Ian Hull:  Absolutely.  So I think its just one of those things that if we can consider, looking at both resulting trust and constructive trust.  We’ve talked a little bit about the distinction.  Sometimes on the facts it’s a distinction without any difference because you’re sometimes looking at trying to oppose a constructive trust or a resulting trust over a joint bank account.  You can sometimes impose it over land or specific items.  So, you know, we’ve tried to get into the distinction a little bit today but as long as we remember, and we try to remind our clients, you know, it’s an option.  And it is part of the various approaches that we may or may not want to take when we’re dealing with a Will challenge-like scenario where we have been excluded or we are excluded and on what basis.  And I think really from our perspective anyway, it is one of the more difficult claims to pursue.  So we typically don’t want to pursue it unless we think we’ve got some decent hold on it because it’s a bit of a flaky claim, to use a term of art and the Courts are not going to use it unless you’ve got the rights facts.  And where the Courts have historically imposed these kinds of trusts is when you’ve got obvious unjust deeds being done here, where someone has been unjustly treated at a level that there is no other way to solve it but by imposing these principles of equity on top of the facts and ultimately then coming to the Court, coming to say look, now I have a legal reason to say why that farm should go to Johnny and actually I only need 25% of the farm to go to Johnny because that represents the efforts that Johnny put into the farm property.

 

Suzana Popovic-Montag:  That’s a really good point, Ian, because the truth is, these kinds of cases are hard to demonstrate factually because of the requirement for corroboration, because of the fact that so much of the evidence that would traditionally be led is more or less viewed by the Court as self-serving evidenced.  And so to be able to find third party evidence of these situations is not necessarily that easy, but when it is, then strictly these claims are ones that we do pursue and as best as we can in the circumstances, knowing of course that there’s no guarantees even with that at the end of the day.

 

Ian Hull:  Absolutely.  Alright, well before we turn to our next topic, one of the things that we’re trying to work through with our video podcasts is we’re going to, from time to time as well, we wanted to let everyone know that we’re going to try to do from time to time an audio and a video blog where we run into an issue that demonstrates a really interesting point that in and of itself doesn’t justify a whole podcast or a video podcast, but might be worthwhile having a couple of minutes.  So you’ll see us, from time to time, putting our little short snippets in, hopefully they’re helpful.  And we have a couple of ideas and really we’re going to try to do is just grab them from our practice.  And it may not happen once a week, it may not happen once a month, but every once and a while you’ll see that.  So we look forward to that new little twist in our day-to-day social media efforts.

 

So thank you very much. That winds up, I think, our discussions for today’s podcast.  We’ll continue with our Will challenge series and please feel free to send us an e-mail at hullandhull@gmail.com.

 

Suzana Popovic-Montag:  Or, of course, call us and leave us a video comment at 206-457-1985.  Thanks very much, Ian.

 

Ian Hull:  Thanks Suzana.

 

 

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag.  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 Hull On podcasts, or to leave any questions or comments, please visit our website at hullestatemediation.com.

 

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Listen to Will Challenge Litigation - Part 11

This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the differences between quantum meruit and propriety estoppel. As with any add-on claims, the courts require solid corroboration. They also discuss claims of resulting trust and claims of constructive trust.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

Will Challenge Litigation Part 11 - Hull on Estate and Succession Planning - Podcast #136

Posted on October 28, 2008 by Hull & Hull LLP

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada. From the offices of Hull Estate Mediation in Toronto, here are Ian and Suzana.

 

Suzana Popovic-Montag: Hi and welcome to Hull on Estate and Succession Planning. You’re listening to episode 136 of our podcast on Tuesday, October 28, 2008.

Ian Hull: Hi Suzana.

Suzana Popovic-Montag: Hi there Ian, how are you today?

Ian Hull: Great thanks. It’s a big day. It’s my brother’s birthday so “happy birthday” to my brother.

Suzana Popovic-Montag: Happy birthday.

Ian Hull: And we’re going to, I’m sure he’s not listening, he’s stuck in the throws of a software development firm that is going crazy. 

Suzana Popovic-Montag: So you’re not going to sing?

Ian Hull: No, we’re not going to sing, we’ll definitely not sing. But we will invite everyone please, to come and hit our web page because we have had such great fun with feedback and just engaging in the social media world with people: estatelaw@hullandhull.com is where you can get your blog and hullandhull@gmail.com; we invite you to please feel free to send us an e-mail.

Suzana Popovic-Montag: Or feel free to leave an audio comment for us at 206-457-1985. We always appreciate hearing from people directly in terms of what they think.

Ian Hull: Absolutely. So where we left off last week was, and I actually got an e-mail from one of my colleagues about this question. And so we left off on this pointing out the difference. We talked about the concept of proprietary estoppel. We talked about the importance of not just throwing stuff at the wall to see if it sticks but pursuing claims that need to be pursued. We talked about how best to pursue it with good corroborative evidence. But what we left off was, we left it sort of with the listeners hanging, so to speak, is what’s the difference between the two? And I guess, let’s talk about the result. What is the different result that you achieve between pursuing a proprietary estoppel claim and a quantum meruit claim? And then let’s talk a little bit about what a quantum meruit claim is because then you can frame the kinds of approaches you want to take in respect of an add-on claim to a Will challenge.

Suzana Popovic-Montag:  Well Ian, I typically tend to think of a quantum meruit claim as a claim like an hourly paid claim for services rendered to someone without having been paid at the time, but with the expectation that at some later point they’d somehow be compensated. Is that sort of how you view it as well?

Ian Hull: No question. And the big difference between a quantum meruit claim and a proprietary estoppel claim is that a proprietary estoppel claim allows the Court to give you a home run. Whereas the quantum meruit claim restricts the Court because it is a fee for services claim. As you say, it’s an hourly wage based claim. How much did you work for the individual whose now died who promised to pay you when they died and didn’t? And the Court will calculate your hours. So it’s a very different claim and we’ll talk a minute about how we pursue those claims but I think the result is the key and where again we come back to being surgical about what kind of claims we want to take is that if we think we can get the home run play, and that is, get the whole house as opposed to just some repayment of hourly wages, the proprietary estoppel claim opens us up to a tremendous result. And again, we come back to the classic example of a nice, elderly gentleman who was helping a widow with her home and when she said, in one of the leading proprietary estoppel cases, this will all be yours, the Court was able to say, this is really all of yours and that meant the house as opposed to don’t worry, you’ll be looked after. And that could be construed as more of a quantum meruit claim.

So let’s talk a little bit about the history as we’re in the world of, our case law is always historic in every way. The history of quantum meruit claims, so that we can help better understand how we’re going to pursue those kinds of claims.

And we go back to the 1940s in Canada, the Supreme Court of Canada, where they started to develop the law out of England. And it basically came out of the same, the Degelman case its called and we’ll have the case in the Show Notes. But the case was much like my proprietary estoppel example in terms of the facts. And in Degelman the same sort of thing happened. A nice gentleman came to assist, in that case again, a widower and the comments were made and expectations were created that he would be paid for cutting the lawn and looking after the house and so on. And sure enough, when she died, he wasn’t. So the Court struggled with how we can deal with this unjust enrichment because the Court doesn’t like the idea that this person acted to his detriment and didn’t get paid. And so the Court basically sat down, and as you say, did an hourly wage basis analysis and said, took the Latin phrase quantum meruit, paid for work for services rendered approach, and said well, how many hours did you work and what’s a fair hourly wage? So the Degelman case established what is, I think, a really important add-on claim in a Will challenge because sometimes you can’t prove there’s lack of capacity. Sometimes you can’t prove you were promised the whole enchilada and the whole house. But you can prove your services rendered. And it comes back to this high standard that the Courts expect on corroboration and the fact that you’ve got to put such good evidence forward to the Court, or they’re not going to give you your claim.

Suzana Popovic-Montag: That’s right. I mean, the truth is, we do have the benefit of an equitable Court, I’d say, in the sense of what you just said, nobody wants to see someone work for free on an expectation that they would receive something at the end of the day. And when you’re in these situations, the facts are really going to drive, I think, the result, in addition to the evidence that you can put forward in support of it. But if you’ve got someone who is mowing the lawn, buying groceries and taking someone to appointments and that, you can see where a Court might think more in terms of a quantum meruit kind of claim, because those are kind of services that are rendered, as opposed to the other situation where you’re claiming proprietary estoppel and you’re dealing maybe specifically with maintaining a house or a farm property or something to that effect, where it might make more sense that the whole enchilada, as you say Ian, was what was expected, what was intended, and what hopefully you’ll be able to prove in terms of entitlement at the end of the day.

Ian Hull: So now that we’ve got two efficient and can be very powerful add-on claims, we also have to keep in mind the two other historic claims and that is, claims of resulting trust and claims of constructive trust. And why don’t we start with the resulting trust because that was historically, in a chronological order, the one that was established first. And it is the one that had such a big impact when you have joint assets. So let’s spend a minute on the concept of resulting trust.

Suzana Popovic-Montag: Sure Ian, that’s a good idea. Now when we talk about a resulting trust, of course we’re talking about a situation where assets are held jointly and on the death of one of them there is an expectation, either of obtaining those assets by right of survivorship or by way of a resulting trust.

Ian Hull: And what the Courts have done is they’ve said if you have an asset and say this, even if it’s not jointly in some cases, if the asset is held by an individual. So you hold an asset that over the years you have allowed me to participate in and a classic example is a cottage property. So you hold it and over the years you’re the one that has put all the money in, you bought it, you kept it up. But from time to time, I used it or I at some level paid toward the costs, that kind of situation. The Courts will look at that illustration as something that may require a resulting trust because on my death, for example, like you said, say that cottage is jointly held between you and I. On my death, it would be by right of survivorship. But what if I held the property in my own name and you had paid me all the money to buy the cottage because you were lending me the money and you hadn’t shown anything on mortgage or anything like that. The bottom line was that you ended up, the title didn’t pass to you. That scenario can create a situation where a resulting trust argument needs to be pursued. And the joint accounts is the other classic.

So anyway what we’ll do in the next podcast is talk a little bit about the examples so that we can really lock down this concept of a resulting trust and then see where it developed in a constructive trust. And we remind everyone please, look forward to your feedback at hullandhull@gmail.com.

Suzana Popovic-Montag: Or estatelaw@hullandhull.com which is our blog. And, of course, our phone number, 206-457-1985.

Thanks very much, Ian.

Ian Hull: Thanks Suzana.

 

 

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. 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 Hull On podcasts, or to leave any questions or comments, please visit our website at hullestatemediation.com.

 

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Listen to Will Challenge Litigation - Part 10

This week on Hull on Estates, Ian and Suzana discuss extraneous claims that can arise during a will challenge. In particular, they talk about propriety estoppel and other situations where someone worked to their detriment in the context of an estate dispute. For these kinds of claims, you require solid corroboration. Next week, Ian and Suzana will address the differences between quantum meruit and proprietary estoppel.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

Will Challenge Litigation Part 10 - Hull on Estate and Succession Planning - Podcast #135

Posted on October 21, 2008 by Hull & Hull LLP

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada. From the offices of Hull Estate Mediation in Toronto, here are Ian and Suzana.

 

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening, and some of you may be watching, Episode 135 of our podcast on Tuesday, October 21^st, 2008.

Ian Hull:  Hi, Suzana.

 

Suzana Popovic-Montag: Hi there, Ian. How are you today?

Ian Hull: Just great.

Suzana Popovic-Montag: That’s good.

Ian Hull: So, working through our Will challenge process and thinking about some of the other issues you want to consider when you’re doing a Will challenge, I thought it would be a good idea to talk a little bit about some of these extraneous claims which can actually turn out to be the elephant in the room, so to speak. So, why don’t we start with just a brief discussion on the concept of proprietary estoppel and how that gets dove-tailed into a Will challenge. So, first of all, why would we be putting this on the table even as an issue?

Suzana Popovic-Montag: And one of the reasons we’d be doing this, of course, is because of the fact that, when we’re doing a Will challenge we’re not necessarily sure, at the very beginning, just how successful our challenge is going to be. And so in an attempt to sort of hedge our bets as much as we can, we try to think of any other possible claims that we might be able to bring in conjunction with the Will challenge in the event that, for some reason, the challenge is unsuccessful. And we talked during our last podcast a little bit about the concept of quantum meruit, and I think that’s a nice segway for the whole discussion of proprietary estoppel, as well.

Ian Hull: Well, for sure, and let’s talk about what proprietary estoppel is. And we typically will bring these kinds of claims, only if it makes sense, because it doesn’t always pay to simply add to the costs and the burdens of running a Will challenge. But the concept of proprietary estoppel does stem from the whole thinking that if you are aggrieved, and you haven’t received under the estate as you thought you might. A typical Will challenge is obviously when a child gets written out of a Will and that is, of course, a situation where the child would think that they have been aggrieved. In this case of proprietary estoppel is one where promises are made by, say, an easy example of a proprietary estoppel claim might be some of the classic British cases where someone comes to assist an elderly individual, and one of the leading cases was an elderly woman who had a fairly vast property and needed care, not for herself, but looking after the property, and a gentleman and a neighbour in the town assisted her. She was assisted on the basis that he would come fairly regularly, two or three days a week. He’d cut the grass, fixed things, and so on. It was an old property and needed lots of work. And throughout this time period, she would constantly say to him, look, I can’t pay you now, I’m land rich and cash poor, but don’t worry, because when I die, you’ll be looked after. And she went so far as to say, one day, this will all be yours. Now this story is not entirely uncommon and lots of cases we see, that one day this will all be yours statement made.  And in the proprietary estoppel world and the quantum meruit world, as you say, that case can be very seriously pursued in the Courts. And the Courts will embrace the fact that this poor gentleman has worked to his detriment.

Suzana Popovic-Montag: And the claim, Ian, really is an equitable one. So a Court is going to look at the factual situation and they’re going to, perhaps if there is a Will, they will say well, notwithstanding the terms of the Will, this was a set of egregious circumstances where someone has provided a service for someone, to his or her detriment, on the expectation that they be compensated and yet, at the end of the day, they’re not. And so how do we rectify that situation? And by virtue of this claim, and it is, in fact, a cause of action, the claim for proprietary estoppel, you can make this allegation. And I think what you said originally about the fact that we want to be very careful in the extra claims that we pursue during a Will challenge. It’s important to recognize the fact that strategically, we want to make sure that we don’t look like we’re just sort of all over the place.  So if we’ve got what we think to be a strong Will challenge, coupled with a strong claim for proprietary estoppel, I think strategically there’s a lot to be said about that kind of focused pursuit.

Ian Hull: And you know, as you say, it really just comes down to the Court looking at this and saying, has someone been unjustly enriched? And that is pretty well the threshold question that happens, practically speaking, in every Will challenge. Has one side of the family or one individual been unjustly enriched to the detriment of the other? And the key with the proprietary estoppel cases, is as you say, that we want to pursue them when it makes sense. We’re not, in our firm, big proponents of throwing everything at the wall and seeing what sticks. We find it deludes our claim, because we can say to the people, well look, with vim and vigor, this kind of claim will or may well succeed. 

So, the fundamental point of law that we need to keep in mind, though, when we pursue these claims, are two-fold. One is the question of corroboration which I want to talk about, and the second is that you act to your detriment. You have to show that you did indeed come and cut the grass and come and look after the premises on a what would be seen as more than just a friendly, one-off basis. And the other aspect of it is, of course, this idea that you’re not going to succeed with this claim without good, solid corroboration, and that’s meaning supportive evidence from a third-party source that isn’t just your mother saying, that’s what happened. It’s sourced from an independent party, for example, the minister in town may have overheard this nice gentleman while he was talking to this nice elderly lady who, at that point, said, gee, thank you again for coming, this is the third time you’ve come this week, boy you’re spending a lot of time, don’t worry, I know you’re going to be looked after, one day this will all be yours.

Suzana Popovic-Montag: And that really is very important in these kinds of claims, because otherwise, they are quite self-serving. And I know we’ve talked on previous podcasts about the need for corroboration, and this one, I think, particularly calls out for that kind of evidence because the other side is simply going to say, prove it, and you’ve got to do so.

Ian Hull: And the concept of corroboration, and my final thought on that is, it’s so strongly entrenched in the laws in any civil jurisdiction in Canada and in the United States, and it is set out in most of the statutes, most of the evidence statutes, it’s set out in that as well.  So there is such an importance placed by the Courts on this outside evidence to support it, so that you don’t just have people standing up in Court saying, these things were said, and not having the one person, who is the one who said it, around, and taking advantage of the death, so to speak. The Courts won’t tolerate it and legislatures have said that they won’t tolerate it and that’s why they put the statutes in. 

So our next aspect of this whole idea of proprietary estoppel is quantum meruit.  And the distinction, I think, is very important to make, because of the difference of the result. And I think in our next podcast we’ll talk a little bit about the quantum meruit concept and talk a lot about why there is such an important distinction between the two and why you may want to pursue proprietary estoppel or both, but keeping your eye on the ball, so to speak, because of the result, not as much as because of the case. So we remind everyone please, feel free to call in at 206-457-1985. Give us your comments and your feedback. The social media world, we embrace it, and we’d really love to hear from you.

Suzana Popovic-Montag: And of course, we invite you to visit our blog at estatelaw.hullandhull.com or, if you prefer to e-mail us at hullandhull@gmail.com. Thanks very much, Ian.

Ian Hull: Thanks, Suzana.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. 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 Hull On podcasts, or to leave any questions or comments, please visit our website at hullestatemediation.com.

 

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Listen to Will Challenge Litigation - Part 9

This week on Hull on Estates, Ian and Suzana discuss other claims that can be made concurrent to a classic will challenge. In particular, they talk about quantum meruit claims and how these can be interpreted differently depending on the situation.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

Will Challenge Litigation Part 9 - Hull on Estate and Succession Planning - Podcast #134

Posted on October 14, 2008 by Hull & Hull LLP

Welcome to Hull on Estate and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag, that will provide information and insights into estate planning in Canada. From the offices of Hull Estate Mediation in Toronto, here are Ian and Suzana.

 

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening to Episode 134 of our podcast on Tuesday, October 14^th, 2008.

Ian Hull:  Hi, Suzana.

 

Suzana Popovic-Montag: Hi there, Ian. How are you?

Ian Hull: Great.

Suzana Popovic-Montag: That’s good.

Ian Hull: So, we were developing some of the, what we seem to be at now, is the sophisticated issues, some of the, which aren’t all that complicated, but they’re sophisticated issues that are tied into a classic Will challenge and what our clients can expect on either side, defending or propounding or upholding the Will. And we promised that we’d talk about today a development that kind of stems from the corporate issues that we talked about in our last podcast, and that is some of the other claims that can be made that are equally important, that aren’t falling directly in the whole closet of a Will challenge proceeding, but are often pursued concurrent, or at the same time literally, as the Will challenge proceedings. 

So let’s start with the classic, the one that was developed in Canada and throughout the U.K. in the mid-1900s, and that is the concept of quantum meruit.

Suzana Popovic-Montag: And that, of course Ian, I think you’re referring to the fact that a claim can be made against an estate on behalf of someone who says that during the lifetime of the deceased, I provided him or her with services for which, now that they’ve passed away, I should be compensated for.

Ian Hull: And that came out of a case in Canada, the Degelmena case, and that case, it’s a great story because what happened there, and the Courts saw this story unfold.  This nice gentleman acted, helped a woman out and performed day-to-day services for that woman, cutting the grass, looking after her affairs and so forth, almost handymanish kind of work, but a lot. And the Court said, and throughout his lifetime he appeared to be under the impression that he was going to be looked after, because the comments from this nice widow were, you will be looked after, don’t worry. He was never paid during it, so he worked away at this. And quite frankly, ultimately, he wasn’t looked after. And the Court looked at this problem and struggled with it and it’s an interesting development, because we’re going to go from the concept to quantum meruit, all the way through to the concepts of proprietary estoppel, all of which sort of tie in together. But staying with the quantum meruit claim, the Court said this isn’t right, we’re not going to let this happen, you can’t do this to people. They can’t be expected to have worked for free. And so the Court imposed what they call quantum meruit; that is, paid for work and services provided.

Suzana Popovic-Montag: That’s right. And you know, we’ve looked at the cases and we know that these are very difficult cases to predict the result of and that’s because there’s such a subjective component to the evidence that a judge is going to hear, and to the evidence, of course, that’s going to be led, and to what ultimately, I think, in fairness, a judge says, yeah that is what would be fair in the circumstances. 

Ian Hull: And in coming through that analysis in the quantum meruit context, the Courts we find, are typically looking at an hourly wage analysis. They say, well, how long did you work, how many hours a day did you work? Taking it outside of the case that we’ve just talked about, taking it into a situation where a daughter and a mother are alive, and the daughter is the dutiful daughter and works hours on end, does healthcare help, does financial care help, all of those things that we talk about in Power of Attorney fights and how we get compensated, but more importantly, gets into the same scenario and doesn’t get paid. Well that angle, in the context of quantum meruit, the daughter would naturally want to say listen, I want to make a claim and they’d come to see us and say, I want to make a claim. There’s a big difference here. We talked about our first case and that was the work of a handyman, a third party, maybe friend, but not a family member, not a close family member. Now in the second illustration I’m talking about is a daughter and mother. How do the Courts react to that scenario as opposed to the handyman scenario?

Suzana Popovic-Montag: Well as you can imagine, I think a judge will be more reluctant to recognize the services rendered by someone who’s a family member than someone who’s a third party. And the reason for that is simply because of all of our expectations in society that children do take care of parents or that parents will take care of children in reciprocity. And so, in that situation, it really becomes, I would suggest, a question of the evidence. What kind of evidence can you demonstrate or lead to show the judge that yes, this was dutiful work that would have had to have been provided to mom but someone, if it wasn’t dutiful daughter, would have had to provide for and mom would have had to pay for. This brings you back to the question of what kind of records do you have? How can you demonstrate that there was X number of hours that ought to be paid on a certain basis? These are not easy claims really to pursue, but I think they are important ones in a lot of circumstances.

Ian Hull: And they really are and I mean, I’ll say it once and I’ll say it again, people don’t remember this, but sometimes, is that judges are people too.

Suzana Popovic-Montag: That’s right.

Ian Hull: And they sit there and they say, they see a case like this, and we’re talking about the daughter-mother scenario, and they say, they struggle, because they say, you know what, that’s what kids are supposed to do. Now naturally, that’s the natural order of life sort of thing.  And then they balance it against, like you say, well if the child hadn’t done it, she would have had to have had an independent third party do it, and they’ll go out and they’ll test the market. They’ll expect counsel at these trials to have put to them details of what’s the market rate, what would that have been, what is a duty care nurse or what is a person to cut the lawn scenario. And so, it’s really as you say, it’s a tough case. When you’re doing it, you almost never remember to keep good records, because you’re doing it for your mom, because you’re also doing it, or the handyman scenario, you’re doing it because you were promised that it was going to be okay and that you would be looked after. And when the day of reckoning comes and the Will doesn’t look after you, obviously disappointment comes, and you have to scrounge around and collect your evidence at a time that it may be too late.

Suzana Popovic-Montag: Another thing that’s particularly difficult I find in these situations is that they can tend to be very emotional pieces of litigation, and the reason for that is because typically it’s another family member that’s saying, you shouldn’t have done that. It’s the brother saying, you know what, you were living with mom, you were living off her back anyways, you should have been providing these services, and that’s just not always the case. And so when you add that emotional element to the difficulty, of course, in finding the evidence to support these kinds of claims, they really can be difficult.

Ian Hull: Absolutely. And so having said that, as difficult as they are, it’s an element of the process. And when someone comes to see us about a Will challenge, there’s a bit of a checklist that we like to go through, whether it’s defending or propounding, and the first one is how good is your case in the Will challenge. And we go through that, and we’ve already talked about that in previous contexts and previous podcasts. Then we say, okay, can we supplement your case with a claim like this, to add on, to layer on the pressure to the other side, and then, or vice versa, are we going to be faced with that kind of claim. If you’re going to say, and a classic scenario that the child has been written out of the Will and gets nothing, well it’s not always a full stop there. And a quantum meruit claim might be the kind of claim you would consider layering on, to help bolster your position, and it’s a strategic position on either side. 

So, I think that’s a really good illustration of where these tangential claims get made in the context of the overall Will challenge proceeding. There are many other ones worth considering, and there are some creative ones as well. But from our standpoint anyway, that’s the starting point. And that’s the quantum meruit claim. There’s probably three or four other ones that are worth considering that are appropriate layering on. And that one, the next one that we could consider is, of course, the concept of proprietary estoppel, because it’s an extension of quantum meruit. And the proprietary estoppel claims, I think, are, well they’re very, very much used in the U.K. and I think are an interesting tool that we want to talk about. And I think what we’ll do is, we’ll spend some time in our next podcast talking about the expanded claim essentially of the quantum meruit , and that is, proprietary estoppel. So we’ll look forward to that podcast.

Suzana Popovic-Montag: Absolutely. Thanks very much, Ian. Just a reminder to our listeners, to feel free to provide us with any feedback you might have on our podcasts at hullandhull@gmail.com.

Ian Hull: And please feel free to call in at 206-457-1985. Thanks, Suzana.

Suzana Popovic-Montag: Thanks, Ian.

You’ve been listening to Hull on Estate and Succession Planning with Ian Hull and Suzana Popovic-Montag. 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 Hull On podcasts, or to leave any questions or comments, please visit our website at hullestatemediation.com.

 

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