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Case citation:
Rooney Estate v. Stewart Estate 2007 WL3019262 (Ont. S.C.J.), 2007 CarswellOnt 650
I was recently in the Brampton courthouse. I imagine that Brampton is one of the busiest courthouses in the Province. It serves the Regional Municipality of Peel, which includes Mississauga and Brampton. The courthouse is busy with both criminal and civil matters. While I was there, I heard requests over the loudspeaker for Polish, Punjabi, Vietnamese, Chinese, and Spanish interpreters.
For my part, I was scheduled to speak to a guardianship application, which was to be adjourned on terms. The problem I faced was securing a full day hearing date for the return of the application. My matter involves a widow, whose health is declining. She has been declared incapable of managing her property and making personal care decisions. The application was brought by the widow’s nieces (my clients) to be appointed co-guardians of property and personal care for their aunt. The application is hotly opposed by the attorney for property and personal care, who my clients believe was appointed under suspicious circumstances.
While the adjournment was granted, it was also crucial that I obtain a timely hearing date for the application. However, the presiding judge apologized and advised that the first available date was not until late September 2007. More than six months would pass before the application would be heard. Her Honour explained that the region was understaffed when it came to judicial resources and simply could not accommodate all matters despite their apparent urgency. Her Honour also indicated that criminal matters usually took precedence over civil matters, as the right of an accused to a fair hearing would be prejudiced by undue delay.
The bottom line is that parties intent on litigating, whether in the estate context or otherwise, should understand that institutional delay will often push their “day in court” well into the future. Justice delayed is justice denied. However, that is the reality that litigants face in today’s overburdened court system.
It is for this reason that many alternatives to litigation are frequently promoted. Mediation is a good example, as is binding arbitration in commercial litigation matters. A party should therefore carefully consider what options they have before necessarily assuming that a court hearing is their best course of action.
Enjoy!
Justin de Vries
Much has already been written about the trial of Conrad Black currently unfolding in Chicago. There are, of course, constant press dispatches and on-going, daily TV coverage. I will leave Conrad Black’s innocence or guilt to the jury sitting in Chicago. However, on a more subtle level, there are lessons to be learned for any party in protracted litigation.
When Conrad Black was first charged with fraud and racketeering, he was widely condemned. His critics took a certain amount of glee in seeing “Conrad brought low”. He was after all getting his proper comeuppance after years of malfeasance. However, Conrad Black did not flinch or bow to the pressure. He maintained his innocence rather convincingly throughout and clearly believed in the strength of his case.
To my mind, what has been impressive is Conrad Black’s perseverance in the face of adversity. Persevering is key to successfully litigating. It has been said that litigation is not a tea party; in fact, it’s more akin to war. A party has to have, or quickly develop, a thick skin. The opposing party and their counsel will hurl all sorts of allegations against you, belittle your case, and try to marshal evidence that at first blush may seem crushing and unanswerable. However, a party has to believe in the righteousness of their case and not lose faith.
Obviously, a party should have only commenced litigation or mounted a defence after carefully considering the facts and the law. If it was concluded that litigation was unavoidable, then a party should not waiver but persevere. A party should always consider reasonable settlement options, but nevertheless carry on undaunted.
Litigation can be difficult, expensive, and in the estate context emotional. Many litigants begin to waiver midstream wondering whether they made the right decision, if the proper evidence has been gathered, and if their case is as strong as it first appeared. However, with the help of good counsel, a party will weather the storm.
When in doubt, stop for a moment and think of Conrad Black who persevered despite the tremendous pressure and the clamour of his critics. Who knows, he may ultimately win.
Enjoy!
Justin de Vries
This blog completes my week-long rogue’s gallery of criminal convictions in estate matters. So far I’ve talked about the Criminal Code in general plus specific cases involving breach of trust and theft.
On to fraud.
In R. v. Moore (1998 Carswell Nfld 276), an accused along with a deceased’s four siblings signed and filed with the court false documents stating that the whereabouts of the deceased’s four children were unknown, that the deceased left no will, and that the accused knew of no one else with an interest in the estate. This is chronicled at length in a set of reasons dealing with the deceased’s remarkable and inspiring life. The accused, though equally remarkable, was hardly inspiring. The criminal charges marked the culmination of her complex scheme of lies and deceit.
The accused claimed she doubted whether her brother was born to the deceased, and said her doubts in this regard justified her behaviour. The Court found that the accused was “resourceful, and articulate”, but used her talents by “persist[ing] in [a] despicable charade” to defraud her brother, nieces and nephews.
For all her trouble, the accused received $10,000, plus a conviction for fraud. It is often bizarre the extent someone will go for what seems, objectively, to be a small amount of money.
An interesting aspect of the case is that the deceased in question, mother of the accused/convicted, was by all indications a font of kindness and compassion, taking several children under her wing during her lifetime. The reasons dwell at length on what a fine person the deceased was, implying quite clearly that the accused failed to measure up to her mother’s legacy.
We will not be posting a blog on Good Friday, April 6, 2007.
Thanks for reading.
Sean Graham
On Tuesday, March 27, 2007, I attended the Ontario Bar Association Trust & Estates Section Meeting. Kathryn Bennett opened the meeting with a discussion 2007 federal budget and how it affects individuals from an estate planning point of view. Some of these points were touched upon in our earlier blogs.
The meeting continued with presentations by Justices Greer, Croll, Perell and Spies of the estates list. They addressed what the estates bench and bar can do better. The judges touched upon the following matters:
Until tomorrow,
Paul Trudelle
People don’t seem to have as much fun with their wills these days: not as much as they used to.
Take Charles Vance Millar, who died on October 31, 1926. Charles, a lawyer, left a Will in which he gave a share in the Ontario Jockey Club to opponents of gambling, and one to a competitor of the Ontario Jockey Club.
In another provision, Charles left shares of the O’Keefe Brewery Company to each Protestant minister and to each Orange Lodge in Ontario: staunch champions of the temperance movement.
In another provision, he left a life interest in a vacation home to three friends who deeply disliked each other.
In yet another provision, he left the residue of his estate to the woman “who has … given birth in Toronto to the greatest number of children” at the end of ten years from his death. This last clause set off “The Great Stork Derby” in Toronto. Four women shared the prize, having nine children each. (It is not known how many were left out of the money with only eight. A few disappointed contestants were also kept out of the chips as some of their children were illegitimate, and not considered to fall within the definition of “children”.)
By his own admission, Charles’ Will was unusual. The Will opens with the clause:
“This Will is necessarily uncommon and capricious because I have no dependents or near relations and no duty rests upon me to leave any property at my death and what I do leave is proof of my folly in gathering and retaining more than I required in my lifetime.”
Millar’s will set off significant litigation, with proceedings arising in relation to most of the clauses.
Take care,
Paul Trudelle
Listen to "The Trustee's Power to Encroach on Capital"
Read the transcribed version of "The Trustee's Power to Encroach on Capital"
During Hull on Estates Episode #51, Ian Hull and Suzana Popovic-Montag discuss the circumstances surrounding a trustee's power to encroach on capital.
Ian and Suzana cover various principles which affect the power to encroach including the Armchair rule of construction, the Evenhand approach and the concept of malafides.
They also touch on various cases including the U.K. case of Gisbourne v. Gisbourne, and Fox v. Fox Estate (1994), 5 E.T.R. (2d) 174 (Ont. Ct. (Gen. Div.))
For more information on the power to encroach, see Ian's article in Estates, Trusts & Pensions Journal, "Discretion to Encroach: Do the Beneficiary's Personal Resources Matter?"
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