Listen to Will Challenge Litigation - Part 7

This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.

They discuss fraud as one of the most serious ways in which a will can be challenged. Evidential requirements are important when allegations of fraud or forgery are made. Handwriting analysis and other scientific means of determining the legitimacy of evidence can be employed to determine whether or not fraud has occurred. Ian and Suzana also talk about lack of proper execution being grounds to challenge a will.

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 7 - Hull on Estate and Succession Planning - Podcast #132

Posted on September 30, 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 #132 of our podcast on Tuesday, September 30^th, 2008.

Ian Hull:  Hi, Suzana.

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

Ian Hull: Just terrific, thank you. I’m looking forward to today’s podcast and videocast because it touches on one of the areas of the Will challenge process that I find somewhat intriguing and probably the most intriguing. We finished our last podcast talking about the issues, the core central issues, well we really spent the most of our last podcast on undue influence. Today, let’s wrap up these issues as best we can in terms of the legal issues, and let’s talk for a minute, as we said in our last podcast, it’s not worthy of a lot of attention because there’s so few cases that deal with the question of fraud. But the one area where it does get dealt with is fascinating.

Suzana Popovic-Montag: And that’s when the allegation is that the Will that’s actually being put forward was not, in fact, signed by the deceased, so that it was essentially forged. And that allegation of fraud is one of the most serious allegations you can make at law. And so Ian has said in our earlier podcast we, as counsel, are very, very careful in advising clients whether or not to pursue this allegation because once you make it, there are serious consequences associated with that allegation.

Ian Hull: And those are, of course, that if you’re wrong, you could be exposed to every cent of the cost in the process. And judges come down very hard on you if you allege fraud and don’t prove it. So that’s hovering around, and that’s a big part of why fraud is not used because the judges in Will challenges aren’t as rough on you if you’re alleging undue influence and capacity in the costs context. But the forged Will is one that does come up from time to time, and there is a fairly easy way to deal with it and one that, as I say, is fascinating, because if you read these reports, it’s like magic. And that is, is that you can get handwriting analysis done. So you get the Will, the client comes in and says, look, my dad was not well, but more importantly, there’s no way this is his signature.  So one of the things we would do is, is that maybe even before we allege the fraud, we would move fairly quickly if we could get a copy of the original, to get a report from a forensic, and one of the great ones, Diane Kruger, who is one of Canada’s leading experts, and Brian Lindbloom, is another Canadian expert in this area.  We get an expert opinion as to whether or not that’s the valid signature of the deceased. And how they do it is kind of a neat process, and the first steps that we take to do that.

Suzana Popovic-Montag: And it’s a really scientific process that’s based on comparison with other original signatures.  And so when we’re talking, and we’ve talked in previous podcasts about this intense investigation stage, one of the things that we may be looking for if the allegation is, in fact, a fraud or forgery, is for documents that bear the testator’s original handwriting, their signature and other ways that we can demonstrate that this was the way that someone would typically sign something or that someone would write something.  And those kinds of evidential requirements are really important when you make these kinds of allegations.

Ian Hull: And so when you come into this, and where you’re looking at it is, this is the homework that we’re going to impose on the client. They want to make that allegation, we’ll typically say, okay, go back and seek out signature specimens.  And these experts will typically say we want specimens that are time specific. They will say as close to the time that the signature of the Will was made, because as we know, elderly people, and all of us, our signatures change over the years, so the more current, the more effective the evidence is. And this really, this evidence can really explode a law suit and, obviously, the question of fraud is a tremendous emotional question as well.  So whatever we can do at the outset to deal with it quickly, get lots of good specimens and get the opinion out of our expert, and get a good expert, is another sophisticated level that we can take this. 

Now Suzana, let’s talk for a minute about that possibility that we can’t get at: (a) original specimen signatures; or (b) we can’t get access to the original Will because the other side’s being difficult.  What do we do then?

Suzana Popovic-Montag: Well that’s another situation with another level of possible litigation where you’re going to have to possibly consider bringing a Motion before a Court, in order to have the authority to compel the individual with the original Last Will and Testament to bring it into Court, so that you can have the opportunity to provide that and any other specimen signatures to the individual who’s going to prepare your report for you. And that, you know, when we talk about these extras, or the bells and whistles to litigation, sometimes these steps will arise. We could never predict that we would have such a difficult time getting it, but there are mechanisms that we can, fortunately, turn to in order to be able to get this for our clients.

Ian Hull: And this is sort of a procedural side show. And there’s orders for assistance we can get for a lot of different relief that we’d want, and we’re going to talk about those orders for assistance at a different podcast. But, you’re right, Suzana, if there’s a mechanism available, it’s an additional cost, delay, it’s another part of the battle, but it can be done. So, we’ve wrapped up the question of fraud which is the classic scenario. There’s obviously other areas where fraud is pursued, but that’s the classic one.

Let’s just take a minute now to look at the question of lack of proper execution. Not because, we haven’t ignored it because it isn’t important. In fact, this can be the fatal blow. And why do I say that? Why do I say this could be the fatal blow, Suzana?

Suzana Popovic-Montag: Well, again, Ian, just because it’s one of those grounds. And if you can demonstrate that a Will is not a valid testamentary document, then the game’s over.  The Will challenge is over in the sense that that document is set aside so you’re looking to either a prior Will or possibly an intestacy.

Ian Hull: And we love the fact that these podcasts are listened to all over the world and all across Canada, and so we try to, whenever we can, be fairly global about what some of our comments are and where the law trends are going. And one of the trends with lack of due execution in Ontario is there was some case law bouncing around over the last 10 years, but it’s come down pretty clear that the terms of the Succession Law Reform Act must be followed. You must have two witnesses in the room at the same time when the individual signs it, no excuses, no what they call substantial compliance. There’s no way of getting out of it. The alternative, of course, is in some of the other jurisdictions and that is, the question of substantial compliance.

Suzana Popovic-Montag: And that really is the key, because what had happened in Ontario is that the judges were recognizing the fact that in other provinces in Canada, sometimes Wills were being allowed to be probated or were being upheld by judges when there was perhaps only one witness or when there was some other form of less than perfect compliance with the legislation. So, substantial in the sense that close enough was good enough in those jurisdictions. But our Courts here in Ontario have come down quite strongly on the fact that no, we have legislation, it provides for specific requirements, and those requirements have to be met if a Will is going to be valid here in Ontario.

Ian Hull: Manitoba’s an example of a substantial compliant province, and there are others as well, so it’s worth exploring because the different jurisdictions approach it differently. But, it’s a mandatory compliance rule in Ontario.  It’s a full stop if the Will hasn’t been executed properly in most situations. There are some variations on every theme, any time you put an absolute, you’ll have a judge to say, wait, there’s no absolute. But it’s an important issue to always check off on the checklist, that we always do with our clients. 

So, those are the sort of five important areas of attack, and there are more, and there are other strategic steps that we want to consider, now that we’re into the Will challenge process. We are into the litigation. We’ve talked enough about process a few podcasts ago.  We’re into it, and these are the kinds of strategic and legal considerations we’re going to start to make. And we’ll talk about some of the other ones in our next podcast. So, thanks very much, Suzana.

Suzana Popovic-Montag: Thanks to you, too, Ian. And just a reminder if anyone would like to send us some feedback, feel free to send us an e-mail at hullandhull@gmail.com.

Ian Hull: And our call-in number - 206-457-1985. Thanks very much for listening.

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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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 Estate blog.

Posted on February 5^th, 2008 by Hull & Hull LLP

Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to Episode #96 on Tuesday, February 5^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.

Natalia Angelini: Hi and welcome to another episode on Hull on Estates. I’m Natalia Angelini.

Allan Socken: Hi and I’m Allan Socken.

Natalia Angelini: 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.

So Allan, it’s great to be podcasting with you today. It’s our first time together.

Allan Socken: I’m very excited about it, Natalia.

Natalia Angelini: That’s good. We’re going to be talking about the family conference. So perhaps I’ll just set out what it is. The family conference is a professionally mediated conference and it essentially provides a forum whereby a testator can reveal his or her proposed estate plan to intended adult beneficiaries. And the objective is to obtain their approval of the plan. So it’s quite a unique animal, the family conference. It’s really the only formal mechanism in place in estate matters where someone can, you know, look their loved ones in the eyes and explain their plan to them, answer any questions about why they wish to have their plans set out in that manner. And ultimately in an ideal scenario, get agreement on it. So Allan, why don’t you tell our listeners what needs to happen in preparation for a conference.

Allan Socken: Well before the conference, I think probably the most important question to ask is who do you invite to the conference? And the simple answer is you invite all adults who are involved in the estate plan. At least, at a minimum, the people you invite would be the spouse of the person who made this estate plan as well as his children. And I think in inviting these people, it’s really important that you speak to them and have a candid conversation with them, obviously before the conference, explain the purpose of a conference, namely for all the people to appreciate what the person’s estate plan looks like and the reasons as to why they’re leaving certain gifts the way that they are.

Natalia Angelini: And who else can be invited?

Allan Socken: Really, any person who has an interest or involvement in the estate plan of the person.

Natalia Angelini: Right. And that would even include professionals, like the testator’s estate lawyer, their financial planner or accountant, because they certainly can have a critical role in explaining or answering questions dealing with the assets.

Allan Socken: For sure. And I think the other important thing to make mention of is there may be certain circumstances, probably quite frequently, where minor children have an interest in the estate plan. And it’s important to note that minor children should not be included in the family conference. In most jurisdictions, Ontario included, there’s an office known as the Office of the Children’s Lawyer, whose mandate is to protect the interests of minor children. And depending on what the estate plan looks like, it may be necessary to have discussions with them to see if it’s necessary for them to attend the conference as well.

Natalia Angelini: That’s a good point, Allan. So are there any other preparatory steps?

Allan Socken: The only other thing I’d like to make mention of is the question as to where to hold the family conference. Often people think that it may be prudent to hold it at a family member’s house.  But the reason why, I think, it’s not a good idea is, is often when you go to a person’s house, it may turn into a social function and it may lose the business touch that’s essential in planning for this conference. So I think probably the best place to hold a conference would be at the mediator’s office so people can really appreciate the business-like environment that they’re encountering and the importance placed on the family conference.

Natalia Angelini: In addition, it really is like a mediation and you want to be able to have individual caucuses as well as group caucuses. So you need several rooms and breakout rooms and privacy so you can really have it proceed in a meaningful way. So again, I think a mediator’s office or some other kind of office is ideal.

Allan Socken: I think moving along, Natalia, now we should address the agenda that’s put in place before the family conference. I think it’s important to stress to our listeners that an agenda is essential to have so that people are aware of what’s going to be taking place at the conference and so that divergence can be avoided as much as possible. So probably what’s important to include in the agenda is really the overview of the person’s estate plan which would include the proposed new Will, who the executor will be, funeral arrangements, debts of the person, taxation issues, guardianship of minor children, who may be the Power of Attorney and dealing with the distribution of specific assets for the estate.

Natalia Angelini: Right. I think it is critical to have an agenda and the family conference is chaired. And it’s usually chaired by either the testator or the mediator or someone else selected by the testator. So it’s great assistance to them to have an agenda to follow.

Now in respect of how the actual conference works over the course of a day or more than one day, it is much like a mediation.  And, you know, there is, I think, initially, commonly a group meeting where the chairperson goes through the rules of the day. There’s usually a family conference agreement signed which sets out that the mediator is neutral, that he or she is not offering legal advice, that all discussions are without prejudice, and of course, that the mediator is not liable for anything done or omitted at the family conference. So the usual sort of waivers. In addition, a document entitled Rules for Meeting is also signed. And Allan, why don’t you set out what is contained in that document?

Allan Socken: Typically for the Rules of the Meeting, it sets out that the parties understand who’s paying for the mediator’s time but not withstanding whoever is paying for the mediator’s time, the mediator still will be neutral throughout the process. As well, the parties agree that they’ll conduct themselves in a business and professional approach. And in that sense, there’ll be no harsh language spoken either at the other parties or the mediator. And believe me, I’m sure Natalia also can attest to the fact she’s seen certain times where discussions can get pretty heated.

Natalia Angelini: This is true. This is true. And I think in this kind of conference you really want to encourage views to be shared and grievances to be aired, but at the same time, in order for resolutions to come about, you want to make sure that everything is discussed in a cordial manner.

Allan Socken: And just the other thing to make mention of also is one of the rules should also include that all the parties are bound and acknowledge that they’re bound by the Family Conference Agreement. So they can leave whenever they feel like it if they feel progress is not being made. Certainly the mediator will try to keep them there and have the parties agree to at least spend a day there to try to sort things out. But even if the parties want to leave at the end of the day and no agreement can be reached, the parties still agree that all information and all people who were present can’t be subpoenaed in that respect. I think that’s important also to include in the agreement, Natalia.

Natalia Angelini: Good point, Allan. So again, it is a fluid process like any other type of mediation and it really can unfold in a different way depending on the parties and the circumstances.  And if an agreement is not ultimately reached at the end of the day, you can, you know, reconvene on another day if all or some of the people are willing to and you can get an agreement at a later time. What that looks like doesn’t necessarily have to be in accordance with the proposed estate plan. It’s not necessarily an imposition of that plan. The plan can be varied or amended pursuant to the comments and views of the beneficiaries and once an agreement is ultimately reached, it’s papered in a document that’s called The Family Constitution. And Allan, maybe you can expand a bit on that.

Allan Socken: Sure. Basically, you probably remember from law school, Natalia, that we always talk about the constitution as being a living tree.

Natalia Angelini: That’s right. Way back when I do remember.

Allan Socken: Well not surprisingly, The Family Constitution is also a living document that requires amendments from time to time. Because as people move on and age in years, no doubt their estate plan changes and when their estate plan changes, it’s really important that The Family Constitution is also updated. And I think as a preamble to The Family Constitution, it’s important to note that while family members may have different views and opinions, they unanimously - hopefully that’s the goal at the end of the day - that they unanimously decide to create this Family Constitution. And I mean, in certain circumstances, there may be family members who don’t want to agree to The Family Constitution or some people may not even want to have the meeting in the first place. So I think the role of the mediator shouldn’t necessarily be to prevent the family conference from going ahead, but perhaps to engage the people who are willing and interested at first to participate in the conference and hopefully, if success can be achieved there, people who didn’t want to participate in the first place may be inclined to give it another look and perhaps be willing to review the constitution that was agreed to. And even in certain circumstances, they may be willing to sign the agreement, albeit they may expect some changes to be made. But at the end of the day, some progress can happen even if not everyone in the family conference is willing at first to participate. And I think that’s important to keep in mind.

Natalia Angelini: Right, and one benefit to proceeding even if you don’t have everyone’s consensus is that the process can be of real value because it shows a testator’s clear intention as to how he or she wishes to divide his or her assets, which can really deflate any kind of brewing Will challenge at the end of the day. So litigation avoidance is one real positive potential outcome of the conference. And if you actually do get a Family Constitution signed, then it’s a great thing to have because it includes an agreement not to contest the Will. So that’s a great way to avoid litigation or ultimately if litigation is commenced, to use that document in defence of that.

Allan Socken: And just one final point for me to make Natalia, if that’s okay, is probably the most complicated aspect of this family conference is really the need for full disclosure. And for a lot of people, that’s really a difficult thing to do because there may be situations that people are embarrassed to admit or really don’t want to disclose.  For example, extra-marital affairs, not dividing your estate equally among your children.  But at the end of the day, if you want success to be reached with the family conference and you don’t want your Will to be contested or other legal remedies pursued when you die, I really think it’s important that you make mention of these difficult aspects so people can appreciate and they don’t feel as though you’re hiding anything. So while it’s difficult to disclose this information, I really think it’s important to get across that at the end, if you hide it, it will really do more harm than good at the end of the day.

Natalia Angelini: That’s right. I mean the fact is this is a delicate process and it’s not one that I think most people are willing to enter into because I think a lot of us would rather not deal with these delicate and difficult issues during our lifetime and we’ll just wait for everyone else to kind of deal with it after we’ve passed on. So I think people need to have, I think in a lot of cases, it helps to sort of have the courage to go ahead with the process and be open and ultimately, in an ideal scenario, get agreement on the issues or at least, you know, canvass them in an open and honest way.

So well, I think that brings us to the end of this week’s discussion.  Thanks for listening and thanks for joining me today, Allan.

Allan Socken: Thanks Natalia, I had a great time.

Natalia Angelini: That’s great. 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 on our comment line at 206-350-6636. And again, you can also visit our blogs at estatelaw.hullandhull.com, where you’ll even find more information and discussion on today’s practice of estate law. We hope you enjoyed the show. I’m Natalia.

Allan Socken: And I’m Allan.

Natalia Angelini: And until next time, 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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