Toronto Estate Lawyer : Hull & Hull Law Firm : Trust Mediation and Succession Planning : Serving Ontario, Ottawa, Mississauga, Hamilton

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A question was recently posed to Ken Gallinger, an ethics columnist with the Toronto Star: was one of two brothers who received his father's estate ethically obliged to share his entitlement with his disinherited brother?  The questioner stated that he was shocked that his father chose to make such a distribution when there was no indication that the father intended to treat his sons other than equally in his Will.  The advice of Gallinger was along the lines of: no, you are under no obligation to share the bequest...but... you would probably feel better if you did.

Estate litigation is one of the few areas of law where you could conceivably see the same question posed to an advice columnist as to a lawyer.  Reading the exchange between the questioner and Gallinger gave me pause to consider what my answer would be and, more to the point, to consider that I had yet to be asked that question.   

Lawyers can sometimes present as insensitive, hiding the fact that they have a personal, moral or spiritual viewpoint because it does not fall within the parameters of their retainer agreement with their clients. Paid by their clients to provide legal advice, lawyers are not expected to opine on the moral dilemma presented by an unexpected windfall.  Will challenges are concerned with ascertaining the true intentions of the testator, not with determining whether those intentions were motivated by bitterness or spite.  

In concluding his response to the question posed, Gallinger made the comment: "sometimes it's better to be generous than right." Enough said.

Have a great weekend,

David

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Picking up on our discussion of issues encountered in capacity litigation, a common scenario sees the Court asked to make inquiry into the relationship between the grantor and the attorney by a more “distant” sibling or relative (either geographically or otherwise).

Procedurally, in Ontario, leave of the Court must be sought under s. 42(4) of the Substitute Decisions Act to permit the Applicant to make application for an order compelling an attorney under a Power of Attorney for Property to pass his or her accounts.

The test for leave has been characterized in the unreported case of Ali v. Fruci [2006] O.J. No. 1093 as twofold: (i) does the applicant have a genuine interest in the welfare of the grantor of the power of attorney?, and (ii) if leave were to be granted, is a court likely to order a passing of accounts?

Thus, when seeking to compel an accounting by an attorney under a Power of attorney, the first question to ask is whether the “distant” sibling is even in a position to ask that the Court make inquiry into his or her sibling’s actions. Under the Substitute Decisions Act, the Court will order an accounting by the attorney under power of attorney for property but not without carefully considering the motives of the person seeking leave of the Court.

The test for leave is inherently discretionary and, in effect, involves a morality assessment of the motives of the applicant. So, for instance, where a son of an incapable mother sought to compel an accounting by his sister (who managed her mother’s finances), the Court chose not to grant leave where the son had not visited his mother for eight years. What was startling about this decision was the fact that the attorney had transferred the grantor’s property into joint ownership with herself and then promptly sold the property. Nonetheless, while the Court acknowledged that the situation might be cause for concern, the Court was not prepared to entertain the inquiry when the applicant before it did not appear to have a genuine concern for the welfare of the grantor.

Simply put, the duty of an attorney to account would appear to only be relevant if some person has sufficient standing before the Court to seek to compel the assessment. Certainly, an alternative is for the Office of the Public Guardian and Trustee (“PGT”) to carry the ball for the distant sibling who does not gain the trust of the court. Accordingly, if the distant sibling is not perceived by the court to be operating from a moral high ground, one strategy to employ is to seek to bring the PGT onside to make the inquiry on behalf of our client. However, unless there is clear and compelling evidence of elder abuse, the PGT will be disinclined to get involved.

Have a great day, David