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Probate and Proving a Will

Posted on July 15, 2010 by Hull and Hull LLP

The term "probate" recurs throughout estates practice as a noun, verb and adjective. The most common context refers to the process of getting a court to provide some sort of official certification or recognition that a testatmentary instrument is the Last Will of a deceased. In Ontario, the probate process results in the issuance of a Certificate of Appointment of Estate Trustee With a Will (or Without a Will).

Under the modern Rules of Civil Procedure, the procedure resulting in the issuance of a Certificate of Appointment rarely requires that a judge review the application, or even the alleged Will. By Rule 74.14, an application need be referred to a Judge only where, in the opinion of the Registrar, the application and the accompanying materials are not complete or contain information on which the Registrar has a doubt. This results in an efficient administrative process, but any interested party can challenge the validity of a such a probated Will, and the fact that a Will has been "probated" has no probative value when it comes to proving the Will in solemn form, as it is called.

A judgment upholding the validity of a Will does not necessarily "probate" that Will. Parties to the proceeding may not want a Certificate of Appointment to be issued, and so they will not request that a Certificate of Appointment be issued as part of the Judgment. This might be the case where the Will is a "corporate" or "secondary" will, and is restricted to assets that can pass outside of probate (often to avoid estates administration tax).

Have a great weekend,

Christopher M.B. Graham - Click here for more information on Chris Graham.

Tags: Estate & Trust, Probate, Will Challenge, certificate of appointment of estate trustee

Verdict in Astor Estate Criminal Case

Posted on October 9, 2009 by Hull and Hull LLP

The 85 year old son of New York socialite, Brooke Astor was convicted yesterday of grand larceny and scheming to fraud. For a background to the proceedings, click here and here.

After a 5 month trial and 12 days of jury deliberations, Anthony D. Marshall was found guilty of 14 charges, including giving himself a pay-rise of $1 million for managing his mother’s finances. He faces a mandatory sentence from 1 to 25 years behind bars. His sentencing is set for December 8, 2009.

The attorney who did the estate planning for Mrs. Astor was also convicted of forgery charges. Click here to read David Smith’s blog on the attorney’s actions.

The prosecution argued that Mrs. Astor’s Alzheimer’s was advanced so far that she could not understand the complex changes to her 2004 Will or other financial decisions that benefitted her son, such as the $1 million salary.

The defence has argued that Mrs. Astor had lucid moments despite her Alzheimer’s and that she gave her only son control of her estate out of love.

The story does not end there. Mr. Marshall may appeal and the question of what will happen to Mrs. Astor’s $180 million estate has not been resolved. A civil case was postponed pending the resolution of the criminal charges against Mr. Marshall. Some of the charitable beneficiaries of the estate sent observers to the criminal trial and it are not clear how evidence it the criminal trial will impact the civil case.

Whichever Will is eventually probated, Mr. Marshall will receive a large portion of his late mother’s estate.

Happy Thanksgiving,

Diane Vieira

Diane A. Vieira - Click here for more information on Diane Vieira.

Tags: Blog, Brooke Astor, News & Events, Will Challenge, criminal, estates and trusts

Tucker and Tucker Estate Will Challenge - Episode #149

Posted on February 10, 2009 by Hull and Hull LLP

Listen to Tucker and Tucker Estate Will Challenge

This week on Hull on Estates Megan Connolly and Paul Trudelle discuss a decision that was released on January 21, 2009 on the Tucker and Tucker estate, involving a will challenge.
The sole issue was whether or not this particular will was valid.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

Tucker and Tucker Estate Will Challenge - Episode #149

Posted on February 10^th, 2009 by Hull & Hull LLP

Paul Trudelle: Hi and welcome to Hull on Estates. You’re listening to episode 149 on Tuesday, February 10, 2009.

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.

Megan Connolly: Hi, I’m Megan Connolly.

Paul Trudelle: And I’m Paul Trudelle.

Megan Connolly: And if you want to be heard on Hull on Estates, you can participate by leaving us a comment. E-mail us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Paul Trudelle: And we always welcome your comments and questions or suggestions and we will respond to you as soon as we hear from you at either of those addresses.

Megan Connolly: So today we’re talking about a decision that was released, when was it, January 21, 2009 on Tucker and Tucker Estate and this involved a Will challenge.

Paul Trudelle: It was a Will challenge and it was interesting here because the Will was a formal Will executed by the deceased in front of witnesses, however the twist is that it was a Will that was prepared by a son of the deceased in his handwriting. Because it was duly executed before witnesses, it wasn’t considered a handwritten Will of the deceased. And the Court got into that as to whether it was to be accepted as a valid Will. That was the sole issue was whether the Will was valid.

Megan Connolly: So I guess by way of background, Mrs. Tucker, who was the deceased, was predeceased by her husband and survived by three sons. Now when her husband was still alive, she had made a Will leaving everything to him and saying if he predeceased her, then it would go to her three sons in equal shares.

Paul Trudelle: Right and that was in 1986. And then after her husband died, she re-did her Will with a lawyer. At that time, she appointed her one son, Richard, as her executor. And then she divided her residue amongst Richard as to 40%, William as to 40% and Donald as to 20%.

Megan Connolly: And the explanation at the time for this division, and this was in 1994 she did that Will, was that Richard and William were around more and took care of her and as a result, I guess, she just wanted to leave them a greater share of her estate.

Paul Trudelle: Right and that Will, the 1994 Will, went on to provide that Richard, the one son, was to be allowed to stay in the house for one year after death, assuming he paid all expenses. He was given a right of first refusal to purchase the property, at which time he would pay 60% of the appraised value, or he could rent out the house at a reduced rate with the proceeds being divided amongst the children upon sale as set out in the Will.

Megan Connolly: And at the time the 1994 Will was made, it’s worth mentioning that Richard, I guess, had other roles with respect to her property. She opened a joint account with him, so he could help her pay the bills. She named him as her attorney for property and she also designated him as the beneficiary on a life insurance policy.

Paul Trudelle: Right. Now time passed and we come up to 2004 and at that time, the testator made a new Will in which she changes the division of her estate. At that point she changes it so that rather than monies going to her son William, they’re going to go to William’s daughter as to the same percentages. And the reason for this was because William was on Social Assistance at the time and his entitlement would be affected if he was a beneficiary under the Will.

Megan Connolly: Okay, its worth mentioning at this time, she seems to be on good terms with all of her children. Richard and William were living with her and there’s nothing in the case to suggest that William was at all upset that Christine, his daughter, would be getting his share.

Paul Trudelle: That’s right, yes. More importantly here, or most importantly perhaps, that Will, the 2004 Will, the first 2004 Will, deleted the rights with respect to the property that were granted in the 1996 Will.

Megan Connolly: Yeah, and I guess the other notable thing, well I’ll tell you why in a minute, is this Will was done by a lawyer, who I guess presumably met with and taken instructions from her and then completed the Will.

Paul Trudelle: Yes. And shortly after that Will was made, the testator expressed some…it said that she expressed some issue with respect to the Will and another lawyer was called in to take instructions for preparing a new Will. And this other lawyer took instructions, however no formal instructions were received to complete a Will and he never opened the file and no formal Will was prepared by this other lawyer.

Megan Connolly: And it may be just worthwhile quickly mentioning what the issue was, although it’s not completely clear what the rationale was in the decision. Apparently Mrs. Tucker learned and was surprised by the fact that Richard had right to the house under the 1994 Will and this was very, very distressing to her.

Paul Trudelle: Yes, it said that learning that her son, Richard, had rights under the 1994 Will caused her great anxiety, stress and a violent angina attack. She was upset to learn about that and that led to her, it’s suggested, wanting to make changes with respect to her Will as it stood in 2004.

Megan Connolly: So around this time, things were stressful and of course, they were all living together and there’s some discussion in the case how the relationship started to break down. Of course, William was very, very suspicious of Richard and I think there were arguments and finally Richard, I think, moved out.

Paul Trudelle: That’s right. I think he moved out in May of ’04 according to the reported decision. Following him moving out of the house, William testified that he opened a new joint account with his mother and so he was made survivor of that bank account. He also says, William says, that he was unable to contact the lawyer who was contacted to prepare the Will. As a result of this, and in order to relieve his mother of stress, he took instructions from her and wrote a new Will for her and this led to the issue, the validity of that Will that was prepared by William, in William’s handwriting, and signed by the mother.

Megan Connolly: And in this Will, Richard was removed as a beneficiary and the estate was divided equally amongst Donald, the son and Christine, William’s daughter. And I guess the circumstances are interesting. As Paul said, William literally wrote the Will for his mother. He then, I guess, gathered witnesses, two close family friends to come to the mother’s house so she could sign the Will. And he video-taped the execution of the Will.

Paul Trudelle: And the video-tape here, I think, it’s important to note, was used by the Court and relied upon by the Court to find that the Will was duly executed. However the Court went on to make comments about the video-taping of the Will when it discussed the suspicious circumstances surrounding the Will and in fact the Court went as far as to say that the fact that the Will signing exercise was video-taped was in and of itself a suspicious circumstance. The Court states that if there were no concerns about health, capacity or influence, then there would be no video-tape. And the Court went on to state “to watch the video-tape is almost to watch a play”.

Megan Connolly: Right.

Paul Trudelle: So with respect to that execution of that handwritten Will that was signed by the testator, that becomes the issue in this lawsuit. It was challenged by Richard. Just as an aside, though, it’s interesting to note that it wasn’t Richard himself who was challenging the Will. Richard had made an assignment in bankruptcy and it was his trustee who was challenging the Will. The trustee in bankruptcy would receive the assets that Richard would be entitled to under the prior Will.

Megan Connolly: What I thought was interesting, though, is and it’s mentioned in the decision, the estate itself really wasn’t big at all. It said that it consisted only of the deceased’s principal residence and that had been sold for something less than $100,000. So given it appears that in the previous Will, Richard would have received what…about 40%. And when you look at the legal fees, he is looking at I guess a trustee in bankruptcy chasing after $40,000.

Paul Trudelle: Right but still we have this trial and I’m just trying to see how long the trial went. It was heard over 5 days in 2008. It was a 5 day trial that would come into significant cost. You would think that the costs would outweigh the benefits however I presume this is something that the trustee in bankruptcy had to pursue on behalf of the creditors of Richard’s estate.

So the Court looked at the evidence that we’ve discussed and went on to consider whether the Will was validly executed or not. It relied on the landmark decision of Scott and Cousins that sets out the principles that are relevant and they are ably summarized in that decision. The Court also turned to Section 13 of the Evidence Act which requires that evidence be corroborated and considered whether there was any corroborating evidence.

Megan Connolly: And that was a bit of a problem here because the only uninterested party who didn’t really have an interest in the outcome was one of the witnesses to the Will. And the Court said well sure, he came and witnessed the signing of the Will but he wasn’t privy to the preparation of the Will, he had no insights into the instructions she had given, the changes she wanted to make or why she would have done any of this. So the Court didn’t really find that his evidence had much in the way of probative value.

Paul Trudelle: That’s correct. The Court felt that the key time that they had to consider was when the Will was drafted rather than when it was executed. And it went on to consider suspicious circumstances that existed at the time the Will was made and the Court itemized a number of suspicious circumstances that would lead one to question whether this was in fact a valid Will.

Megan Connolly: So one of them had been that she suddenly made this Will excluding the child completely when in three previous Wills, she hadn’t done so.

Paul Trudelle: Right. And in point of that fact, one of the Wills was made just before she made this handwritten Will so the sudden change in circumstances raised an eyebrow.

Megan Connolly: Another issue was, of course, that she had that January 2004 Will where she had received legal advice. All of a sudden this new one Will comes in the absence of advice, when it was written by one of the sons and when it’s completely inconsistent with previous Wills.

Paul Trudelle: That’s right. And that son, William, was found to reside full-time with his mother and in his testimony, he was, it appears to have an interest contrary and was adverse to his brother, who was left out of the Will. The Court found that that must have created a negative household atmosphere that would have been apparent to the testator.

Megan Connolly: As far as the deceased’s physical health was, as mentioned before, she was in declining health. The Court also mentioned that she was on numerous types of drugs and other medication at the time the Will was drafted.

Paul Trudelle: Right and as a result of that, her son William, was around 24-7 according to the report and that would give rise to a possibility of undue influence.

Megan Connolly: And just going back to the issue of collaborative evidence, its worthwhile noting that Christine, William’s daughter, who was present when the Will was signed, and who was to receive 50% under the new Will, wasn’t called as a witness and that the Court mentioned without explanation really, that she was now estranged from her father as a result of these proceedings.

Paul Trudelle: Right and I think it’s important to note that it’s not always the evidence that you are able to call; it’s also the evidence that you don’t call and adverse inferences can be made. We mentioned the suspicious circumstance regarding the video-tape itself. The Court goes on to state that the Will was in the son’s handwriting and they found that that was suspicious. The son had explained that the mother wasn’t able to, wouldn’t be able to write out the Will herself, although it went on to find that her signature, according to the video-tape, was done quickly and easily and therefore she probably could have drafted the Will herself if that’s what she wanted to do.

Megan Connolly: Okay, so in case you haven’t figured it out by now, the Court found that this Will was not valid and that the earlier January 2004 Will was the valid Will.

Paul Trudelle: Yes.

Megan Connolly: So I guess that’s that.

Paul Trudelle: So it’s an interesting case to read as far as, you know, each of these cases always turn on their own facts. But this is a very unique fact situation, however it’s quite instructive with respect to the issues surrounding the validity of a Will, the test that the Court will apply and how the Court will analyze facts that give rise to suspicious circumstances.

Megan Connolly: Okay, well I think that brings us to the end of this week’s discussion. Thank you for listening and thanks for joining me today, Paul.

Paul Trudelle: Thank you Megan.

Megan Connolly: And we look forward to hearing from our listeners. You can send us an e-mail at hull.lawyers@gmail.com. Be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estates law.

We hope that you enjoyed the show. I’m Megan Connolly.

Paul Trudelle: And I’m Paul Trudelle.

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.

Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Hull and Hull, Hull on Estates, Hull on Estates, Paul Trudelle, Show notes, Will Challenge, megan connolly

Short-circuiting the frivolous will challenge - Episode #146

Posted on January 20, 2009 by Hull and Hull LLP

Listen to Short-circuiting the frivolous will challenge

This week on Hull on Estates Natalia Angelini and Craig Vander Zee discuss the frivoulous will challenge from the perspective of how you might short-circuit it.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

Short-circuiting the frivolous will challenge - Episode #146

Posted on January 20^th, 2009 by Hull & Hull LLP

Natalia Angelini: Hello and welcome to Hull on Estates. You’re listening to episode number 146 on Tuesday, January 20, 2009.

Craig Vander Zee: Hello Natalia, how are you today?

Natalia Angelini: I’m good Craig, how are you?

Craig Vander Zee: Excellent. Happy New Year, by the way.

Natalia Angelini: And to you.

Craig Vander Zee: Welcome to another episode on Hull on Estates. I guess this is the first one for you and I in the 2009 year so it’s a pleasure being able to do this again with you to start the year.

Natalia Angelini: For me as well.

Craig Vander Zee: If you want to be heard on Hull on Estates, you can participate by leaving us a comment and e-mail us at hull.lawyers@gmail.com or you can visit our blog at estatelaw.hullandhull.com.

Natalia Angelini: So Craig, today we’re going to talk about the frivolous Will challenge.

Craig Vander Zee: Well, and I think more specifically, from the perspective as to how you might deal with a frivolous Will challenge to short-circuit it, if you will, or to try and deal with it, terminate the challenge as soon as possible. And I think what’s important to keep in mind is that in a typical Will challenge, the process can involve an Application or a Motion for directions, documentary discovery from parties and non-parties, examinations of parties and non-parties, perhaps even interlocutory Motions. You know, those Motions in a proceeding before a trial is actually heard. Mediation, whether formal or informal, expert reports, a pre-trial conference and a trial. So as we know, it’s a very extended process unfortunately, if the Will challenge goes from its commencement right through to and including a trial.

Natalia Angelini: Yeah, and that’s why I think that one of the best tools to manage the process of a Will challenge is an Order for Directions.

Craig Vander Zee: Well, that’s right, Natalia. An Order for Directions is often the best tool a party has at first instance to manage the Will challenge. Its through the Order for Directions that you will lay out the parties, what the issues are. Is there any interim relief you need? Are you going to have Orders with respect to documentation production, examinations, etc.? So that is the time when you can best, in a typical Will challenge, craft how you want to manage the Will challenge going forward with a mind to the kind of evidence that you will need to marshal for the Will challenge itself as well as the prospects of settlement. And that is certainly what one would want to take advantage of in a typical Will challenge.

Where it’s a frivolous Will challenge and its certainly identified as that, there are other alternatives or proceedings in addition to an Order for Directions that can be utilized. One being a Motion for summary judgment. Another being a Motion for security for costs.

Natalia Angelini: Right. And if you intend to bring those Motions, its I think important to have that as one or both of the provisions in your Order for Directions.

Craig Vander Zee: Well that’s right. At least if they’re not expressly in your Order for Directions, then its something that you give thought to so that (1) if you’re going to need certain evidence for a Motion for summary judgment per se, that you consider how that’s going to be marshalled, even at the time you’re doing your Order for Directions; and also how the provisions in the Order for Directions are going to deal with how the proceeding will be heard. It may very well be, given the case law, that you don’t want to expressly state in an Order for Directions that the matter will only be heard by way of trial, as you want to leave it open for a Motion for summary judgment. And while it appears that even if that form of provision were in the Order for Directions you could still proceed with a summary judgment Motion, why complicate the matter if you don’t need to, and pave the route for that kind of Motion if that’s what you think you’re going to pursue?

Natalia Angelini: Right, good point.

Craig Vander Zee: So, as we know, Rule 20 of the Rules of Civil Procedure, governs Motions for summary judgment in the civil context, both in terms of commercial litigation and in the sense of estate litigation as well. Certainly in the civil litigation context, Motions for summary judgment are by no means unusual and have found their way as a common place mode of dealing with a particular matter. There are a number of Ontario Court of Appeal cases and even Supreme Court of Canada cases that deal with Rule 20 and summary judgment Motions.

Natalia Angelini: Right, and the test which the Supreme Court of Canada set down in the case of Guarantee of North America and Gordon Capital Corp. is that the applicant has to show that there is no genuine issue of material fact requiring trial and therefore that summary judgment is a proper question for consideration by the Court. And once the moving party has shown that, then the responding party has to establish that his or her claim is really one that has a real chance of success.

Craig Vander Zee: And perhaps another way of putting it, the burden to prove that summary judgment is appropriate in the circumstances is on the moving party, that the moving party must show that there’s no genuine issue for trial, that issues of credibility aren’t existent such as to be fatal to the Motion for summary judgment. And then once that’s established, then the responding party has to step up to the plate and prove that there is a genuine issue for trial. It is possible that a responding party may not file materials on the belief that the issue of there being credibility or a genuine issue for trial is so clear cut; however the cases have indicated that…and its possible if there’s holes in the moving party’s case, that that can well indeed be fatal to the Motion for summary judgment. However the cases have indicated, though, that if it is established that there’s no genuine issue for trial, the respondent needs to put its best foot forward with respect to its evidence, play trump if you will, in order to establish that there is a genuine issue for trial.

Natalia Angelini: So why don’t we turn to summary judgment Motions in the estate context. There’s a case by the name of Straus and Bainbridge which was affirmed in 1999 by the Court of Appeal where the Court granted summary judgment in the estates context. And maybe I’ll just go through the facts briefly.

Craig Vander Zee: Sure.

Natalia Angelini: It was a Will challenge and the basic issues were not in dispute. Ms. Straus was the executrix and sole beneficiary under Mr. Bainbridge’s last Will. She was a long-time neighbour and close friend of him and his wife. His wife had predeceased him. And Ms. Straus had assisted Mr. Bainbridge in the care of his wife. It appeared that the Bainbridges had no children. However it was later revealed that Mr. Bainbridge had fathered two children as a result of a prior union. So that prior union ended when the eldest of the two children was 2 years old and the younger child was still in gestation. The facts are that there was no further contact between the two children and Mr. Bainbridge and that both children were later adopted by the mother’s second husband.

Craig Vander Zee: That’s right Natalia. And the Motion for summary judgment was brought by Ms. Straus to dismiss the challenge by one of the estranged sons, if you will, to Mr. Bainbridge’s last Will. The challenge alleged that Mr. Bainbridge lacked testamentary capacity at the time he made his Will and that the Will was procured by way of undue influence. There were some interlocutory issues dealt with by Justice Sheard and then the ultimate Motion for summary judgment was heard by Justice Hoylett who had little trouble, it appears, in granting the Motion for summary judgment and dismissing the Will challenge. On appeal, the Ontario Court of Appeal affirmed, albeit with rather short reasons, but nevertheless affirmed Justice Hoylett’s decision that Motion for summary judgment be granted in the circumstances. And what’s particularly interesting about this decision or the comments by Justice Hoylett are that he found that the responding Affidavit to the Motion for summary judgment was really a punitive Affidavit put in and was replete with speculation, innuendo, hearsay, gossip and rumour. And it went on to say that property characterized, not only has the responding party failed to play trump, but at the risk of over-extending the metaphor, His Honour said that he was afraid the responding party had played a joker. So clearly, in that particular case, the facts were such that it was clear that it was a frivolous Will challenge and the Court granted summary judgment.

Natalia Angelini: Right, and the Court didn’t expressly address the applicability of Motions for summary judgment to Will challenges. That was considered somewhat later in a couple of other decisions.

Craig Vander Zee: Well that’s right, but just on that point, in Justice Hoylett’s decision and that of the Court of Appeal as I recollect, the specific question as to Rule 20 of the Rules of Civil Procedure being the Rule governing Motions for summary judgment and its applicability to Will challenges, wasn’t considered as expressly as it was by the Court in later years. Having said that, both Justice Hoylett and the Court of Appeal did not express any difficulties in granting the Motion for summary judgment.

Natalia Angelini: Right. And after that decision, a few…about two or three years later in Knox and Trudeau and Ostrich and Brunhuber (if I’m pronouncing that correctly) the Court denied summary judgment and in the case of Knox did so on the ground that such Motions were not available in contested estate proceedings?

Craig Vander Zee: And again, what is interesting about those two decisions is that it appears anyways that they were released in 2001, days apart from each other.

Natalia Angelini: Right.

Craig Vander Zee: Unbeknownst, if you will, to the other in that neither case considered the Straus case. So it appears that Motions for summary judgment were ‘walking through the wilderness’, to use that metaphor, for several years. And it wasn’t really until Justice Cullity in his Atori decision where the applicability to Will challenges, that is summary judgment Motions in the case of Will challenges, was again expressly considered.

Natalia Angelini: Right. And there have been several cases since then that have considered summary judgment and have granted it.

Craig Vander Zee: Well, and just before we follow-up on that, in Atori, Justice Cullity did find that summary judgment Motions, despite the comments of the judges in Knox and Trudeau and Ostrich and Brunhuber was available in estate matters in a Will challenge. And as you mentioned, there were a number of cases following those ones we’ve mentioned, that have gone on to consider Will challenges and other estate matters, if you will, in the context of a Motion for summary judgment. Sometimes its granted; sometimes it’s not. But it appears that the ability to bring a Motion for summary judgment is available.

Natalia Angelini: Right, it’s no longer in question. And with that in mind, since its clear that summary judgment is available in contested estate proceedings and more specifically, in a Will challenge, its also important to note that, you know, summary judgment Motions are risky. The moving party has to first meet its onus of proving that there’s no genuine issue for trial. The evidence must be clear and concise and the credibility of witnesses cannot be in doubt, as Craig stated earlier.

Craig Vander Zee: That’s right. Competing evidence as to testamentary capacity, undue influence or the due execution, you know, can very well be fatal to the Motion and will lead to a finding that there is a genuine issue for trial. And the overlay to a Motion for summary judgment is that there are cost sanctions for both winning and losing the Motion. And Rule 20.06, I believe, deals with that. But they can be very substantial. And if you lose your Motion, even if the Will challenge itself is a weak one but the Court finds that there’s a genuine issue for trial, or competing evidence or issues of credibility, then your client could find, or a client could find themselves paying costs in respect of losing the Motion but maybe winning the Will challenge at the end of the day. And since those costs can be substantial, its always a factor, at least I would think, taken into consideration when bringing such a Motion.

Natalia Angelini: Yeah, so that said, risk also lies on the shoulders of the responding party as well. Unsupported allegations of capacity or undue influence will not likely win the day if the moving party proves there’s no genuine issue. And an Affidavit that’s replete with speculation, innuendo, hearsay, gossip and rumour, like in the Straus case, would also not win the day. You know, as is commonly said, you have to lead trump or risk losing.

Craig Vander Zee: Well and again, just before we close out Natalia, on the issue of costs. Again, the issue of costs is in the discretion of the judge. But again, it is a factor that can certainly sway one from either bringing a Motion for summary judgment if its not clear on the face of it that there’s no genuine issue for trial. So again, they’re available, they’re risky, the Court may proceed hesitantly, but there is certainly case law where summary judgment has been granted. And especially in the case of a frivolous Will challenge. But again, the burdens must be met. And with that in mind, if a summary judgment Motion is going to be brought, going back to our initial comments about Orders for Directions, it may very well be that the Order for Directions contemplates a summary judgment being brought, not necessarily expressly but leaving it open for the opportunity to do so, if it is an appropriate, reasonable and right circumstance to bring the Motion. And I think that’s where we’ll end off today.

Natalia Angelini: Great, thanks Craig. And thanks for listening. And it was a pleasure podcasting with you, Craig. I look forward to podcasting with you again soon.

Craig Vander Zee: Thanks Natalia. And again, we look forward to hearing from our listeners. You can send us an e-mail again at hull.lawyers@gmail.com. Again, be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope that you enjoyed the podcast again today and it was a pleasure, Natalia.

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.

Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Craig Vander Zee, Hull and Hull, Hull on Estates, Hull on Estates, Natalia Angelini, Show notes, Will Challenge

Offers to Settle in a Will Challenge

Posted on December 30, 2008 by Hull and Hull LLP

Offers to settle and more specifically, Rule 49.10 of the Rules of Civil Procedure, are intended to force the parties in a legal proceeding to consider the settlement of a matter prior to trial failing which, costs consequences will result if an offer is more favourable than the result obtained at the trial.

In the general litigation context, the Ontario Court of Appeal has held that the Court should depart from the prima facie costs consequences in Rule 49.10 only where, after giving proper weight to the policy of the rule and the importance of a reasonable predictability and the even applicability of the rule, the interests of justice require departure.

The applicability of offers to settle and Rule 49 in a Will challenge context has been considered by Judges with different results. In the often quoted case of Olenchuk Estate, Re. the Court found, amongst other things, that it would seem somewhat incompatible with the nature of these proceedings to apply rules designed to encourage settlement of adversarial, contentious, proceedings and when there appears to be a reasonable question whether the deceased was mentally capable of making the Will that is propounded; it imposes an obligation on the Court to be satisfied that the Will was the product of a capable testator before putting on it the imprimatur of the Court. In Olenchuk, the Court further held that Rules designed to encourage settlement of contentious litigation can be applied in estate matters, but the difference between certain kinds of estate litigation and other forms of litigation can make it difficult to apply Rules of Civil Procedure to estate proceedings.

The Ontario Court of Appeal discussed the traditional approach and modern approach to awards of costs in estate litigation in its 2005 decision of McDougald Estate v. Gooderham. The Court found that the modern approach to fixing costs in estate litigation is to carefully scrutinize the litigation and, unless the Court finds that one or more of the public policy considerations, set out in its decision applies, to follow the costs rules that apply in civil litigation.

The Court of Appeal noted that “Gone are the days when the costs of all parties are so routinely ordered payable out of the estate that people perceive there is nothing to be lost in pursuing estate litigation.”

In a Will challenge, offers to settle, whether informal or formal can be an important tool in regard to the disposition of costs; perhaps more so in light of the approach for costs set out in McDougald v. Gooderham.

Enjoy the Holidays! Craig

Tags: Blog, Litigation, McDougald Estate v. Gooderham, Rule 49, Will Challenge, costs, estates, offer to settle

Short Circuiting the Frivolous Will Challenge

Posted on December 29, 2008 by Hull and Hull LLP

Facing a frivolous Will challenge can be very frustrating, time consuming and costly.

In a typical Will challenge proceeding, the process can involve an application/motion for directions, documentary discovery from the parties and non parties, examination of the parties and non parties, interlocutory motions, mediation (informal or formal), expert reports, a pre-trial conference and a trial.

In the typical Will challenge, an order for directions can be the best tool a party has, at first instance, to manage a Will challenge. An order for directions allows a party to craft the manner in which a Will challenge may proceed and to seek the assistance of the court with obtaining interim and/or ancillary procedural relief to the Will challenge. The provisions included in an order for directions, may depend on, among other things, the issues and parties involved, the evidence to be marshalled, whether mediation is a requirement and, if not, how the evidence known, and/or to be obtained, might be utilized in the pursuit of settlement and the claim, and other relief in respect of the estate that may be necessary.

In the case, however, where the Will challenge is frivolous and the propounder of the Will wishes to short circuit the typical Will challenge process, consideration can be given to, among other things, a motion for summary judgment and/or security for costs. Such a motion can be a powerful tool in litigation in the appropriate circumstances.

An offer to settle can also be used to try and force an opposing party to resolve a frivolous Will challenge or face potentially substantial costs consequences if the proceeding is continued.

Enjoy the Holidays! Craig

Tags: Litigation, Orders Giving Directions, Will Challenge, estate law blog, offer to settle

Offers to Settle in the Context of a Will Challenge - Hull on Estates #137

Posted on November 18, 2008 by Hull and Hull LLP

Listen to Offers to Settle in the Context of a Will Challenge

This week on Hull on Estates, Craig Vander Zee and Bianca La Neve talk about offers to settle in the context of a will challenge. They explain the difference between a will challenge and civil litigation and discuss several examples of will challenge cases.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

Offers to Settle in the Context of a Will Challenge – Hull on Estates Podcast #137

Posted on November 18^th, 2008 by Hull & Hull LLP

Bianca La Neve: Hello and welcome to Hull on Estates. You’re listening to episode number 137 on Tuesday, November 18, 2008.

Bianca La Neve: Hi and welcome to another episode of Hull on Estates. I’m Bianca La Neve.

Craig Vander Zee: And I’m Craig Vander Zee. And today I think, Bianca, we were going to talk about Offers to Settle in the context of a Will challenge. But first of all, how are you?

Bianca La Neve: I’m great, how are you?

Craig Vander Zee: Not too bad, did you have a nice weekend?

Bianca La Neve: I did, we celebrated our 5 year anniversary this past weekend.

Craig Vander Zee: Congratulations, but there’s many more to go.

Bianca La Neve: Yes, that’s what everyone keeps telling me.

Craig Vander Zee: What is the fifth anniversary? Is that a paper…?

Bianca La Neve: I don’t know and I know I didn’t get any jewellery so…

Craig Vander Zee: Well I guess that’s the tenth year anniversary, isn’t it?

But back to the Offers to Settle. The starting point for all of this is to recognize that Will challenges, by their nature and the function of the Court with a Will challenge, is different than in civil litigation. In civil litigation, it’s maybe A Co. against, A company that is against B company, there’s a winner, there’s a loser, the Court determines and then you have cost consequences that follow. And in the context of having made Offers to Settle, those cost consequences that may follow an award usually may be affected by the Offers, depending on if the Offers are more favourable than what the result was achieved at trial.

In the Will context, of course, it is the Court that is granting the validity of the Will. And in that case, as the Will, you know, is applicable to the world at large, or in rem as it is, the Court does have a function here. Having said all of that, there is a case in Ulinick that is very often quoted that considered this very issue.

Bianca La Neve: For background purposes, the facts of the case are as follows: the deceased had executed a Will in approximately 1979 and at the time, the deceased had been in and out of hospital and had actually undergone major surgery. One of the deceased’s children ultimately challenged the Will, asserting lack of capacity and undue influence by his sibling, who was the sole beneficiary of the deceased’s estate. There were two competing opinions from medical experts as to the testator’s capacity during the time of the Will, but ultimately Justice Sheard dismissed the Will challenge.

Craig Vander Zee: And in that regard, or perhaps more specifically, Justice Sheard found that with respect to the lack of testamentary capacity, that that allegation had been justified, that is, that it was reasonable to make in the circumstances because there was actually two expert neurologists who gave competing evidence at the trial. And as such, he found on that issue while ultimately he dismissed that issue, he found that it was justifiable to bring it up. And on that issue, he then found with respect to costs that the unsuccessful party shouldn’t have to pay the costs of the successful party. It’s interesting to note, though, that with respect to the assertion of undue influence, that there wasn’t any justification according to Justice Sheard for bringing that allegation. So with respect to that allegation, Justice Sheard found that whatever the cost of the proceedings were that could be reasonably demonstrated to have resulted from that allegation, were going to be on the shoulders of the unsuccessful litigant here. And that is interesting because it wasn’t a case where Justice Sheard found that costs are payable out of the estate regardless of success, and considered even the separate allegations in terms of warding off the requirement to pay costs was going to be dealt with. On the issue of Offers to Settle, though, Justice Sheard found that the offer made on the eve of trial didn’t factor into his consideration on costs. And so in that respect, actually, His Honour found that the Offer to Settle didn’t have effect.

Bianca La Neve: But Craig, other cases in Will Challenges have considered Offers to Settle.

Craig Vander Zee: And that’s right. And perhaps before touching on some of those cases, and we’ll probably just mention them by name given the time today, but I think it is helpful to consider the traditional approach to costs and the modern approach to costs when it comes to awards in Will challenges because it does seem to signify a change in the way at least the Court intends to look at how costs are going to be applied.

Bianca La Neve: For many, many years, in most Will challenge cases, the Courts would order all or most of the costs of the parties to be paid out of the estate. Not only was the Court disinclined to require the unsuccessful party to pay the costs of the successful party, it would also direct that the unsuccessful party be partially or even wholly indemnified by the estate.

Craig Vander Zee: Well, and that meant that the traditional approach to the award of costs in a Will challenge really was a departure from the usual rule in civil litigation, which is to award costs following the event. But while I completely agree with your comment, Bianca, that in many, many cases, for many, many years, it seemed that there was almost an impunity with respect to cost consequences in dealing with Will challenges for the unsuccessful litigant, that that’s not really what the traditional approach stood for. And the traditional approach derived from a case called Mitchell and Garde which is a case from 1863. And not really wanting to go through it, it really boiled down to two principles or policy reasons for an order for costs that would guide how the Courts should look at it. And it was basically this: that the usual rule that costs follow the event will not apply where firstly, the testator or those interested in the estate have been the cause of the litigation; and secondly, where the circumstances reasonably lead to an investigation of the Will itself.

So in the first scenario, it’s where the testator has drafted a Will which would lead one, or has done it in circumstances which would lead one, to challenge it, so where the cause of the litigation is the testator or, again, those interested in the estate. And then the second one is where there is a reasonable basis to have an investigation in respect of the document being propounded. In those scenarios, costs will not follow the event. But that became, over the years, interpreted by at least many judges to mean that there was impunity in bringing Will challenges. In the modern approach, that was more spelled out in a very directed way by the Court of Appeal in its 2005 decision of McDougall Estate and Gooderham.

Bianca La Neve: So in that case, the Court of Appeal found that the traditional approach had been displaced. The modern approach to fixing costs is to carefully scrutinize the litigation, so the Will challenge, and unless the Court finds that one or more of the public policy considerations set out by Craig applies, then a Court should follow the cost rules that apply in regular civil litigation.

Craig Vander Zee: And the Court went on to say, the modern approach to awarding costs at first instance, and again this is in a Will challenge, recognizes the importance of the Courts and the role that they play in ensuring that only valid Wills are executed by competent testators. It also recognizes, though, and this is where it is set out I think expressly now, and clarified, that the need to restrict unwarranted litigation and protect estates from being depleted by litigation, is going to be front and centre. And indeed, the Court of Appeal went on to say gone are the days when the costs of all parties are so routinely ordered payable out of the estate that people perceive there is nothing to be lost in pursuing estate litigation. So from that perspective, the Court hasn’t said that in the appropriate circumstances, at least in my view, that an unsuccessful litigant in a Will challenge won’t get their costs or there won’t be the cost consequences that follow the event. But if they find that the public policy reasons that I mentioned before or the basis I mentioned before are not fittingly applied to the situation, then civil litigation rules are going to apply. And what that really is instructive as well is in respect of Offers to Settle because that would also mean that in the case where the public policy reasons are not affecting cost consequences and civil litigation rules apply with respect to costs consequences, that Offers should have that effect. Offers to Settle have been, in a number of cases, considered by Courts in Will challenges. But here it opens the door for a Rule 49 Offer to be more consistently applied because the Courts in the past have differed in their approach to Rule 49 Offers.

Bianca La Neve: So Craig, you mentioned earlier we would go through some of the cases. And in Barone Estate, without going into the facts, in the end the judge found that there was no incompatibility in applying Rule 49 and traditional non-estate cost principles to Will challenge proceedings.

Craig Vander Zee: Well, that’s right and that was a 1997 case. But then in a case the next year, the following year, Justice Haley found in Schwitzer and Pezecki that Rule 49 didn’t apply to estate proceedings. But with respect to the applicability of 49, it really doesn’t end there. And again, Rule 49 is the rule that specifically sets out, Rule 49.10, specifically sets out cost consequences when an Offer is made and is more favourable than the judgment that’s obtained, vis-à-vis the opposing party. In a case called Kerner and Fiorelli which was a case back in 1990, so 8 years before Justice Haley’s decision, the Court found that Rule 49 could not be ignored. So the case law regarding the applicability of Rule 49.10 seemed to have been unsettled. But it seems to me that the decision in Gooderham opens the door for that applicability of Rule 49 in the appropriate circumstances.

Bianca La Neve: So I think that’s a good place to wrap up today, Craig. If any of our listeners want to leave a comment, they may e-mail us at hull.lawyers@gmail.com or you can visit our blog at www.estatelaw.hullandhull.com. Thanks.

Craig Vander Zee: Thanks very much, Bianca, it’s always a pleasure.

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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Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Bianca La Neve, Craig Vander Zee, Hull and Hull, Hull on Estates, Hull on Estates, Show notes, Will Challenge, law podcast

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

Posted on October 28, 2008 by Hull and Hull LLP

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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Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates and Succession Planning, Litigation, Show notes, Suzana Popovic-Montag, Will Challenge, Will Challenges, constructive trust, estoppel, ian hull, meruit, propriety, quantum, resulting trusts

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

Posted on October 21, 2008 by Hull and Hull LLP

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

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.

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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Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, TOPICS, Estate & Trust, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates and Succession Planning, Litigation, Proprietary Estoppel, Show notes, Suzana Popovic-Montag, Will Challenge, ian hull, meruit, quantum

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

Posted on October 14, 2008 by Hull and Hull LLP

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

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.

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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Will Challenge Litigation - Part 8 - Hull on Estate and Succession Planning

Posted on October 7, 2008 by Hull and Hull LLP

Listen to Will Challenge Litigation - Part 8

This week on Hull on Estates, Ian and Suzana discuss corporate issues and implications during a will challenge. Issues of testamentary capacity and undue influence can become extremely complex questions to investigate in a corporate inquiry.

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 8 - Hull on Estate and Succession Planning - Podcast #133

Posted on October 7, 2008 by Hull & Hull LLP

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening to Episode 133 of our podcast on Tuesday, October 7^th, 2008.

Ian Hull: Hi, Suzana.

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

Ian Hull: Just great.

Suzana Popovic-Montag: That’s good. Just a quick reminder to our listeners to feel free to call and leave us any comments you might have on our call-in line which is 206-457-1985.

Ian Hull: And of course, look to our blog at estatelaw@hullandhull.com and an e-mail, we would welcome any comments through hullandhull@gmail.com.

So, Suzana, as we are discussing the Will challenge process and you say, listening, and we’re also on the video as well, let’s spend some time today talking about a branch of what we see commonly arising in Will challenges, and that is, what is the corporate implications and what sort of corporate issues can arise?

Suzana Popovic-Montag: And this really is a timely issue, and I think one that we see in many files, just by virtue of the fact that our estates tend to be quite large these days. And as part and parcel of the planning during a lifetime, there is going to often be a corporate component.

Ian Hull: And that corporate component also, in Ontario, is very much highlighted because we have the primary and secondary Will regime, where assets are being placed, corporate assets are typically being placed in the secondary estate. So we have to be alert to the fact that a lot of estates are going to have a corporate element to it. And what we will tell our clients often is, sit back and help us understand the corporate machinations. And they’ll look at us sort of strangely and say, well what does that have to do with testamentary capacity? Or what does that have to do with undue influence? How can that have any impact on either upholding a Will or setting aside a Will? And the answer to that is fairly straightforward. And that is this: that an element of testamentary capacity is to know and understand the nature and effect of your dispositions. What does that mean? Well, that means that typically, the person who undertakes the Will and estate plan has to understand what they’re doing. Now the case law, without getting too intricate in it, gets very close to the line. It talks about whether or not you knew and understood, but it doesn’t expect the testator to have every single aspect of the estate plan understood at every level of minutiae.

Suzana Popovic-Montag: And the reason, of course for that, is because these things tend to be complicated, and for a lay person, certainly we can set up corporations and have these kinds of arrangements put in place. But again, without understanding the minutiae, because we’re relying on professionals to help us with that part of the process.

Ian Hull: And so the Courts have historically said, if you want to develop a complex estate plan, as long as you understand the concepts, you understand generally what’s going on, the Courts have typically been fairly lenient and they won’t go so far as to suggest that the individual didn’t know and understand. So we say to our clients, though, having said that, the problem is this: what if you truly didn’t know and understand? And what if the corporate machinations are so complex, or, that the very fundamental effect of the corporate dealings had such a dramatic tax impact on death that you didn’t understand that? Does that drive into this possibility that the Will is not valid? And that is really what we want to highlight today. And the short answer is, yes. The Courts will start to say, well, wait a minute. Did the deceased understand that by putting a corporation, establishing a corporation this way, would result in a tax over here that would then affect another beneficiary that maybe that deceased didn’t understand. And a classic example is that, in Ontario and Canada throughout is that, RRSPs, and that illustration really demonstrates what a knowledge and approval could be in a situation like that.

Suzana Popovic-Montag: And the key of course, is the fact that you can’t give something away that you don’t own, but you need to know what you own before you can decide how you want to give it away and to whom. And so to be able to demonstrate that this was, in fact, the case, is maybe quite important in these situations. And of course, that just leads me to think to the evidential difficulties that arise in proving ownership or what someone thought they owned or understood they owned. And again, that comes back to some of our previous discussions, Ian, where that is a difficult thing to establish in some circumstances, so we’ve got to be ready for it.

Ian Hull: Absolutely. And where these things start to get balled up and mixed up is that if someone does a classic estate freeze, where they have a company and they’ve developed it, and they get to the point where they say we want to freeze the tax liability there and then we want to put all of the growth into the hands of my children, and let them enjoy the growth. That’s the classic estate freeze, and we won’t get into great detail today, but one worthy of its own podcast or two. That scenario may well not have been fully understood by the deceased. The deceased may not have understood that impact and then, it might have an impact on and drill down on this whole question of whether or not he knew and understood the nature and effect of his dispositions.

Suzana Popovic-Montag: And in the right circumstances, it really can have a snowball effect, and that’s something that we certainly will try to keep in mind when we’re talking with clients about these kinds of situations.

Ian Hull: So it seems to me that we’ve tried to answer hopefully the question of, well, why are you bothering getting into an inquiry which could be cumbersome, it can be voluminous. I mean, you talk to people who get into these situations and they’ve established a corporation 30 years ago. You’re looking at the possibility of having to look at corporate records over 30 years. You’re looking at the possibility of talking to the accountant about corporate records over 30 years. Now that may be an extreme example, but if you have multiple corporations and so on, it adds a layer of complexity, when we talked about that intense investigation stage. This adds a layer of complexity. And it comes back to this point that often our clients will say, give me a budget. Tell me how much this is going to cost me.

Suzana Popovic-Montag: That’s right.

Ian Hull: And it’s very difficult when you have corporations. So we will tell our clients: (a) we think we have to look into it, at what level depends on each fact of the case; and (b) we’re not going to promise you that a quick review of the minute book is going to be sufficient. Because it can undermine the whole question of testamentary capacity which is the cornerstone of a significant percentage, I would say higher than 80% of Will challenges, are fundamentally based on the allegation that the deceased did not have testamentary capacity. We’ve talked about the other prongs of attack, but the testamentary capacity tends to be the strongest and the most forcefully pursued element, and so the corporate aspect of it is an important element as well.

So, during our next podcast, what we’re going to talk a little bit about and we’re going to kind of go sideways, I think, but I think it’s a worthwhile time to, as we set up the types of claims that can be made and we talk about the types of claims that can be made. We’re going to talk about some of the claims that are made concurrent, or at the same time as a Will challenge, which, the old adage is, throw mud at the wall to see what sticks. Well, we don’t really typically, we don’t encourage our clients to throw mud at the wall and see what sticks strategy, because sometimes that bounces back. But you also want to consider what other claims and we’re going to talk about quantum meruit claims, we’re going to talk about proprietary estoppel claims, things like that, that add more sauce to the gravy.

Suzana Popovic-Montag: That’s great, Ian, I look forward to our next podcast. Just a quick reminder, of course, to our listeners, please feel to call and provide us with any feedback or any comments you might have, on either the video format or the audio portion of our discussion today. Our number is 206-457-1985.

Ian Hull: And of course as I remember, please e-mail us at hullandhull@gmail.com.

Suzana Popovic-Montag: Thanks very much, Ian.

Ian Hull: Thank you.

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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Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates and Succession Planning, Litigation, Show notes, Suzana Popovic-Montag, Testamentary Capacity, Undue Influence, Will Challenge, corporations, ian hull

Will Challenge Litigation - Part 7 - Hull on Estate and Succession Planning

Posted on September 30, 2008 by Hull and Hull LLP

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

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.

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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Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Fraud, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates and Succession Planning, Litigation, Show notes, Suzana Popovic-Montag, Will Challenge, execution of wills, forgery, ian hull, litigation avoidance, proper execution

Will Challenge Litigation - Part 6 - Hull on Estate and Succession Planning

Posted on September 23, 2008 by Hull and Hull LLP

Or, listen to Will Challenge Litigation - Part 6 by clicking here.

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

They pick up where they left off last week by addressing undue influence. What is undue influence and how do we prove it? Next week they will continue their discussion on the different grounds upon which a will can be challenged.

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 6 - Hull on Estate and Succession Planning - Podcast #131

Posted on September 23, 2008 by Hull & Hull LLP

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening to Episode #131 of our podcast on Tuesday, September 23^rd, 2008. Hi there, Ian.

Ian Hull: Hi, Suzana. How are you doing today?

Suzana Popovic-Montag: I’m well thank you, how are you?

Ian Hull: Just terrific. We are thinking through this Will challenge process and we’re trying to hopefully take it beyond the typical Will challenge and talk about some sophisticated steps that are often involved, (a) because they’re good, they’re helpful hopefully, for people who want to get into these Will challenges, but (b) it’s helpful to know what you get yourself into. And this is part of it. We talked about in our last podcast getting a retrospective opinion. This is not uncommon, but it’s also a very expensive process. You have to pick the right expert, you have to make sure the report is clear and concise in a way that a judge is going to receive it well, because judges are people, too. They don’t want to see a 20 page report full of esoteric medical terms that nobody can follow. So there’s a strategy within the strategy of bringing that on.

Let’s talk now about how we deal with the question of undue influence because we described in our last podcast what undue influence was, and that is coercion, and that is the arm-twisting. So, let’s talk a little bit about what do we mean by that and, more importantly, how do we prove it?

Suzana Popovic-Montag: And really, the allegation of undue influence is that the testator, at the time that he or she created their Will, was not doing it on their own free volition. And so as Ian classically describes it as this arm-twisting, the judges call it that in a lot of cases as well. And the idea there is that someone has influenced you to do something that you would not otherwise have wanted to, or at least not to that extent. So maybe yes, you did want to provide for little Johnny but not to the extent of your full estate, and to the exclusion of your daughter Betty. So that’s the kind of idea when we say undue influence. Certainly there’s a level of influence that we all have on our family members. The question is, when is that influence undue in the sense that it could compromise your capacity to make a valid Will.

Ian Hull: And the classic example in the case law of what is undue is, when you sit across the table from your mother and you say, if you don’t do what I say, I’m going to put you in a nursing home. That’s a graphic and obviously, hopefully, never said illustration, but in our world we do see it and we see that it’s being alleged to have been said, and that’s a classic undue influence. The thing that really we’re troubled with, with undue influence is that the nature of the claims and the allegations are typically so volatile, they’re so, some people say, mean-spirited because if you’re going to unduly influence you have probably behaved very badly. And so one side of the case is going to say you behaved very badly and spell it out, so it looks like allegations of egregious behaviour, and the other side is going to have a complete opposite. So just the nature of the evidence itself turns this litigation into volatile, typically aggressive, litigation in and of itself. So that’s an important strategy point that we always like to walk through our clients as saying, you go down that road of alleging undue influence, you create a new environment and sometimes a very distasteful litigation environment. So,

Suzana Popovic-Montag: And I was going to say, Ian, and it’s very hard to go back. Once you’ve done that, you’ve sort of crossed the line, it’s very hard to take that back. When you’re dealing with family members, you’re dealing with loved ones, these are really nasty allegations many times. They don’t necessarily have to be, but most of the times we see that they are. And so it becomes a he-said, she-said situation. And by virtue of the allegation itself that someone was unduly influenced, one of the biggest concerns or one of the biggest issues that we face as lawyers, is getting proof of that undue influence.

Ian Hull: Absolutely, and that’s really, so first of all, we don’t like to go down that road because you’re going to have to say some very nasty things or defend very nasty things, and you’re going to create a volatile litigation environment. But the second point is exactly what Suzana has said, and that is that we’re stuck with the legal parameters. I mean the concept of undue influence has been around for hundreds of years. We’re stuck with the legal parameters and the two points within that category are this: one is, is that to allege undue influence is a very tough case to meet. The Courts have said it is the highest of expectation to prove that there was undue influence. The second component is the source of the undue influence has to come, and I may be overstating it, but basically has to come from third party non-participant evidence. And what do we mean by that?

Suzana Popovic-Montag: Well, Ian, what we are suggesting there is that when you make an allegation of undue influence, then your evidence in support of that will be viewed, if it’s directly your evidence, probably by a judge, as self-serving evidence. Well, of course you’re going to say that you saw this or that this happened or that that happened, because that helps your case. But if you want to add credence to your allegations, you’ve got to have the evidence of someone else, someone who’s not vested in the process or the result of the process, who’s going to say yes, I saw that kind of behaviour being exhibited, I saw these threats being made to the testator, I know that this is what actually happened.

Ian Hull: And a classic example to follow through with that is, we talked about the son sitting across the table from mom saying, you do what I say or I move you into an old folks’ home or a nursing home. That threat is seen by the next-door neighbour who happens to be over at the house helping out this nice elderly individual. And that neighbour has no vested interest, is a third party source and is someone that, what we call, corroborates the evidence. And so we remember that we’ve got very difficult expectations. The Courts, undue influence is akin to fraud. It’s like you say that, you’re basically alleging fraud. So the Courts say there’s a very high standard on those who want to pursue that claim. Part of that high standard is that you need corroborative evidence and in that component, the third component is Suzana, what are we getting at when we say corroborative evidence and why does that matter in estate matters?

Suzana Popovic-Montag: Well corroborative evidence, of course Ian, is evidence that’s going to prove additional evidence that you have, so the allegations that have been made in support of the fact that someone was unduly influenced. And one of the key things with this type of evidence, of course, is that if you are in fact, an undue influencer, you’re probably smart enough not to be doing it in front of others. So that you don’t have these third party witnesses or individuals who overhear these threats being made, don’t see this kind of behaviour being exhibited and so it’s very difficult, we tend to find in these situations, to come up with this corroborative, this additional evidence in support of the allegation.

Ian Hull: Absolutely. And because it’s so difficult though, it’s also a non-starter if you don’t have it in many cases. And that’s because the Courts have sat back and said, if you’re going to allege that certain things were said by someone who is now dead, you have to source that beyond your own evidence. You have to buff that up. You can’t just say that, you can’t speak for the dead so to speak. And that is really, which is a great old common law tradition, and evidentiary expectation, that you corroborate. When you’re going to put words in the mouth of a dead person, you have to corroborate it.

So, that’s really, I think, the core spin in terms of the evidence and in terms of the expectations of the Courts with undue influence. But the last point I was going to say in terms of the process here, and these are, as we talk about these legal issues and we’re going to move on to some of the other ones briefly after this, is that really, typically, an estate challenge, a Will challenge, you’re going to look to lack of testamentary capacity and you’re going to look to undue influence. And at the outset, almost always you’re going to allege both or both are going to be alleged against you. But the trick is, and the strategy is, is when do you let go? And do you let go, I mean we talked about it for cost consequences, but with undue influence, you want to, I tell our clients, we have to monitor that issue on a regular, regular basis. Because there’s always the chance if you let go, you’re not going to get stung like a bee by having alleged it. Because it’s not such a terrible thing to suggest because it’s one of the four or five cornerstone issues in a Will challenge.

Suzana Popovic-Montag: And I guess, Ian, just in terms of winding up, just one thing I think we should make mention of the fact is that even though there are these traditional five grounds of challenging a Will, not all five have to be present in every case. And in most cases they’re not. And you may just have a Will challenge based simply on undue influence or simply on lack of testamentary capacity or a Will not having been properly executed. So these are not things that have to be found altogether, they’re mutually exclusive. They can, however, be joined in a claim for a challenge to a Will.

Ian Hull: So if we’re ready, from a strategy standpoint, we want to maybe put one, two, three or four out on the table, but also be mindful of the fact that, while you may have a right to investigate those circumstances, you may not want to hang on to that allegation forever.

So, I think from that standpoint, before we cover off one of the last issues, and that is the question of undue, I mean the lack of due execution and then some of the corporate machinations in a corporate context of how these Will challenges go, I just want to say that, my last comment is on the question of fraud. As we said before, it really is not worthy of a ton of discussion. It’s just not typically alleged. But in our next podcast, we’ll start with that issue just because of the one rare occasion when it’s alleged, it can be dealt with on a very, fairly pinpointed and sophisticated basis which we’re going to talk a little bit about in our next podcast, and that’s when we have forged Wills. So thank you very much, Suzana.

Suzana Popovic-Montag: Thanks to you, too, Ian. And to all of you who are listening and watching us by video podcast, a quick reminder that if you have any comments and you’d like to share them with us, we’d certainly appreciate them. Feel free to call us at 206-457-1985.

Ian Hull: And of course, e-mail at hullandhull@gmail.com.

Suzana Popovic-Montag: Thanks, Ian.

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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Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Fraud, Hull and Hull, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates and Succession Planning, Show notes, Suzana Popovic-Montag, Undue Influence, Will Challenge, ian hull, will

Will Challenge Litigation - Part 4 - Hull on Estate and Succession Planning Video Podcast #129

Posted on September 10, 2008 by Hull and Hull LLP

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

They continue to discuss the value of the discovery process and intense investigation. The goal is to get to the mediation process as soon as possible. New evidence may lead to the next stage: the pre-trial. Ian and Suzana talk about the pre-trial process and what you can expect during this stage.

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 4 - Hull on Estate and Succession Planning

Posted on September 9, 2008 by Hull and Hull LLP

Listen to Will Challenge Litigation Part 4

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

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 4 - Hull on Estate and Succession Planning - Podcast #129

Posted on September 9, 2008 by Hull & Hull LLP

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening to Episode #129 of our podcast on Tuesday, September 9^th, 2008.

Ian Hull: Hi, Suzana.

Suzana Popovic-Montag: Hello Ian.

Ian Hull: So we’ve swiftly moved out of the summer into the early Fall and we’re going to continue to work through this Will challenge discussion and the process itself. In our last podcast, we talked about the concept of when we will go to discoveries and when we will go to mediation, what mediation is, what are discoveries. And working from our flowchart, I think it’s worth emphasizing the intense investigation stage is so crucial. If we can get a good flow of information from obtaining a good, broadly comprehensive order for directions, and we can get the three corners of a law suit and a Will challenge, get the lawyer’s notes, assess it, analyze it, depending on whether you’re defending or challenging the Will. The second part, medicals, get as much of the medicals as possible. And the third component, chase down the lay witness evidence. Chase down the witnesses, what the neighbours and friends and priests and so forth are going to say.

So, if you can do that, and you can really, this is a bit of a heavy loaded stage in the law suit. This intense investigation is where this branches out into really settlement, all out war, how we’re going to manipulate the process in that sense. And that’s why it is such an important question: Do you go to mediation or do you go to discoveries? The right cases you go to discoveries or depositions right away, because what has come out of this intensive investigation are really good questions that you want to explore. And an easy example is when your case is very light on medical evidence and lawyer’s notes. The lawyers are saying, yes, say you’re challenging. The lawyers are saying, yeah the deceased knew what he was doing. And the medical evidence is light, because the deceased, although you think was completely out of it, wasn’t someone who went to doctors and just historically didn’t have that kind of record, that third party record. But, the third party witnesses, friends and neighbours who he went to church with, and those kinds of things, you’re really confident in challenging this Will, will all support you.

So one of the tactical moves you might consider then is to go to discoveries in the situation like that where you need to really develop your case. Because there’s two ways you develop your case: 1) through third party evidence, which I’m talking about, doctors and lawyers, and they kind of fall into place; and 2) from others and yourself.

Suzana Popovic-Montag: Now maybe, Ian, you could just spend a moment and explain to us why a discovery process is different, or what additional information you could try to get from lay witnesses from just perhaps interviewing these individuals that you’re suggesting.

Ian Hull: Well I think it’s a good point, and I’m not sure I can. I mean I think the interview process is probably as comprehensive as I need. What I’m thinking of is that when I move from the intense investigation and I decide to go to discoveries, it’s because I need to go, I need to take a real run at the challenger or the propounder, and I have a whole pocket full of evidence in contradiction to their position. So that maybe I rattle the challenger or maybe I don’t, but I’ll have taken that active step to really do a bit of a strategic shake-down.

Suzana Popovic-Montag: And from a lawyer’s perspective, and one of the things that discoveries really helps us with, whether we’re discovering the other side or our client is being discovered, is assessing how that individual is going to act as a witness in the actual trial. And there’s a lot of value that can come out of this whole process if you can see how your person stands up under, you know, the bright lights of the camera, so to speak.

Ian Hull: That’s good. So, keeping in the bright lights, my personal view is, discoveries is a low percentage game in most cases, but we didn’t want to sort of gloss over it. We don’t want to sort of pretend that this can be ignored and should be ignored. It is an important either tactical or evidentiary stage in the process in the right case. But, if you want to come back to what is, I think, the more effective practice, that is get to mediation as soon as possible. Because these cases are more often about emotions than they are about definitive facts, and as we’ve said before in podcasts, we’re never going to know the answer, the true, true answer. And mediation offers us such a tremendous cost-effective way to get to the nub of the case quickly and efficiently.

But let’s keep on with the process because presume we don’t pull it off. We don’t settle this case or the discoveries bring out great new evidence that is going to affect this case and we’re going to keep moving forward. The next stage certainly in Ontario, it’s required, and almost every jurisdiction that certainly I have ever been involved with insists on it, is a pre-trial.

Suzana Popovic-Montag: And what a pre-trial is, is an actual meeting where the parties meet with a judge, a pre-trial judge, who’s going to maybe once again try to settle this matter, not quite as in the mediation format, but certainly in that kind of an instructure without as much formality as you would have at a trial. So this individual is going to hear the parties, he’s going to read briefs that are presented, he’s going to meet the individuals and then assess the likelihood that one side or the other is going to win.

Ian Hull: So this pre-trial judge is, the importance of this is that you’re often looking to that person to give you their gut call. Now they won’t have had a chance to hear all of the evidence, but they’ll have read the brief, they’ll understand the case, they’ll have their own experience because they’ve sat on the bench or they practiced law and now are sitting on the bench, they have their own experience in terms of likelihood of success. And it can be really effective if we’ve got a good interaction with a judge that’s prepared to give, sort of, their views in that regard.

Suzana Popovic-Montag: And the pre-trial process really underscores how important the system itself believes that the parties try to settle their own case. Because in a Will challenge we know, Ian, that when it gets to trial there’s going to be one winner and one loser. And at the end of the day with cost consequences factored in there, you know, we even wonder if the winner is, in fact, a winner. So the fact that there’s a requirement for pre-trial and in many jurisdictions also a requirement for mandatory mediation makes us realize that this probably is the best way to try to solve the matter if, in fact, it can be. If not, then of course, we can move on to the next stage.

Ian Hull: And the next two stages we’re going to talk about fairly briefly today, because, one of them in and of itself probably is its own podcast. The next stage of course, is if you don’t settle it, is you go to trial, where you get your day or days typically in Court, in front of a judge. In Ontario, they’re typically in front of just a judge. We don’t have juries with Will challenge cases, the statute actually essentially prohibits it. But, in lots of jurisdictions there’s also Will challenges with juries itself. So we have the trial itself where we get witness in the witness’ boxes and doing all of the things that are normally done on the typical law and order kind of style trial. So there’s no magic to the trial itself, but we’re going to talk in another podcast about how we get ready for trials, for two reasons. One is that it’s helpful to talk about what you have to do but secondly, get another sense of something that is overriding this whole thing and that is, the big terrible word called costs. And the costs of all of this process can’t be ignored. So the trial obviously is, we’re into having created tremendous costs and tremendous costs to complete. So the last stage…

Suzana Popovic-Montag: And I think just to end on that, Ian, the last stage is the appeal process, because even though you’ve gone through the trial, you’ve incurred these tremendous costs that Ian just mentioned, there’s no guarantee that that’s the end of the process, because the losing side can always have the option of choosing to appeal. And here in Ontario, there’s two levels of appeal, you can appeal to the Divisional Court, sometimes you’re required to appeal directly to the Court of Appeal, and then of course if the matter is appealed, it’s heard and that result is not liked, the ultimate remedy is to appeal to the Supreme Court of Canada.

Ian Hull: All of which is delay, costs, all of it, really difficult things that you have to suffer through with litigation. But, let’s end on a happy note. That’s the process and we like to go through this with our clients so people know from start to finish generally what is going to happen. So, thanks very much, Suzana.

Suzana Popovic-Montag: Thanks to you too, Ian.

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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Will Challenge Litigation - Part 3 - Hull on Estate and Succession Planning

Posted on September 2, 2008 by Hull and Hull LLP

Listen to Will Challenge Litigation - Part 3

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 what happens during the Discovery process and explore what Mediation is and how it works. Will challenge proceedings can benefit greatly from facilitation during the litigation process.

To see the video version of this podcast, you can also download it from iTunes or watch it on YouTube on the Hull and Hull channel: http://www.youtube.com/HullandHullLLP

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.

Tags: PODCASTS / AUDIO, PODCASTS / TRANSCRIBED, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates and Succession Planning, Litigation, Mediation, Show notes, Suzana Popovic-Montag, Will Challenge, Wills, discovery, ian hull

Will Challenge Litigation - Part 1 - Hull on Estate and Succession Planning

Posted on August 19, 2008 by Hull and Hull LLP

Listen to Will Challenge Litigation - Part 1

This week on Hull and Estates, Ian and Suzana kick off their new video format.This podcast is an audio version of the video podcast that is available on YouTube here: http://www.youtube.com/watch?v=udEcTpLFIkk

This week's episode also marks the beginning of a new segment that tackles Will Challenge Litigation step-by-step.

Comments? Send us an email at hullandhull@gmail.com, call us on the comment line at 206-457-1985, or leave us a comment on the Hull on Estate and Succession Planning blog.

Will Challenge Litigation - Part I - Hull on Estate and Succession Planning

Posted on August 19, 2008 by Hull & Hull LLP

Suzana Popovic-Montag: Hi, and welcome to Hull on Estate and Succession Planning. You’re listening to Episode #127 of our podcast on Tuesday, August 26^th, 2008.

Ian Hull: Hi, Suzana.

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

Ian Hull: I’m great.

Suzana Popovic-Montag: That’s good.

Ian Hull: I’m very excited about our new format. This is our first video podcast. Now for those of you who enjoy listening to us on the audio, that’s still the same. iTunes is the same, nothing’s changed but we’re allowing to engage a little differently and a little more comprehensively. We’ve got some YouTube feeds that we want to encourage you to go to. Links to all of the YouTube feeds are on hullandhull.com and please feel free to give us any phone-in feedback at 206-457-1985.

Suzana Popovic-Montag: Or you can feel free to visit our webpage at hullandhull on the web and to leave us any comments or questions, concerns you might have. And please, let us know what you think about this new format of ours as well.

Ian Hull: We’re really excited about this and as I say, we’re going to have this entirely seamless so it won’t really matter how you’re coming to us, whether you’re video or audio. What we thought we’d like to do is step back a little bit from, we’ve had a great series on administering an estate and how to function as an executor. Now we’re going to step back and go into our own mini-series on challenging Wills. And what we thought we’d do is we’d start off by looking at this from the chair of the client, so to speak. When someone comes to see us, our practice is trust, estate and capacity litigation. That’s our sweet spot. That’s where we’re doing most of our day-to-day work. So we’re dealing with Will challenges on a regular basis and it’s a big, big part of our practice. So we thought we’d talk about how and what you can expect in a Will challenge. So first of all, Suzana, what are we talking about when we say Will challenge?

Suzana Popovic-Montag: Well, Ian, what we’re talking about in this situation is when you’ve got someone who’s typically the client is someone who’s been cut out of a Will. And so they’re coming to us because they say, you know, during mom or dad’s lifetime, I had expected that I’d be in the Will, they said I’d be provided for and suddenly they’ve passed away and I’ve discovered I’m getting nothing out of this estate, or, I’m getting less than I had expected out of this estate. And these situations are the ones that we talk about typically in these scenarios.

Ian Hull: So, they’ve either got cut out of the Will or you’re acting for someone defending the Will. So that’s sort of two perspectives that come into play. Now for a little shameless self-promotion, we’ve got our book “Advising Families on Succession Planning: The High Price of Not Talking”, and this book, which you can get through our webpage, is really user friendly, explaining some of the core concepts, so there’s a good benchmark there.

But today we’re also adding to our podcast series on the video side of course, a little bit of new technology at smarttech.com is the Smart Board. And we’ve got this at Hull and Hull, and it’s a terrific tool, highly recommended and we’re going to be using it today on the video feed.

So, we’re just stepping back now starting with the Will challenge itself. The first thing we’re going to do when we get to see a client who comes in and says, I’m terribly angry about the fact that I’m not in my dad’s Will or, I’m terribly angry that my sister is challenging my dad’s Will, his wishes, that’s what he wanted, I’m here to defend it. Hull and Hull, what can you do to make that happen? The first thing we’re going to say to them is okay, take a deep breath, let’s look at the lay of the land. And an important part of the lay of the land and a little homework you can do to save yourself some time and energy when you’re coming to see your lawyer about this if you’re looking into this kind of a problem, is make sure you know who’s involved. And we call it the family tree. And our first question is, who’s mom? Okay, we’ve got Betty and we’ve got Tom, the dad. And maybe there’s a second marriage over here. Tom, after Betty predeceased Tom, Tom ended up marrying Jane and they had three kids as well. And we’ll want to walk through that. And then of course, Betty and Tom from their first marriage, how many kids did they have? And they had one, two and three kids here, and then grandkids.

Now we don’t want to underestimate the importance of making sure that you’ve got the lay of the land straight right from the beginning because if we don’t know that at the start, it creates all sorts of other problems at the other end of the law suit. And interestingly enough, Suzana, why is it that we’re going down to this level as well? When I say this level, the grandkids, why do I even care about that?

Suzana Popovic-Montag: Well the reason for that is because we want to be put in a position where we know everyone who’s involved. And so when you get to the grandkids, they’re typically minors, people who are under the age of majority in whatever jurisdiction you’re actually from. And so in these situations, it’s particularly important to know their dates of birth so that we can say how old they are in addition to who they are in terms of ultimately determining everyone who has a financial interest in the estate. And Ian, you can explain a little bit about what a financial interest means in these circumstances.

Ian Hull: For sure. And what we’re going to get to on our next page, we’re going to talk about is the background information to help us figure out who’s got financial interest. Because financial interest is one of the most significant questions. It’s a legal question. Who’s got a look in here? Who has the right to be involved in this law suit? Who has jurisdiction to be involved? I mean you can’t have the Prime Minister of Canada challenging every Will. You have to have some sort of direct link. And that direct link, with a lot of people they misunderstand and they don’t take advantage of some of the different angles and some of the nuances. So we sit down and we say, as we say, we get the family tree straight and then we sit down and say who else could have a financial interest? And we talked about a second ago, was this idea of a second marriage. Obviously that’s a financial interest that the second wife would have. But maybe not so obvious would be a girlfriend who may or may not have been around full-time, maybe is a girlfriend, maybe isn’t, maybe is a spouse, maybe isn’t. So you start to really drill down and work through that whole question of who should be at the table. Because we started off earlier talking about the family tree because if you don’t have everyone at the table from the get-go in these law suits, you create tremendous problems at the other end or as you work through it.

Suzana Popovic-Montag: And the reality is that not only family members are provided for in Wills. There may be other individuals who have been named as beneficiaries of an estate who are not family members and so we want to get that information from our clients so that they, too, can be at this table, as Ian says, for the purposes of dealing with the actual Will challenge.

Ian Hull: So our second screen that we’ve got up next is, it’s a blank screen that I’ve written a little bit on, but it’s Background. And you’d be surprised at how important a background is. And often when we see clients we want them to really sort of download some of the history, because the history will help us play out what some of the legal issues that are going to be involved. We’re going to talk about, and we probably won’t get into it today, but some of the core legal issues. But we want to focus on the background. We do actually want to know about the family and about the person who’s passed away because that will help us crystallize where we start, what direction we take in the law suit.

So, we’ve got a couple of pages on Purpose on our Smart Board here, set aside for background information. After that though, after we’ve gone through the background, the next core step that we want to really make sure when we’re setting our table, we’ve got our knives and forks out, we’re getting our plates out now. We need to know what Wills are there. And when we say Wills, what are we talking about, Suzana?

Suzana Popovic-Montag: Well, we’re talking about in every jurisdiction there’s a different definition of what a Will is, but for the most part, we’re talking about someone who has put their testamentary wishes, their dying wishes in writing somehow on paper. And so the idea is to determine what is a valid testamentary document, what is a valid Will, so that we can determine if, in fact, the Will that’s brought to us is being challenged and we’re successful in that challenge, for instance, what happens to the estate? Then typically we’re looking at a prior Will, so we want to determine as much as possible what the Wills are that are out there, who’s provided for in each particular Will, because again, those particular individuals have a financial interest in the estate. And then we take it to the next level and determine whether or not those documents are actually valid testamentary documents.

Ian Hull: Alright. So we’ve got a good sense that what we’ve got to do here and what our first step here is we’re going to want to do is really focus on testamentary documents and Wills and what we do with them because that’s the starting point of the whole law suit.

Alright, so I think we’ve got a good introduction to the concept. As we say, this is going to be a mini-series on Will challenge and what we can expect and not expect when you get involved. So I want to thank Suzana because this is our first video feed that we’re trying out of Hull on Estate and Succession Planning. And please, feel free to e-mail us at hullandhull@gmail.com.

Suzana Popovic-Montag: Or of course feel free to call us at 206-457-1985.

Ian Hull: Thanks very much, Suzana.

Suzana Popovic-Montag: Thanks Ian.

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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Royal Wills: Privacy versus Transparency

Posted on February 15, 2008 by Hull and Hull LLP

Robert Brown claims to be the unacknowledged “love child” of Queen’s Elizabeth’s late sister, Princess Margaret. In his quest to prove his claim, he has sought access to the secret Royal Wills of Princess Margaret and the Queen Mother.

In 2002, shortly before the deaths of Princess Margaret and the Queen Mother, lawyers for the Royal Family, the British Treasury, and the Attorney General met with England’s highest ranking family judge seeking a practice direction to codify the century-long convention that Royal Wills be kept sealed from the public. The Order was passed and the “secret pact” was not made known to the public or Parliament.

Mr. Brown sought to have the Wills unsealed in family court but his case was struck down as vexatious and baseless. Mr. Brown sought leave to appeal and the court of appeal granted Mr. Brown leave and found that he was entitled to a hearing of his claim to have the Wills inspected. Despite calling his claim to be Princess Margaret's son “irrational and scandalous”, Lord Chief Justice Lord Phillips found that the public interest outweighed the Royal family’s right to privacy and called the pact unconstitutional.

News of the “secret pact” resulted in an outcry in the British media and calls for transparency within the Royal family. Mr. Brown’s lawyer submitted that members of the Royal family who receive national assets should have their Wills inspected by the public to ensure those assets are not mixed with personal property. If Mr. Brown wins, he will overturn the long standing convention that Royal Wills be kept sealed; a convention started in 1911 by Queen Mary to seal the will of her brother, Prince William of Teck and prevent a Royal scandal.

You never know who is going to change the law.

Have a great (long) weekend,

Diane Vieira

Tags: Estate & Trust, Mother, Princess Margaret, Queen, Robert Brown, Royal family, Will Challenge, Wills, estate law blog, monarchy, royal wills

Experts in Estate Matters - Hull on Estates #94

Posted on January 22, 2008 by Hull and Hull LLP

Listen to Experts in Estate Matters.

This week on Hull on Estates, Craig Vander Zee and Sarah Fitzpatrick discuss expert evidence in estate matters. In this episode they outline circumstances when one should use expert evidence, different types of experts, timing of reports, limitations of experts and the court appointed expert.

Experts in Estate Matters - Hull on Estates Podcast #94

Posted on January 22^nd, 2008 by Hull & Hull LLP

Sarah Fitzpatrick: Hi and welcome to Hull on Estates. You are listening to Episode #94 of our podcast on Tuesday, January 22^nd, 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.

Craig Vander Zee: How are you today Sarah?

Sarah Fitzpatrick: I’m fine, thanks Craig. How are you?

Craig Vander Zee: Good. It’s Craig Vander Zee and Sarah Fitzpatrick is with me today. As you well know, I’ve been podcasting with Paul Trudelle the last couple of times, but it is my pleasure, today, to be podcasting with Sarah.

Sarah Fitzpatrick: It’s nice to be here, Craig.

Craig Vander Zee: Have you had a happy new year so far?

Sarah Fitzpatrick: I’ve had a great new year, it’s been busy.

Craig Vander Zee: Yeah?

Sarah Fitzpatrick: But very nice, how about you?

Craig Vander Zee: Yeah it’s been good. Of course, with hockey and my little guys’ playoffs coming up, it gets a bit busy but it’s fantastic to watch them play.

Sarah Fitzpatrick: Excellent.

Craig Vander Zee: Sarah, today I thought that we would touch upon the topic of expert evidence in the context of an estate proceeding. And there is certainly a bunch of topics that you can deal with. I think for today we won’t touch upon selecting an expert or the expert report itself or perhaps an examination-in-chief or the cross examination of the expert. Maybe today we can focus on issues dealing with perhaps the different kind of experts and the discovery and the timing for the provision of the expert report.

Sarah Fitzpatrick: That’s right, and I think perhaps we could start by talking about the circumstances when you would consider using expert evidence.

Craig Vander Zee: Certainly there are a number of different kinds of experts that could be used in an estate context, and again, you know, we’re dealing with different types of claims. They could be passing of accounts in the context of a trust, it could be in the context of an estate, it could be a dependant support claim, it could be a will challenge or other types of estate and trust related proceedings. It could be a guardianship application and there’s medical experts that are required. So there are a number and wide range of experts that you could have. But perhaps we could comment on a couple of them in the context of focusing on assets. And certainly you might have someone assess whether investments in an estate or trust were handled prudently, assess the performance of an investment portfolio, the management of assets in general, evaluation of a current asset. Or perhaps you’re unravelling a family company that was used as a family bank, again in the context of an estate passing of accounts. And there are certainly others.

Sarah Fitzpatrick: Right. That’s right Craig. Some others as well might be the income potential of an asset, the invested rate of return of specific assets. There can be tax issues as well as forensic accounting issues to consider.

Craig Vander Zee: And again, we’re not leaving out the need in certain types of proceedings such as a will challenge, where capacity is in dispute, of medical experts, or psychiatric experts, to deal with the issues in those cases.

Sarah Fitzpatrick: That’s right.

Craig Vander Zee: Now when you do have an expert, it’s critical that you consider the timing for retaining the expert. And part of the reason for that being a factor in your proceeding is that you have to be mindful as to the disclosure requirements at an Examination for Discovery, if there’s going to be Examinations for Discovery in your particular proceeding. And Rule 31.06 of the Rules of Civil Procedure deals with that very aspect.

Sarah Fitzpatrick: They have been defined, Craig, as the findings, opinions and conclusions. It includes such things as notes, data, research, calculations and documents that can be used by the experts to prepare the report.

Craig Vander Zee: Right and when you’re considering that, sort of going back to what the disclosure could be, it’s the findings, opinions and conclusions of that expert engaged by or on behalf of your client that relate to the issue, okay. And knowing what findings, opinions and conclusions might mean, you would want to know whether it’s going to be an obligation that you provide those to the other side. Because if you have an expert report that you don’t intend to rely on, you don’t want to disclose that to the other side. So the Rules…if you can help it at all, and certainly within the confines of the rules. So the Rules also allow you not to disclose the information, that is, not to disclose findings, opinions and conclusions, where the findings, opinions and conclusions of the expert were formed in preparation of contemplated litigation or pending litigation and…and that’s the key part…and you undertake not to call the witness at trial. So, practically speaking, your client is getting examined, and as counsel, you would be there with them at the examination and you’re being asked these questions regarding the expert. And typically, and certainly it’s my practice, that the client would not be answering questions on the expert evidence, that I would be dealing with those questions. And if there was an expert report that we were relying on and we were bound by the Rules to give the findings, opinions and conclusions, then we would deal with that appropriately. But if we weren’t, that’s when we would also have to undertake not to call that witness at trial.

Sarah Fitzpatrick: That’s right Craig.

Craig Vander Zee: Having considered how the expert’s findings, opinions and conclusions might be dealt with at a discovery, and how you might be able to avoid, within the confines of the Rules, of having to reveal or disclose those findings, opinions and conclusions if you don’t have any intention of calling them as a witness, it’s important to consider the service requirements for an expert report because it’s critical that they be delivered in the time provided by the Rules.

Sarah Fitzpatrick: That’s right. So when thinking about service requirements, it is Rule 53 of the Rules of Civil Procedure that deals with this. And specifically, that Rule provides that you have 90 days before the commencement of trial for the person serving the report to serve that on the other side. And there are other time restrictions as well. The person responding to that expert report then has 60 days before the commencement of trial to serve on the other party their expert report.

Craig Vander Zee: Essentially it breaks down into really three critical time periods, as you’ve mentioned, Sarah. And really the first one is 90 days before the commencement of a trial, if you’re serving your report. And then there’s the responding report, as you mentioned, 60 days, at least, before.

Sarah Fitzpatrick: That’s right.

Craig Vander Zee: And then 30 days if you’re doing a reply report. And where it’s critical is that if you miss these time periods as a matter of right, you may find yourself not being in a position of controlling whether the expert report gets in. And by that, I mean if you miss these time periods, the Rules indicate that, subject to another Rule, that is, that grants leave to allow the report to be filed, you may not file that report. So you move from a situation where you have a right and can file the report, assuming that it’s a proper report. You go from a situation where you had a right to enter it, to a situation where you’re not allowed to enter it, unless the Court gives you leave or the other side consents. And if the other side were to consent then that would…then certainly the report would be able to go in. But if you find yourself in a situation where you’ve not complied with the Rules with respect to the service of the report, there is still hope. Rule 53.08 allows for the service of the report in situations where the Court grants leave. And the leave shall be granted on such terms as are just with an adjournment unless, and here’s the key, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial. So in most cases, those last two hurdles can be jumped. But in certain circumstances, perhaps if it was on the eve of trial or during trial that you wanted to have an expert report, you may find a situation where the judge is not prepared to do that. The one caveat with all of that is that the phrase “on terms that are just” usually means cost consequences. And so…but if you file an expert report outside of the time periods allowed, you may find that if the other party isn’t going to consent to it being admitted and filed with the Court…sorry, to allowing the expert report to be received and then having the expert called to trial, you may find yourself facing a cost award that would have to be explained to the client. And so that would obviously…is a situation you want to avoid in every circumstance, if possible.

Sarah Fitzpatrick: The practical matter you should also bear in mind when serving the expert report there are a few key considerations to include. You need to include the CV of the expert. The report should be signed by the expert and needs to include the experts name and address and well as his or her base of qualifications.

Craig Vander Zee: So now that we know when to serve the report and we know how it’s going to be dealt with in examination for discovery at least in terms of the scope, we should be mindful as to the number of experts at a trial.

Sarah Fitzpatrick: Right and they are actually limited to 3 on each side. If the party intends to call more than 3 it’s important to give notice of one’s intention to call more than those 3 that are allowed.

Craig Vander Zee: Well that’s right and in section 12 of the Ontario Evidence Act covers that off, Sarah. And having said that though, there is some debate whether the limitation of 3 witnesses is in respect of 3 experts on the same issue, or 3 experts in total on each side. But as you said, to ensure that you, at least, can address the issue, you put the other side on notice. And if you’re certainly within the time periods, that is, if you’re delivering 3 reports and they are 6 months in advance of the trial, there is a better chance of being able to deal with the issue and trying to work it out, or at least have the issue dealt with before trial, so that you know what your situation is going into the trial, rather than leaving it to a time period when it’s perhaps not as practical to deal with the issues or may have cost consequences.

Sarah Fitzpatrick: Good point, Craig. One last thing that we would like to touch on today is the issue of the Court appointed expert.

Craig Vander Zee: Well, here’s a situation where the Court actually does the appointing of the expert, as the name to the Rule would indicate. It’s really 52.03 of the Rules of Civil Procedure. And what this Rule allows is on motion, or on the judge’s…motion by a party, or on the judge’s own initiative, the Court appoints an expert report in the situation. And it could be that each side has an expert on a matter, both seem to be equally qualified, perhaps even equal in terms of their experience and credibility, but have completely different findings. And maybe the Court wants another expert to come in and deal with it. It could very well be that the expert reports in a particular case are unsatisfactory. Maybe they don’t address all the issues and the judge feels rather than having the parties go out and agree to get further expert reports, that it’s just easier for the Court to take charge of the issue. And what the Court would typically do is make an order that would deal with the content of that report in a sense of what the issue is going to be. But it would also include how the expert is going to get paid, you know, with respect to the preparation of the report, the daily attendance in Court for that expert, who should bear the cost of the report itself and would also touch upon typically directions regarding the delivery of the report to the parties, and the potential cross-examination of that expert by those parties. And so the order wouldn’t be in a vacuum, it would be in a situation that would have directions with it so that there is a clear understanding as to what that expert is supposed to do, what he or she is to be paid and the availability of that expert for cross- examination by the parties so they have ample opportunity before going into trial of testing the evidence of that expert.

And I think with that, we’ve ended our discussion today, Sarah. I think next time we’ll touch upon, as I mentioned at the beginning of the podcast today, what you might consider in selecting an expert, the report itself, and if we have time during that podcast, items that you might consider when cross-examining or doing an examination-in-chief of the expert. I can say that it has been a real pleasure podcasting with you today. I wouldn’t know it, that this was your very first podcast. And I look forward to our next.

Sarah Fitzpatrick: Well thanks Craig, I look forward to our next one as well.

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.

/mem

Tags: PODCASTS / AUDIO, rule 53, Hull on Estates, Rules of Civil Procedure, Will Challenge, cost consequences, evidence, experts, guardianship application, invested rate of return, non-disclosure, rule 3106, rule 5203, rule 5308

Limitation Periods and Will Challenges

Posted on November 14, 2007 by Hull and Hull LLP

There has been some controversy as to whether a Will challenge is subject to a limitation period under the new Limitations Act, 2002, which came into force January 1, 2004.

In her excellent paper presented at the 10^th Annual Estates and Trusts Summit last week, Anne Werker states that in her view no limitation period applies to Will challenges. Not even the absolute 15 year limitation period set out in the Limitations Act, 2002 applies. In other words, a Will challenge is not statute-barred for being out of time. Keep in mind that the Limitations Act, 2002 was hailed at the time as bringing under one roof a myriad of limitation periods and imposing an almost universal 2 year limitation period (subject only to reasonable discoverability).

According to Anne, the Limitations Act, 2002 will not bar an application for a judicial declaration regarding the validity of the Will where, for example, there are grounds discovered subsequent to the issuing of a certificate of appointment of estate trustee, such as a later Will, or evidence that brings the Will into question.

However, Anne does acknowledge that the return of an issued certificate of appointment of estate trustee is not automatic when a Will challenge is launched after a certificate of appointment has been issued. A party may rely on equitable relief such as laches (failure to act) or acquisition (concurrence). As Anne points out in her paper:

“When a Certificate of Appointment of Estate Trustee has already been issued, on notice to the interested parties, and if the grounds to challenge the Will are weak, unexplained delay will be a significant factor in whether the Court exercises discretion to allow a Will challenge to proceed.”

No doubt, the courts will eventually be asked to consider limitation periods and Will challenges, but in the interim Anne’s paper has made a valuable contribution to the debate.

À demain

Justin

Tags: Archived BLOG POSTS - Hull on Estates, Estate Litigation, Limitation Periods, Will Challenge, estate law

Getting the Right Evidence

Posted on July 16, 2007 by Hull and Hull LLP

Over the next week, I will blog on a variety of topics within the estate and and trust world. I will canvas notable case law as well as draw on my recent experience. My first topic deals with evidence.

It is crucial when litigating to amass the right evidence. A great deal of thought usually goes into deciding whether to litigate, but once that decision has been made, the right evidence has to be put forward in order to win or to facilitate a favourable settlement. Much of what litigators now do is by way of application so affidavit evidence is key. The beauty of affidavit evidence is that it allows the lawyer time to draft or finesse the evidence - not change it, but just present it in its most persuasive format.

When dealing with a will challenge and capacity, the notes of the solicitor who drew up the will are obviously critical, as is any medical evidence particularly from a family doctor. In a guardianship fight, medical evidence is again key, but so is evidence from family or friends. However, when deciding what evidence to submit, a careful litigator will take the time to decide what evidence is required over and above the usual. In other words, what avenues are worth exploring that may reveal the unexpected. Is there some person who may be able to add fresh evidence that will make the difference and carry the day?

In a recent guardianship case that I was involved with, the evidence of two neighbours turned out to be critical. The neighbours were able to comment on the slow deterioration of the incapable. As family members had applied to the court to be appointed guardians, the neighbour were also able to comment on whether the family members visited and how often. The neighbours, who still kept in touch with the incapable, were also able speak to the wishes of the incapable when it came to who should look after the incapable. A caregiver at a nursing home was also in a position to comment on the mental state of the incapable and, in fact, assisted a doctor who was retained to prepare a retrospective assessment. What the neighbours and the caregiver brought to the table was the fact that their evidence was credible and independent. In other words, they had no particular stake, one way or the other, in the outcome of the litigation. They were simply interested in doing what was best for the incapable. When it comes to evidence from outside or third parties, their evidence will likely be believed because it is seen as untainted. As a result, every effort should be made to get evidence from outside or third parties and from sources that may be out of the ordinary.

Thanks for reading.

Justin

Tags: Archived BLOG POSTS - Hull on Estates, Estate Litigation, Trusts, Will Challenge, Wills, blog", capacity, estate, guardianship', law, toronto

To The Victor Go the Spoils?

Posted on February 22, 2007 by Hull and Hull LLP

The outcome in most types of litigation is pretty simple – you lose, you pay. How much you pay usually depends on various factors, including how the parties conducted themselves during the litigation, whether any offers to settle were exchanged and on what terms.

The unique thing about estate litigation, however, is that historically, regardless of whether you were triumphant or defeated, the estate often bore the expense of the proceeding.

As most estate lawyers already know, however, things are changing. One speaker at the Ontario Bar Association’s 2007 Trusts and Estates conference explained the following trends arising out of more recent court decisions:

• Will Challenge – when unjustified allegations are made against a defendant, the plaintiff may be ordered to pay the defendant’s costs

• Will Interpretation – when a Will does not need interpreting or when its provisions are not unclear, the party requesting its interpretation may be denied its costs

• Dependant Support Claim – successful claimants may have to bear their own costs when the court considers factors (similar to those applied in other litigation) that weigh in favour of such a result

• Passing of Accounts – when executors neglect or refuse to furnish accounts, fail to keep proper records or mismanage estate funds, they may be ordered to pay the costs of the successful beneficiaries

I am pleased to see such modifications to traditional cost principles, as in my view it will deter unfounded litigation being brought by those mistakenly of the view that the estate will foot the bill.

Until tomorrow,

Natalia Angelini

Tags: Archived BLOG POSTS - Hull on Estates, Dependant Support Claim, Passing of Accounts, Will Challenge, Will Intepretation

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