Law Times

Page 10 October 21, 2013 Law Times • Focus On Trusts and Estates Law Wills and estates litigation Decisions show need for greater attention to undue influence BY MICHAEL McKIERNAN For Law Times L awyers need to increase their sensitivity to potential undue influence when drafting testamentary documents as courts around the world widen their traditional view of the doctrine, according to a Toronto estates litigator. Undue influence remains notoriously difficult to prove in estates cases with the chief witness, apart from the alleged influencer, usually dead and corroborative evidence typically absent. "To allege it is tantamount to alleging fraud. It's a very serious allegation and if you don't prove it, obviously you have the cost consequences that go along with that," says Kimberly Whaley, principal at Whaley Estate Litigation in Toronto. However, Whaley says recent decisions in various jurisdictions show the way the courts approach undue influence cases is evolving. She points to Schrader v. Schrader, a recent landmark case out of Britain that involved two sons in a dispute over their mother's will. The High Court judge hearing the case made a finding of undue influence against one son without direct proof of coercion and instead relied on indirect factors such as the testator's vulnerability, the influencer's forceful personality, and the lack of evidence about why the mother would have disinherited her other son. And last year, in the case of Juzumas v. Baron, an Ontario Superior Court judge set aside a property transfer in a case where an elderly man had married his housekeeper in order to avoid going to a nursing home. The judge found there was a presumption of undue influence between them. "We've seen courts not opening the floodgates but looking at all the circumstances rather than just whether specific instances of coercion can be corroborated," says Whaley. As more will challenges come in, drafting solicitors will find their work coming under increased scrutiny and Whaley says they could even leave themselves open to negligence claims in the event they miss or ignore some obvious red flags for undue influence. "It'll be interesting to see, going forward, if the duty of care is widened on negligence," she says. "Drafting lawyers have to be alive to the possibility of undue influence." 'Drafting lawyers have to be alive to the possibility of undue influence,' says Kimberly Whaley. She says lawyers can help protect themselves with detailed file notes, including proper documentation of any suspicions. Toronto estate litigator Charles Ticker, who acts on will challenges and disputes, says "there's nothing more frustrating" to him than receiving a sparsely populated file from a drafting solicitor containing little more than a copy of the will. "It makes litigating the case more difficult and it makes things more difficult for the child who's not getting as much as their siblings because there's nothing to shed any light on why the parent did it," says Ticker. "The will drafter is there on the front line. If anything looks unusual, then they have to probe and ask a lot of questions. That will go a long way to preventing challenges." Ticker acknowledges it can be difficult for drafting solicitors to spot cases of undue influence but says where suspicions arise, it's best to speak with the testator alone and ask open-ended questions about the decisions. "Instead of saying, 'Who do you want to leave your estate to?' you ask, 'How did you decide to divide your estate this way?'" says Ticker. "Lawyers have to take the time to really interview their client." Another recent Ontario case, John Gironda v. Vito Gironda, underlines the continuing difficulty of proving undue influence. Unusually, the 92-yearold testatrix, Caterina Gironda, an Italian immigrant who's illiterate and can't speak English, was still alive at the time three of her four sons challenged her will on the grounds of incapacity and undue influence. However, she had developed a number of health problems by the time of the litigation, including a diagnosis of Alzheimer's disease, and the court found she no longer had the capacity to manage her property or personal care. Her three older sons wanted the court to invalidate her 2005 will, made within two years of her husband's death, that left her home to her youngest child, Vito. He had always lived there with his parents and had never worked. The older brothers also challenged changes to her powers of attorney, made at the same time, that placed Vito in charge of her property and personal care. In his June 21 judgment, Ontario Superior Court Justice Michael Penny laid out a nonexhaustive list of potential indicators of undue influence: • The testator is dependent on the beneficiary for emotional and physical needs. • The testator is socially isolated. • The testator has experienced recent family conflict. • The testator has experienced recent bereavement. • The testator has made a new will not consistent with prior ones. • The testator has made testamentary changes simultaneously with amendments to other legal documents such as powers of attorney. The older Gironda brothers argued all of the factors were present, but Penny didn't think that was enough to make a finding of undue influence. "I certainly agree that there are grounds for the  suspicion  of undue influence in these circumstances and that, particularly given the signs of some cognitive decline, careful probing of the circumstances surrounding the execution of these documents is warranted. It is not sufficient, however, merely to allege the possibility or suspicion of undue influence. There must be evidence to establish the presence of undue influence on a balance of probabilities," wrote Penny. The judge then went on to find Caterina had the capacity to make the 2005 changes to her will and powers of attorney despite contradictory evidence from Dr. Richard Shulman, an expert witness on the issue. Shulman's report expressed concerns about Caterina's understanding of the changes and the lack of support in prior wills for favouring Vito. Taken in combination with her age and vulnerability, he said he believed she lacked testamentary capacity. But Penny preferred the evidence of the lawyer who drafted the will for her and two doctors who saw her around the time she signed it, neither of whom conducted a formal capacity assessment. It made testamentary sense, Penny found, for Vito to get the house since he lived there and his brothers all had homes of their own. The lawyer, Penny noted, had also prepared Caterina's previous wills and met with her alone. He found her mentally alert and had received a letter from her family doctor vouching for her mental health. "The fact that he had no notes of his interview may not be an indication of best practices, but is hardly evidence that See Estates, page 13 Barristers and Solicitors Thomson Building 65 Queen Street West, Suite 1700 Toronto, Ontario M5H 2M5 Telephone : (416) 860 1057 Facsimile: (416) 367 2502 Practice restricted to ESTATE LITIGATION AND ADMINISTRATION, MENTAL INCAPACITY ISSUES AND ESTATE MEDIATION BRIAN A. SCHNURR FELICE C. KIRSH SANDRA R. SCHNURR www.lawtimesnews.com SchnurrKirsh_LT_Oct21_13.indd 1 JORDAN D. OELBAUM SENDER B. TATOR ELIZABETH A. BOZEK ROB LEVESQUE 13-10-16 11:12 AM

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