Law Times

Page 12 OctOber 24, 2016 • Law times www.lawtimesnews.com BY MICHAEL MCKIERNAN For Law Times O ntario legislators should consider fol- lowing B.C.'s lead by adopting a presump- tion of undue inf luence in will challenges, according to a leading estate litigator in this province. "It depends which side of a case you're arguing, but on bal- ance, I think a presumption of undue inf luence would be help- ful," says Justin de Vries, the principal at estates and trusts boutique de Vries Litigation LLP. "Families are complex things, with lots of moving pieces, and the law can be a bit of a strait- jacket. Maybe it needs to loosen slightly," he adds. In 2014, amendments to B.C.'s Wills, Estates and Succes- sion Act introduced a presump- tion of undue inf luence in cases where the person challenging the will could show that another person was "in a position where the potential for dependence or domination of the will-maker was present." The onus then shifts to the person defending the will to show that they did not exercise undue inf luence over the testator. Elsewhere in Canada, the burden of proof never shifts in challenges based on allegations of undue inf luence, leaving plaintiffs facing such a high bar to prove their case that de Vries has labelled it a "Herculean task." "It's extremely difficult to prove," de Vries says. "The big- gest problem is that the de- ceased has no voice. "They are dead, and there were no f lies on the wall to watch what was going on. In these cases, the deceased was of- ten isolated or cut off from their family, which makes it difficult to gather evidence." Lisa Haseley, a lawyer with Hull & Hull LLP in Toronto, says the task for plaintiffs is complicated by the fact that the law allows for beneficiaries to exert inf luence over testators during their lifetime, so long as their efforts fall short of co- ercion. "Part of the reason the threshold is so high is because, typically, the assertion of undue inf luence is made by a person who would likely benefit from the will being overturned," she says. "We always want to make sure that the testator's wishes are followed and observed." However, de Vries says any presumption could help to level the playing field for plaintiffs without needing to be "overly strong." "You should be able to rebut the presumption fairly easily, be- cause you want to avoid the dan- ger that you end up with a result that is not correct," he says. According to de Vries, plain- tiffs can often boost their case for undue inf luence by calling medical evidence about the sus- ceptibility of a particular testator to coercion. "That's usually one of the production orders we get early on," de Vries says. "Vulnerability to undue in- f luence grows as you age." LT FOCUS CHARITABLE ORGANIZATIONS " Thanks to the groundbreaking research, the care of Dr. Messner and the compassion of the whole team at The Princess Margaret, I'm here today." A gift left in your Will can save lives. If cancer is your cause, support one of the top 5 cancer research centres in the world. To learn more about planning your gift, call 416-946-2295 or email legacy@thepmcf.ca See Chris Taylor's story at www.thepmcf.ca " When you've had cancer, every day is a gift." -Chris Taylor Untitled-2 1 2015-10-20 2:27 PM the estate and the other residual beneficiaries. In substance, their dilatory conduct served to pro- tect their own interests, not those of the estate." Ondrej Sabo, a co-founder of Ledroit Law in London, act- ed for the trustees, and says he takes issue with the character- ization of his clients' actions. He says they did not appeal the judgment from the province's top court because they have run out of funds, but they maintain that they acted in good faith during the litigation. According to Sabo, many of the complaints about slow dis- closure related to events before the mother's death, some of them decades old. He says the spiral- ling cost of the litigation was a factor in the trustees' decision to settle the litigation on the merits, but he says they may have paid a price for giving up their right to challenge some of the "really nasty allegations" made against them by their siblings, none of which were proven in court. "Had they gone to trial, they might have been successful, but it would have eaten up the entire estate, so they compromised and settled," Sabo says. "If there is a lesson in all this, it would be to be very wary of settling es- tate litigation on the merits, and leaving the costs up to a judge." Sabo says judges are put in a difficult position when they are asked to weigh in on the issue of costs without being able to test the evidence in the underlying action. "They settled the merits for practical reasons, which was a compromise. I'm not sure the decision would have gone the same way if the evidence was put to the test, but that is the risk that was run," he says. According to Sabo, the case could put people off from acting as trustees in estates cases. "If I was a trustee, I might say I'm getting out of it, because the risk of having a costs award made against you is very worri- some," he says. Smith says he will use the case when talking trustee cli- ents through the risks that come with the job. "It's always good to have a decision from the appeal court. As lawyers, we're always inter- ested in costs decisions because it helps us inform clients about risk assessment," he says. "Basically, if the court sees any conduct on the part of a trustee that increases legal fees unneces- sarily, then they're going to pun- ish it. That's the main lesson to take out of the case." LT Continued from page 9 Case shows risks of being trustee Adopt presumption of undue influence: lawyer

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