Law Times

Page 10 February 26, 2018 • Law Times www.lawtimesnews.com Judge calls for culture shift on consent motions BY MICHAEL MCKIERNAN For Law Times W ill challengers in Toronto could face a higher bar to obtain disclo- sure after an estates list judge called for a culture shift away from generic consent motions for directions that enable fish- ing expeditions by disgruntled beneficiaries. In Seepa v. Seepa, Ontario Superior Court Justice Freder- ick Myers initially declined to sign a consent order for direc- tions in a will challenge brought by the disinherited child of a testator, forcing both sides to duke it out on the merits and convince him there was some evidentiary basis for making the order. Myers' Sept. 11 decision says the case fits the typical scenario he sees over and over again on the estates list: The challenger gets less than hoped for from the will, particularly in comparison with another beneficiary — often someone who cared for or simply spent more time with the deceased. "This lets the disgruntled ap- plicant allege, virtually on that basis alone, that the caretaker beneficiary exercised undue in- f luence to induce the deceased to make an unfair distribution of the estate," the judge wrote. Boiler-plate consent orders routinely granted by the courts then "consign the parties to lengthy, intrusive, expensive documentary collection and in- vestigation proceedings that can last for the better part of a year or more," Myers continued. "One wonders whether, in the absence of evidence sup- porting the causes of action and a need for such extensive pro- cesses, there is good reason to subject not just the parties but all of the beneficiaries in these cases to the cost, delay and dis- tress of lengthy proceedings," he added. Although the case has yet to be cited in another decision, Al- exandra Manthorpe, an estates lawyer with Oakville, Ont. firm O'Connor MacLeod Hanna LLP, says the ruling has shaken up the practising bar. "I think it's a rallying call to other judges as well as a shot across the bow for estate litiga- tors, and it is certainly having a ripple effect. Lots of us are pay- ing attention and talking about it," Manthorpe says. "You can't just throw around terms like 'undue inf luence' and 'incapacity' without meet- ing some minimal evidentiary threshold." Danna Fichtenbaum, an estates litigator with Minden Gross LLP in Toronto, wel- comes the decision. "I think Justice Myers hit the nail on the head; something def- initely needed to change," she says. "The result of past practice was that trustees, estates and beneficiaries were being put to significant expense to disclose a mountain of evidence in the face of a claim that may have no legitimacy at all." According to Fichtenbaum, the collegial nature of the es- tates bar may have encouraged the use of one-size-fits-all dis- closure orders. "As estates lawyers, we often seek to get to the point and avoid FOCUS Danna Fichtenbaum says the collegial nature of the estates bar may have encour- aged the use of one-size-fits-all disclosure orders. See Ruling, page 11 Fresh Canadian legal news and analysis available on any device. Get More Online CanadianLawyerMag.com Untitled-4 1 2018-02-20 2:51 PM FULL DAY IN-CLASS & LIVE ONLINE ACCESS This annual conference gives executives and Corporate Commercial & Technology lawyers an opportunity to network and learn about the most recent and significant developments in Canadian and international Technology Law - all provided by leading practitioners. To inquire about registrations and group rates contact us at 416-609-5868 | Toll Free: 1-877-298-5868 Email: cpd.centre@thomsonreuters.com Please mention Tech Law Conference in the subject line. Powered 2018 TECHNOLOGY LAW SPRING FORUM MAY 28-29, 2018 CHAIRED BY Donald B. Johnston, Aird & Berlis LLP Natasha Ell Saunders, Vice President, Legal Affairs, TekSavvy Solutions Inc. Vantage Venues 150 King Street West, 16th Floor, Toronto ON, M5H 1J9 REGISTER NOW Save 10% before April 16, 2018 WWW.TECHLAW-CONFERENCE.CA Untitled-2 1 2018-02-21 2:49 PM

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