Recent Cases


Schaefers Estate - Removing an Attorney for Property

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Nieweglowski Estate - Examining the Solicitor who drafted the Challenged Will

In Nieweglowski Estate, litigation had erupted over Mr. Nieweglowskis will and property that he had transferred before he died. The solicitor who had assisted Mr. Nieweglowski had already produced his files pursuant to an earlier court order. The solicitor was then subpoenaed to give evidence pursuant to Rule 39.03 (examination of a witness before the hearing of a pending motion or application). The solicitor attended at his examination, but refused to give evidence. The solicitor objected on the grounds that the prior order did not expressly provide for his examination. The examining party then sought a court order that the solicitor provide his evidence and that he personally pay the costs of the fruitless examination.

Justice Strathy of the Ontario Superior Court of Justice held that a solicitor was entitled to the protection of a court order before being examined as a witness pursuant to Rule 39.03. Justice Strathy stated that it was not unreasonable for the solicitor to insist upon a court order directing him to attend an examination before giving his evidence about privileged communications with a former client. Accordingly, Justice Strathy ordered that the solicitor be examined regarding matters that would otherwise be privileged or confidential. However, Justice Strathy refused to order costs against the solicitor in respect of the aborted examination.

For lawyers, when faced with a demand to produce their file and/or be examined, the first call to make is to LawPro (the lawyers indemnity insurer) who will provide you with counsel to guide you through the process and attend with you at your examination.


Henry Estate - Summary of Case

James Henry died on May 28, 2005. He had been ill with cancer for several years and had been given palliative care for approximately two months before his death. On May 12, 2005, he signed a will in which he left his estate to his second wife, Consolacion, if she survived him for 30 days, which she did. One of the deceased's adult children from his first marriage, Tyrone Henry, brought an action against Consolacion. The issues before the court were whether the deceased's will was null and void on the basis that the signature on the will was not the testator's, or on the basis that the deceased lacked testamentary capacity or by reason of undue influence on the part of Consolacion.

Justice Newbould of the Ontario Superior Court found that the signature on the will was the signature of the deceased. He accepted the evidence of the solicitor who drafted the will and his assistant that they witnessed the deceased signing the will. The plaintiff put forward no evidence to the contrary, other than his sister and brother's statements that the signature on the will was not their father's. Justice Newbould also rejected the plaintiff's attempt to introduce a report of a handwriting analyst, as it had never been served on the defendant, and the analyst was not able to give evidence.

Justice Newbould found that the deceased had testamentary capacity. The evidence clearly established that he understood and approved of the contents of the will. The court accepted the solicitor's evidence that, the day the he signed the will, the deceased was able to recite from memory the instructions he gave to his solicitor the previous day regarding what was to be included in the will. As well, the court accepted Consolacion's evidence that her husband was coherent and alert the day he signed the will.

Finally, Justice Newbould found that the plaintiff did not prove undue influence on the part of Consolacion: "there is simply no evidence of undue influence nor of any suspicious circumstances surrounding the instructions given by Mr. Henry or his execution of the Will."

As the self-represented plaintiff discovered in this case, will challenges can be very difficult to win. Litigants seeking to overturn a will need to be alert to exactly what evidence is required to prove their case.


Bessie Orfus Estate - Summary of Case

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Hix v. Ewachniuk

A U.S. Supreme Court judge once memorably remarked that he could not define obscenity but "I know it when I see it." The concept of undue influence in estate litigation is similarly elusive (although perhaps less polarizing a topic than obscenity and censorship!). Generally, a successful will challenge on the grounds of undue influence requires proof by the challenger on the balance of probabilities that the will was written as a result of coercion. But what does undue influence look like? And since undue influence is often exercised in private, what kind of evidence is required to prove its existence?

A recent decision of the British Columbia Court of Appeal, Hix v. Ewachniuk, suggests that a finding of undue influence is possible even where the evidence is circumstantial. In that case, Sophia Ewachniuk signed a will a couple of years prior to her death that was written by her son, Theodore (who was a former lawyer). The will essentially provided Sophia's two million dollar estate to her son, and left nothing to her two daughters. Her previous will divided her estate equally amongst her three children.

The daughters were successful in challenging the will. The trial judge found that although Theodore cared for his mother, he was also a domineering and aggressive person. Sophia, on the other hand, was very vulnerable and had become virtually dependant on Theodore in a way that he was able to profoundly influence her decisions.

The B.C. Court of Appeal upheld the trial judge's decision, noting that it was open to the trial judge to find that Theodore had exerted undue influence "not by threats or promises but by working on her over a period of time. She was in that way coerced into doing what she would not otherwise have done."

Undue influence in this particular case looks less like holding a gun to someone's head and more like being subjected to a cunning advertising campaign. Another judge hearing the case may have seen things differently. As with any will challenge, proceed to trial with caution.


Robinson Estate v. Robinson - Rectifying a Will based on a Testator's True Intentions

Robinson Estate v. Robinson tested the limits of the court's power to rectify a Will. The testator, Blanca, owned property in Spain, England and Canada. Blanca executed a Will in Spain dealing with her European property. A Canadian Will dealt with her Canadian property, which Blanca subsequently revised. The solicitor who revised the Will routinely added a clause revoking all prior Wills. Blanca approved and signed the revised Will. The solicitor was not told about the Spanish Will until after Blanca died. An application rectifying the revised Canadian Will by deleting the revocation clause was brought.

The applicants claimed that the revocation clause was a mistake and should be deleted. There was affidavit evidence that Blanca did not mean to revoke her Spanish Will. The respondent, Blanca's stepdaughter, took the position that the Canadian Will had already been probated and could no longer be rectified. Moreover, the language of the revocation clause was clear, unequivocal and approved by Blanca.

Based on the evidence tendered, the court acknowledged that Blanca never intended to revoke her Spanish Will and did not realize that the revocation clause did just that. However, the court declined to act. The court held that the equitable power of rectification was aimed mainly at preventing the defeat of testamentary intentions due to errors or omissions by the drafter of the Will. This case was not about a typographical error by the solicitor, the solicitor misunderstanding Blanca's instructions, or the failure to implement Blanca's instructions. The revised Canadian Will was drafted in accordance with Blanca's instructions. The court therefore refused to correct Blanca's mistaken belief about the legal effect of the words she had reviewed and approved. The revocation clause could not be deleted and the application was dismissed.

Other interesting points: The court also held that a grant of probate did not preclude an application to set aside probate so that the true intentions of the testator could prevail. Finally, and importantly, the court seemed to accept that a rectification application was subject to reasonable discoverability (i.e. two years from the date the claim was discovered, see section 4 of the Limitations Act 2002). This was not the case under the old limitations regime. (Robinson Estate v. Robinson has been appealed to the Ontario Court of Appeal. The appeal is scheduled to be heard in February 2011.)


 

 

http://www.canlii.org/en/sk/skqb/doc/2006/2006skqb288/2006skqb288.html