Kusch and Clavelle Contribute to CBA BarNotes

The most recent issue of the Canadian Bar Associations’s BarNotes contains articles by two RS lawyers.

Travis Kusch’s article “Closely Held Corporations: Avoiding the Messy Break-up”  offers practical advice to families who enter into business together.

Curtis Clavelle contributed “When Can an Employee Sue an Employer?”.  In the article he gives guidance on the scope and effect of c. 43 of The Workers’ Compensation Act.

BarNotes is published three times a year and is provided to members of CBA Saskatchewan.

 

 

Steele and Parsonson Speak on Wills and Estates

On March 5, James Steele and Ben Parsonson volunteered their time to address wills and estates issues with the residents of the Palisades Retirement Residence.

Together they spoke on the importance of having a Will, or Power of Attorney, or health care directive as well as some potential issues which may cause a Will to be challenged.

How to Avoid Challenges to your Will

How to Avoid Challenges to your Will

by James Steele

Robertson Stromberg LLP, Saskatoon

 

Having a Will is meant to provide comfort, and to make sure your family gets their inheritance when you pass on. Yet all too often Wills are challenged in court. This can cause a lot of stress and family turmoil.  However, there are things you can do to try to avoid your own Will being challenged.

A typical case?

I practise in the area of estate litigation. Let’s take a hypothetical but common scenario, similar to ones I have seen.

“Bill” is 85 years old and lives in Saskatoon. He is a widower and has a son and a daughter. His son lives in Ontario, and does not visit Bill often. Bill’s daughter lives in Saskatoon with her family.

In 2006, after his wife died, Bill made a new Will. It gave everything equally to his two children – a pretty standard Will. The children were aware of the 2010 Will.

In later years, Bill becomes more frail and more dependent. Bill gives up his driver’s license. His goes out of his home less and less. Bill relies on his daughter for medical needs, and errands and visits. Bill feels grateful. The son doesn’t see much of this, as he is living out of province. All the while, the son calls Bill on holidays, and notices Bill is more and more forgetful, although Bill is his cheerful self.

During this time, Bill make a new Will. He uses a homemade Will kit. He asks his daughter to buy a Will kit for him, and Bill fills it out. A friend of the daughter acts as one witness, and the daughter is the other witness (a bad idea, as shown below)

Bill leaves 80% to his daughter, and 20% to his son. He gives the daughter extra, because Bill is grateful to his daughter for the help, but still wants something to go to his son and the son’s family. Bill names the daughter as executor.  Bill never tells his son about the new Will, not wishing to risk any turmoil in the family.

A challenge begins:

Bill passes away. The son learns of the new Will. The son has suspicions, and feels this unequal treatment couldn’t have been intended by dad.

The daughter tries to explain, but the son cannot help having concerns about whether his dad was taken advantage of. After all, Bill was forgetful on the phone. Thus, maybe Bill lacked mental capacity when he made the new Will? Or maybe pressure was put on Bill? After all, Bill was living alone, and maybe the daughter used her visits to pressure him?

The son decides to hire a lawyer to challenge the new Will. The daughter hires a lawyer to defend the new Will. Both sides go to court and eventually each spend tens of thousands of dollars in legal fees. Eventually they agree to a compromise, but it takes years, emotion and money.

What can we learn from the above scenario?

First, having a lawyer properly draft your Will, can be a good investment. A lawyer should know what questions to ask, and will keep good notes. The lawyer will meet with a Will-maker alone, and make sure the Will-maker is of a sound mind and is not acting under pressure.  Then, if a challenge is later brought, the lawyer’s notes can be very helpful in clearing up any confusion.

The notes of a lawyer are more independent than evidence of the daughter. Right or wrong, any evidence of a beneficiary may unfortunately be seen as potentially conflicted, as she has a personal interest in upholding the Will. The other witness – the daughter’s friend is also not totally independent, as she is a friend of the daughter.

The lawyer will also make sure the Will is executed properly (i.e. the right wording is used to describe assets, and the proper signatures are applied). Here, for example, the daughter should not have acted as a witness. A person who receives a gift under a Will, should not be a witness, as it can lead to that person’s gift being void.

Finally, a Will-maker should tell his or her children about all new Wills, and not leave surprises to be discovered only after the Will-maker has passed on. In this case, if Bill had told his son what his new Will said, the son could have asked Bill questions to clear the son’s concerns. When a Will-maker has died without explaining a new Will to a disappointed child, too often the child assumes the worst.

 Summary

People choose to challenge a Will for several reasons. The most common grounds are concerns of lack of mental capacity, or concerns of improper pressure.

In my experience, many people wish to challenge a Will because they simply do not believe the Will-maker (who is often their parent) could have intended something which may seem unfair.

However, situations of suspicious family members can often be avoided. With the right planning and communication up front, you can better ensure that your wishes are smoothly followed when it counts the most.

 

Contacting a Lawyer on this Subject

James Steele practises in Saskatoon in the area of estate litigation, including will challenges, issues surrounding executors, joint account disputes, etc.

For more information on this subject or specific legal advice, contact James Steele at 1 306 933 1338.

The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations.

 

 

James Steele Contributes Article to Saskatoon Express

The Saskatoon Express newspaper has published an article by James Steele that offers practical advice on preparing wills.  He advises that with the right planning and communication up front, court battles over wills can be avoided.

Read James’s article in the January 28 issue of Saskatoon Express, page 12.

Carlson v. Carlson Estate case comment

This article offers an overview of the 2018 Saskatchewan decision in Carlson v. Carlson Estate, 2018 SKQB 196.

Carlson reminds us of the importance of preserving evidence of just how “voluntary” a will is. If, in contrast, a particular beneficiary of the will is seen to be too involved in the will’s creation, such impression might lead a court might conclude that there is an issue of potential undue influence.

Background

This involved a testator, Mabel Carlson, who had executed a will in 1975. This will named one of her children, Brian, as executor. It left her estate property to the testator’s children equally, if her husband  predeceased her.  Some later codicils were executed by testator over the years, but they did not otherwise affect the estate’s distribution of property.

In 2011, Mabel executed a radically different will, naming another child Warren as executor, and leaving bulk of her estate to Warren. $1,000.00 went to each of her grandchildren.. The testator also executed a power of attorney, making Warren and his wife the testator’s representatives. The testator also made Warren a beneficiary of her retirement income fund.

After the testator died in 2017, Warren proceeded to probate the 2011 will. Upon finding out that Mabel’s will had changed substantially, Brian brought the within application for an order directing a trial. Brian’s application focused on two issues:

  •  Whether Mabel was competent to execute the 2011 will; and
  •  Whether there was undue influence exerted on Mabel in the execution of the 2011 will.

Decision of the Court of Queen’s Bench

Brian’s application challenge the will was granted in part. It was found that a trial regarding undue influence should proceed.

The Court of Queen’s Bench began by noting the purpose of the court’s role, whenever a will is challenged. Brian had applied for an order that the 2011 will be proven in solemn form. Such an order would necessitate a long and expensive trial on the will’s validity.  To justify this, an applicant like Brian must, at the first hearing, establish that there is a genuine issue to be tried.

In other words, the “first hearing” stage of a will challenge is to weed out those cases which do not raise a genuine issue. By weeding out these meritless challenges, such avoids unwarranted delays in the distribution of an estate.

Should be a trial on the issue of Mabel’s capacity?

Thus, the question was – did Brian’s evidence point to some fact which, if accepted at trial, would tend to negative testamentary capacity, or support a finding of undue influence.

On capacity, the Court dismissed this first ground of challenge. The Court turned to the evidence of the attending solicitor, who drew up the 2011 will. The lawyer, Mr. Peet gave evidence which was summarized by the Court below:

34      Given the detail with which Mr. Peet attests to Mabel’s understanding of the extent of her estate and the beneficiaries, I find that Warren has provided the evidence required to overcome the suspicion with respect to testamentary capacity. I am persuaded through the uncontradicted evidence of Mr. Peet that Mabel understood the extent of her estate and who might benefit therefrom. Mr. Peet had taken instructions from Mabel a number of years earlier and on more than one occasion. In May of 2011 there was no confusion regarding who the members of her family were, what her property consisted of or how a distribution would operate.

[emphasis added]

As there was sufficient evidence that Mabel had testamentary capacity when she signed the disputed will on May 20, 2011, there was no genuine issue to be tried regarding capacity.

Should there be a trial of the issue of whether Mable was subject to undue influence?

That left the issue of undue influence. The Court defined undue influence, as being “coercion; pressure if exerted so as to overpower the volition without convincing the judgment.”[1]

The Court noted that undue influence can usually be discovered by examining the circumstances leading up to the preparation of the will, or by looking at the relationship that existed between the testator and beneficiaries.[2]

The Court found that the attending solicitor who drew Mabel’s 2011 will, had not offered detailed evidence on the issue of how voluntary Mabel’s 2011 instructions had been.

To the contrary, Mabel’s sister-in-law, provided an affidavit. It referred to Mabel becoming more dependent on others as she aged, and becoming more easily influenced as a result. The sister-in-law had witnessed Warren demanding that Mabel sign a document without allowing her to read it, and Mabel reluctantly complying after what she described as “his constant demands.” There was also evidence that Warren became “very controlling of which family members could visit” Mabel.

From this and other evidence, the Court found that there were suspicious circumstances relating to the issue of undue influence:

26      I find that there are suspicious circumstances here. These include that Warren brought Mabel to Mr. Peet’s office where there was a change in course of a dramatic nature regarding Mabel’s testamentary dispositions completely in Warren’s favour. Mabel went from scrupulously including all of her living children in 1975 through to 2001 to removing all of them except Warren in 2011. The purported cause of this was a belief that the remaining children were “millionaires”, based on what Mabel reportedly told Mr. Peet, yet there is no evidence this is true.

48      …I therefore find that the suspicious circumstances and accompanying evidence, some of which postdates the May 2011 attendance at Mr. Peet’s office, have not been rebutted by the evidence provided by Warren. There is a genuine issue requiring a trial with respect to the issue of influence Warren had on Mabel and whether her choices were that of someone who exercised free and voluntary decision making in the circumstances of this matter.

In short, there was a genuine issue for a trial. It was whether undue influence was exerted on Mabel.

Given this, the Court ordered a trial in relation to the issue of undue influence regarding Mabel’s will executed in May of 2011.

Lessons from Carlson:

Carlson reminds us of the important role played by the solicitor who prepares a will. Such solicitor interacts with the testator, at the time most critical to assessing capacity. The observations that said solicitor does, or does not note down, can prove all the difference.

Specifically, Carlson reminds us that solicitor should ideally take notes demonstrating just how “voluntary” the testator’s instructions were. For example, such evidence can be obtained by simply asking the testator such questions as the following:

  1. Whose idea was it, for you to prepare this (new) will?
  2. Why are you deciding to make these specific gifts?
  3. (If the new will contains dramatic changes from an older will) Why are these changes being made now?
  4. Has anyone tried to influence or pressure you, on the issue of your will?

All these questions (and their answers) would be discussed between the lawyer and the testator, in total privacy. Things like how the testator answers, including body language, or hesitancy, may also be recorded.

Carlson also emphasizes things that beneficiaries themselves seek to avoid doing. Specifically, a beneficiary should avoid any role in the creation of a will (even the act of accompanying  the testator to a lawyer’s office, or arranging appointments, etc). While such acts may be well intentioned, if they arise in the context of a radically new will, any challenge to that will, may seek to characterize these acts as “suspicious.”

 

Contacting a Lawyer on this Subject

For more information on this subject or specific legal advice, contact James Steele at 1 306 933 1338.

 

The above is for general information only. Parties should seek specific legal advice prior to taking action in specific situations. For more information or for specific legal advice, please contact James Steele at 1 (306) 933- 1338 and j.steele@rslaw.com.

 

Robertson Stromberg LLP offers legal advice and representation in all areas of law, including significant experience in estate litigation.

Copyright 2018 by the author. All rights reserved. Reproduction of any material herein without permission of the author is prohibited.

 

[1] See Sample, Re (1955), 15 W.W.R. 193 (Sask. C.A.) (WL) at para 13.

[2] See Lamontagne v. Lamontagne (1996), 150 Sask. R. 85 (Sask. Q.B.) at para 30.

Area of Expertise Estate Litigation