Wednesday, 11 February 2015

Some Wills should be overturned.                 

I appreciate the importance of leaving one’s estate to their loved ones but some people who have died drew up Wills in which they unfairly left some family members with nothing.  When that happens, the courts are prone to overturn the wishes of the deceased and give the estate to whomever the court deems to be the suitable beneficiaries.

There have been a number of court cases with respect to the estates of deceased persons where family members contested the Wills on the basis that the beneficiary of the estate used undue influence on the deceased prior to the deceased’s  demise. What immediately follows is such a case that was heard by the Supreme Court of Canada.  The case was titled, Geffen v. Goodman Estate and was heard in 1991.

The deceased, a woman with a history of mental problems, inherited the family home from her mother as well as a life interest in the residue of her mother's estate which was to pass on her death to her children.  Her brothers (later the appellants) were given cash bequests.  An earlier Will had given the deceased a life estate and directed that on her mother's death, the estate was to be divided among all her mother's grandchildren.  The brothers sought legal advice as to whether the second Will was valid and arranged a meeting between the lawyer, their sister and themselves to canvass the options that might be available to them all.  

One of the concerns of the brothers was that their sister would sell the house and they would then ultimately be financially responsible for her care.  The meeting ended with no agreement being reached and the sister from then on had only casual contact with her brothers.  She continued to seek the lawyer's advice, however, and a trust deed was executed (signed). The house was conveyed to trustees on terms that the deceased retained a life interest in it and that on her request; the trustees would consider a sale of the property so long as the sale was in her best interests.  The trust deed further provided that upon her death the trust property would be divided equally among the surviving grandchildren of the deceased's mother. 

Now here was the problem. The sister's Will left her entire estate to her own children rather than her own brothers. The Will was initially found to be invalid on appeal because of the operation of the presumption of undue influence. At issue in the Supreme Court was (1) whether the presumption of undue influence was properly applied by the Court of Appeal; and, (2) whether the trustees were entitled to costs out of the trust property. I am only going to deal with the first issue—undue influence.

Neither the result nor the process approach to the doctrine of undue influence fully captures its true meaning because the doctrine applies to such a wide variety of transactions from pure gifts to ordinary Wills.  In the issue of gifts, the process leading up to the gifting should be subject to judicial scrutiny because there is something completely repugnant about the judicial enforcement of coerced or fraudulently induced awards to people or organizations not normally entitled to the awards.  With respect to ordinary Wills based on relations getting the estate, it has long been the view of the courts that the sanctity of Wills should be protected unless they are patently unfair.  This means that it has to be something more than a tainted process, e.g., detrimental reliance, must be shown in order for the court to interfere with the wishes of the deceased.

Influence" refers to the ability of one person to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power.  To dominate the will of another simply means to exercise a persuasive influence over him or her.  The ability to exercise such influence may arise from a relationship of trust or confidence but it may arise from other relationships as well.  There is nothing  more  reprehensible than persons in a relationship of trust or confidence exerting influence, especially undue influence on the person who then makes a Will to the detriment of  the other beneficiaries.  Of course this depends on the motivation and the objective such persons seek to achieve. 

In the case of gifts or bequests, it makes no sense to insist that the donor or testator (person who signed the Will) prove that his or her generosity placed others at a disadvantage.

The court hearing the case should begin with an examination of the relationship between the parties.  The first question to be addressed in all cases is whether the potential for domination was a prime purpose in the nature of the relationship itself. 

Now it has to be obvious that if the deceased’s family ignored the deceased during most of his life and he chooses to leave his estate to a worthwhile organization, the court would in all likelihood let the Will stand the way it was written.

The inquiry must next involve an examination of the nature of the transaction.  When dealing with contested Will, a complainant (the plaintiff) must show in addition to the required relationship between the parties that the deceased’s Will presented unfairness either in the sense that he or she was unduly disadvantaged by it or that the beneficiary (the defendant) was unduly and unfairly benefited by it.  Moreover, it can be assumed in the vast majority of Wills that parties act in pursuance of their own self‑interest.  The mere fact that a particular beneficiary is receiving more than other beneficiaries isn’t always sufficient to trigger the presumption  that undue influence was  used to obtain that aim.

For example, a sister who cared for the deceased mother may rightfully receive more of the estate than a brother who preferred to have a distant relationship with the deceased. It would be quite inappropriate to put such a recipient of the larger portion of the estate to the proof of undue disadvantage or benefit in the result. 

However, once the plaintiff has established that the award is suspect, it triggers the presumption of undue influence and then the onus moves to the defendant to rebut it.                                                                                                 

In the case of Geffen v. Goodman Estate, a review of the circumstances between the sister and her brothers at the relevant time disclosed a potential risk for the brothers to exercise a persuasive influence on their sister before she died.  The trust instrument (document) was more akin to a gift or bequest than a regular transaction in a Will and the existence of the required relationship even without more proof was sufficient to trigger the presumption of undue influence being used on their sister.   It therefore had to be determined whether the presumption had been rebutted by the major beneficiaries; her brothers..  A meticulous examination of the facts was necessary to make that determination.

The appellants (the brothers) successfully rebutted the presumption of undue influence since there was very little contact between the brothers and their sister at the relevant time and that their sister was not in fact relying on her brothers to advise her. Further, the prime motivation of the brothers was to advance their sister's welfare.   It was also relevant that their sister received some independent legal advice and that the Will was not in accord with her best interest.

The trial judge had made a positive finding of fact, supported by the evidence, that there was no undue influence exerted in this case.  The prospect of the existence of any presumption of undue influence was therefore immaterial as it was not necessary to decide whether something already found not to exist should be presumed.

Now I will deal with a really contentious kind of Will. I am referring to a Will drawn up by a racist.  Even in death, you might not have the last word: especially if you’re a bigot.    

When Eric Spence died two years ago, with no family by the curmudgeon’s bedside, the Jamaican-born man left a last will and testament that disinherited the daughter he raised and left all his worldly belongings to his other daughter who lives in the UK and who he hadn’t seen in more than 30 years.

The bigoted 71-year-old man wrote in his Will;

I specifically bequeath nothing to my daughter, Verolin Spence, (age 51) as she has had no communication with me for several years and has shown no interest in me as her father.”

That wasn’t the real reason why he disinherited his daughter, Verolin.  Being the bigot he was during his life, he was very angry with Verolin when he discovered that she had previously given birth to a white man’s baby. 

When the matter came to court, she wrote in her affidavit; “In about September 2002, my relationship with my father came crashing down.  That is the time when I told my father that I was pregnant. When he found out that the father of my child-to-be was white, my father told me that he was ashamed of me.” From that moment on, she said he refused to return her phone calls and obviously wanted nothing to do with her or her son.

There are thousands of bigots like this creep everywhere. It is a smudge on the tablets of history.  When my youngest daughter who is Caucasian was going out with a black man, my wife and I were not alarmed or concerned because he was intelligent, worked for a living and really loved our daughter. Later they were married and lived happily together but unfortunately, he died at age 40 from a heart attack. He left behind his wife and their four beautiful semi-black children. My wife and I love those children as does our daughter.

Now back to that bigoted curmudgeon and his disgusting Will. In a rare judgment released, by Superior Court judge, C.A. Gilmour in Newmarket, he set aside Spence’s Will and divided his $400,000 estate equally between his two daughters. The judge said, “It is clear and un-contradicted, in my view, that the reason for disinheriting Verolin, as articulated by the deceased, was one based on a clearly stated racist principle. ” ruled Justice C.A. Gilmore. That is a principle that has no place in anyone’s Will.

Such a Will offends public policy that the deceased’s other daughter, Donna, should receive the entire estate simply because her sister’s children were fathered by a black man. That, in my view, offends human sensibilities and our concept of decency.

A judge voided the Will of a New Brunswick man because leaving his possessions to an American neo-Nazi group not only violated public policy, in violated Canadian hate laws.

People should realize that if they are going to make a Will that discriminates on the basis of race or is contrary to public policy, the consequences are that the courts are not going to be willing to enforce it. 

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