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Wednesday, December 6, 2017

It took 16 years for this son to win the legal battle against a predatory caregiver

A man in New Zealand named Leslie Willis installed a baby monitor in his aging father's room to help him keep an eye on his dad, who was sick with cancer. The things he heard through the monitor raised his suspicions about his father's caregiver, Pamela Thompson.

Leslie then searched his father's home and among other things, found a will in which his father was going to leave his entire estate to the caregiver. When Leslie asked his father about this, his father became upset because that will did not reflect his true wishes. The father went to his lawyer and changed the will back to his previous plan of leaving all to his son.

That wasn't all, though. Leslie also found out that his father had bought $50,000 worth of bonds and put them in joint names with the caregiver. Ms. Thompson claimed that she and the father had a close friendship and he wanted to give her this money, even though she had only worked with this family for a few months.

After the father's death, the mess ended up in court, as you no doubt would expect. Leslie claimed that the caregiver had unduly influenced his vulnerable father. The court battle over the $50,000 bonds took 16 years to resolve. Yes, 16 years! Eventually Leslie won the battle but what a horrible ordeal he went through thanks to one greedy person who tried to take advantage of a sick, old man. Fortunately the father had time to make a new will or that would probably still be in court as well.

It's not always a caregiver who tries to take advantage. It could be a friend, neighbour, or someone in the family. This case should serve as an example of how vulnerable our aging parents can be to opportunistic folks.

If you'd like to read more about this story, click here to see a blog post from the blog called The Sibling Fight (one of my favourite blogs to read) or click here to read the newspaper story that appeared in www.stuff.co.nz .

Thursday, November 30, 2017

JP Morgan says family awarded $8 billion deserves nothing

In a recent American case, a jury awarded $8 billion to the family of Max Hopper, who died without a will. Mr. Hopper's estate was about $19 million. JPMorgan Chase & Co (our Canadian equivalent would be a trust company) was hired to administer the estate.

The family took the administrator to court because it wasn't happy with how things were going. It was the usual kind of thing we see in court constantly: the family said that the administrator was taking too long and favouring one beneficiary over another. The issues are the same no matter the size of the estate.

In this case, the monetary award for the family was huge because it had two major components. One part of the award was to recover the losses the family said it suffered due to the administrator's handling of the estate. The other part of the award was made up of punitive damages, which means the jury was punishing the administrator for its behaviour.

As you can imagine, JPMorgan Chase & Co is appealing the verdict and the award. This matter will probably be in court for many years to come. Legal fees are reported already over $3 million. To read more about this case, click here to see a story from www.bloomberg.com.

Why a person with an estate of $19 million and a blended family did not make a will is simply incomprehensible. I can only assume that Mr. Hopper thought he had more time, as I hear often enough from people who are reluctant to make wills. In this case, though, I'm not sure that the fallout from the failure to make a will is really the take-away. Whether JPMorgan & Chase was appointed by will or by the court would not seem to be relevant. What is interesting is the enthusiasm of the jury to punish an estate administrator for mis-handling the estate.

Perhaps this is the trend we will be seeing. Here in Canada we've never had an award in an estate anything like $8 billion and we probably never will, but we do see more and more litigation against executors who are perceived to be mis-handling estates. As a general rule, executors who are honest and diligent don't have much to worry about in terms of being sued, but those who are being careless, negligent, or downright dishonest should realize that people in general seem to be fed up.

Sunday, November 26, 2017

Thanks for your votes for Favourite Law Blog

So many, many thanks to those of you who voted for this blog as your favourite for 2017's Expert Institute's contest. It appears that we came 12th. While I'm competitive enough not to be totally happy with that (let's face it, lawyers like to win), I'm also very pleased that we got that high for a first-time entry. It looks like all of those who ranked higher are American. Click here if you want to see the full results.

For 2018, I'll be aiming for a top-ten finish!

Does the law prevent me from leaving something to an ex-partner when I die?

A reader recently wrote to me to ask about gifts in a will to an ex-partner. Does the law prevent you from leaving something to them when you pass away? Read on to see the question and my response.

"Our Wills Succession Act states that an ex-partner cannot benefit from a will. I want to add a handwritten codicil to my will saying that even if we become ex-partners, I wish him to inherit. Is this possible?"

I've received variations of this question from readers in different parts of Canada so I thought it would be a good idea to discuss it a bit.

Nowhere in Canada does it say that an ex-spouse or ex-partner cannot inherit from you. You've interpreted that incorrectly. What the law does say is that if you die without a will, an ex-spouse or ex-partner has no legal right to insist on a share of your estate under provincial intestacy laws.

The law will allow an ex-spouse to claim against the estate for a division of matrimonial assets if that division process hasn't been completed when you pass away. That's based on the concept that the assets would have been theirs already if you two had finished dividing things up between you. This law varies across the country but is generally available to married spouses only.

If you make a will (or, as you have mentioned, a codicil) you are perfectly entitled to leave something to an ex-spouse or ex-partner if that is what you want to do. You can leave something to them just as  you can to any other friend. The will is the key to carrying out your specific wishes.

Keep in mind that I'm answering this question without any information about who else is in your life or about the size of the estate. There are certain people who must legally be supported by your will to avoid the risk of a challenge on the grounds of dependent's relief. Though your ex is not one of them, you may have minor children or disabled children who would fit this description. If there are only modest assets in the estate, the children (minor or disabled) may attempt to claim the entire estate for their support. In that case, you wouldn't be able to leave anything to your ex.

There are other ways of leaving something to a specific individual, as well. For example, you could name your ex as the beneficiary of a life insurance policy or an RRSP.

As usual, the short answer to your question is "yes, this is possible" but with wills and estates law, the answer can never be that short if it is to be accurate. There are always many factors to take into consideration.

Tuesday, November 14, 2017

Blended families and the passage of time both complicate estate claims

Real life is messy. That's just a fact. It's not always possible to give "yes or no" answers to questions because there are so many intertwined rules tangled up with complicated facts. A reader wrote to me with a really interesting question about a family that split up a long time ago. Following are the question and my comments:

"My dad's parents separated before he was born. His birth father remarried and had one son. My dad didn't have a relationship with his father until he was an adult. His half-brother mentioned some items being left in their father's will to my dad but he has never received them. He doesn't know if anything else was left to him. Does he have a right to part of the estate even if he wasn't named in the will? The second wife outlived my dad's father. Would that in anyway effect my dad inheriting or his ability to contest the will? My dad's not interested in "rocking the boat" but I would have no qualms about looking into it after my Dad dies. How do I go about getting a copy of the will?"

There are several things to consider here.

Something that you did not mention in your note is adoption. You did not say whether your father's mom re-married or if she did, whether her husband adopted your father. I'll therefore assume that he was not adopted by anyone. If he had been adopted by anyone, the discussion would end right here, since he would legally no longer be the son of his biological father and obviously would have no claim.

Whether your father has a right to a part of the estate other than what the will gives him is doubtful. If your grandfather had died without a will, there could be a claim that your father had an equal right with other biological children. However, there is a valid will, so your father would have to prove that for some reason he was entitled to a share even though he was not given one. Most people think that parents must leave their estates equally among their children, but that is not the case. There is no obligation to leave anything at all to an adult child who is not financially dependent on you, and who is not physically or mentally handicapped so that he could not earn a living.

Even if your father was for some reason able to bring a claim, you said that your grandfather's wife outlived him. Most likely the bulk of his estate went to her. Any claim brought by your father would have to be stronger than her claim as a wife since they'd be competing for the same assets. This of course, refers to a claim against the residue of the estate. If your father was specifically left certain items, he need only show up to receive them; he does not have to compete with anyone to receive those gifts.

Another fact to consider is that it's likely that your grandfather and his wife owned many of the assets as joint owners. Most spouses have both names on the house and the bank account. If they did, those assets wouldn't even have been in your grandfather's will. Neither would assets with direct beneficiaries such as his RRSP or life insurance policies. It's pretty common for married couples to set things up between themselves so that if one dies, the other one automatically gets to keep the bulk of the estate. In other words, there might not be much to make a claim against.

As for getting a copy of the will, you have two choices. You can ask the executor of the estate for a copy. You are not a person who is entitled to see the will so you cannot force the executor to give you one if he or she doesn't want to. Don't be surprised if this request is refused. Your father, on the other hand, has reason to believe that he is a beneficiary under the will and is entitled to ask the executor for a copy. Your second option is to do a search at the probate court to see whether one has been filed there. Once wills are submitted to probate, they become public documents. Not all wills are probated but it is worth a shot.

It sounds as though your father is not interested in contesting the will, which is probably for the best given the reasons I've outlined above. You, however, sound as though you might wish to do so. I can tell you that the passing of time does not help estate claims. Estates are distributed according to the information at hand. Over time, property disappears or loses value. Documents are destroyed or lost. People pass away and items in their possession are disposed of without anyone necessarily knowing that one day someone might show up to contest an old will. None of this gets any easier as time ticks by.

In any event, you are not a person who has any right to contest your grandfather's will. You personally have no claim against his estate. If your father names you  under an Enduring Power of Attorney and if that POA is actually activated while your father is alive, you could look into it for him. In particular, you  might ask about the items mentioned by his half-brother. Alternatively, if you are the executor named in your father's will, after his death you could look into it. But as I've said, even if there is some basis for a claim, which I doubt, there is the problem that there will be no assets left to claim against.


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