Refuse to pass accounts? Off to jail with you

This new case from Ontario should make out-of-control executors think twice about their refusal to conduct the estate properly. In Walling v. Walling, the beneficiaries of an estate got tired of trying to get the estate executor to deal with the estate and his refusal to account for what he'd done so far.  They applied to the court for help, and the court ordered the executor to pass his accounts, and fined him $1,000. He still didn't pass them so he was fined again for $1,500. By this time the judges were sick of him too so when he still failed to pass his accounts, he was put in jail for 7 days for contempt of court, and ordered to pay costs of $2,000.

Obviously I don't know why this executor refused to pass his accounts. But whatever the reason, I hope it was worth $4,500 and a week in jail. So far.

Read the full case here.

When can you have two spouses?

In this post, Chris Staples talks about a new case (Blair v. Cooke) from the Ontario Superior Court which has said that for the purposes of making a claim for support against the estate of a deceased, the deceased could have two spouses at the same time. This is because more than one person at a time can fit the definition of "spouse" as set out in the Ontario law. Though most of us would logically think that we have only one spouse at a time, this case shows that the law may not agree with you. To read Mr. Staples' comments and the case itself, click here.

Capacity assessment can short circuit a will challenge

A brand new case in Ontario has said that a daughter's challenge against her mother's will could not proceed, because the mother had had a capacity assessment two days before she made her will that backed up the lawyer's opinion that Mrs. Caron was capable of making a new will. This is an important step, because the judge didn't hear both sides and decide that the mother had capacity; he said that because the capacity assessment was done at the time of the will (and due to some other facts that I'll outline below) there wasn't even an issue about capacity. He granted summary judgment, meaning that in the court's view, there wasn't even a capacity issue to argue about at trial.

Mrs. Caron was 86 at the time she made her will. She died only four months later. She appointed her son John as the executor and left the estate to him. Her daughter, Lorraine, challenged the will on two grounds, one of which was that her mother didn't have capacity to make a will. Lorraine also alleged that John had unduly influenced their mother to make a will in his favour.

As I've noted before, the law turns very much on the specific facts of each case. Mrs. Caron had changed her will four times in the eight years before she died. She would go back and forth between leaving all of the estate to John and dividing it between the two kids. The court took note of that tendency, as well as the fact that there were several capacity assessments done along the line. It was also noted that Lorraine and her mother had had a difficult relationship for years.

Another important factor was that the assessment done right before the final will had been conducted by a doctor who was considered a leading specialist in this kind of assessment, so his report that Mrs. Caron did have capacity was given a lot of weight.

This case offers older parents who anticipate possible estate disputes a way of preventing the need for the children to go through a long, costly trial. We now know that when there is a strong will drawn by a lawyer who documents capacity and there is a medical assessment of mental capacity done by a credible assessor at the same time, it might just be possible to head off arguments before they get to the trial stage.

Might I just add that since no parents ever think this is going to happen in their families, perhaps they should take their lawyer's advice when the lawyer suggests getting a capacity assessment?

In Mrs. Caron's case, the judge did think there was an issue about John improperly influencing his mother against Lorraine. The judge directed that the influence issue had to be hashed out in a trial. If anyone would like to read Justice Tucker's decision, click here.

Can people go to jail for elder abuse?

Elder abuse refers to mistreatment of older persons both by people who are in charge of their care and people who are not in charge of their care. It can range from physical violence to extreme neglect (lack of food, lack of medical attention, etc). It also includes financial abuse such as a child helping himself or herself to an elderly parent's money, or a door-to-door scam artist targeting seniors.

In Canada, criminal offences and their punishments are governed by the Criminal Code, which applies to every province and territory. There is no specific offence of "elder abuse" created by the Criminal Code.

Any criminal offence that applies to Canadians in general obviously applies to seniors as well. Offences that could be charged as a result of mistreatment of seniors include; murder, manslaughter, assault, neglect causing bodily harm, sexual assault, failure to provide necessities of life, making threats, theft, forgery and fraud.

An interesting offence from an elder abuse perspective is the criminal offence of theft by a person holding a Power of Attorney. Perhaps this provision (section 331) should be brought to the attention of all individuals who agree to act as attorney for their parents.

Once a person is convicted of a crime against a senior, the Criminal Code also has a couple of provisions that would affect that person during sentencing. One is the fact that the judge can take into account that an offence is considered worse when it is done by a person in position of trust or power over the victim. The second is that the judge can take into account whether the crime was motivated by the victim's age or disability.

So can a person go to jail for elder abuse? They can, and they do. Here are just a few recent Canadian cases:

R. v. Grant (New Brunswick, 2009) - daughter jailed for failure to provide necessities of life when elderly mother died in circumstances of shameful neglect.

R. v. Nanfo (Ontario, 2008) - daughter jailed for failure to provide necessities of life for elderly mother, who passed away.

R. v. Peterson (Ontario, 2005) - son was convicted of failure to provide necessities of life for his elderly father who did not pass away but whose life was endangered by the son's neglect of him.

And in R. v. Foubert (Ontario, 2009), a worker in a long-term care facility was convicted of assault on a number of elderly residents of the facility.