An attorney who is prepared to do some research or seek legal advice will of course be referred to the SDA for more information on his or her powers and duties. However, it is not easy to locate the actual section of the SDA that deals with the duties of an attorney. One has to go to section 38 of the SDA to ascertain that an attorney acting under a POA, where the grantor is incapable of managing property or if the attorney has reasonable grounds to believe that the grantor is incapable of managing property, is subject to the same duties (with a couple of exceptions), as a guardian for property.

The overriding duty of an attorney acting under a POA is set out in s.32(1) of the SDA:

“32. (1) A guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.”

All citizens are presumed to have knowledge of the law, but most people acting as attorneys are not lawyers and probably have no idea what a fiduciary is, or what the Courts have said about the duties of a fiduciary. On the other hand, unfortunately, naming a lawyer as attorney can still result in egregious breaches of trust on the part of the lawyer as happened in the case of Zimmerman v McMichael Estate.

Other duties of a guardian for property as they apply to an attorney acting under a POA are set out in section 32 of the SDA, which reads as follows:

Personal comfort and well-being
(1.1) If the guardian’s decision will have an effect on the incapable person’s personal comfort or well-being, the guardian shall consider that effect in determining whether the decision is for the incapable person’s benefit. 1996, c. 2, s. 20 (1).
Personal care
(1.2) A guardian shall manage a person’s property in a manner consistent with decisions concerning the person’s personal care that are made by the person who has authority to make those decisions. 1996, c. 2, s. 20 (1).
Exception
(1.3) Subsection (1.2) does not apply in respect of a decision concerning the person’s personal care if the decision’s adverse consequences in respect of the person’s property significantly outweigh the decision’s benefits in respect of the person’s personal care. 1996, c. 2, s. 20 (1).
Explanation
(2) The guardian shall explain to the incapable person what the guardian’s powers and duties are. 1992, c. 30, s. 32 (2).
Participation
(3) A guardian shall encourage the incapable person to participate, to the best of his or her abilities, in the guardian’s decisions about the property. 1992, c. 30, s. 32 (3).
Family and friends
(4) The guardian shall seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person. 1992, c. 30, s. 32 (4).
Consultation
(5) The guardian shall consult from time to time with,
(a) supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and
(b) the persons from whom the incapable person receives personal care. 1992, c. 30, s. 32 (5).
Accounts
(6) A guardian shall, in accordance with the regulations, keep accounts of all transactions involving the property. 1996, c. 2, s. 20 (2).
Standard of care
(7) A guardian who does not receive compensation for managing the property shall exercise the degree of care, diligence and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs. 1992, c. 30, s. 32 (7).
Same
(8) A guardian who receives compensation for managing the property shall exercise the degree of care, diligence and skill that a person in the business of managing the property of others is required to exercise. 1992, c. 30, s. 32 (8).
P.G.T.
(9) Subsection (8) applies to the Public Guardian and Trustee. 1992, c. 30, s. 32 (9).
Application of Trustee Act
[(10) and (11) do not apply to attorneys]
(12) The Trustee Act does not apply to the exercise of a guardian’s powers or the performance of a guardian’s duties. 1992, c. 30, s. 32 (12).

There are other provisions of the SDA that deal with other duties of the attorney, such as:
(a) making efforts to determine whether the incapable person has a Will, or if the incapable person has a Will, what the provisions of that Will are (section 33.1);
(b) not to dispose of property that the guardian knows is subject to a specific testamentary gift in the incapable person’s Will (s. 35.1);
(c) to make expenditures from the incapable person’s property:

a. that are reasonably necessary for the person’s support, education and care;
b. that are reasonably necessary for the support, education and care of the person’s dependents;
c. that are necessary to satisfy the person’s other legal obligations (s. 37).

Section 39 of the SDA provides for a motion for directions if the attorney requires further advice with respect to any question arising in connection with the Power of Attorney.

It is submitted that as presently drafted, the SDA is deficient in delineating clearly the duties of an attorney acting under a POA.

A future blog will deal with the records and documents an attorney for property is required to maintain by law.

One of the topics discussed was the increasing problem of elder abuse including financial, physical, psychological, emotional and sexual abuse.

Financial abuse is considered the most prevalent form of elder abuse. One of the most common causes of financial abuse is financial loss caused by mismanagement or theft under a power of attorney document (“POA”).

In my estate litigation practice, I have seen a tremendous increase in the frequency of disputes involving POA’s as opposed to litigation involving wills or administration of estates after the person has died.

In the coming weeks, I plan to blog about POA’s. In this blog, I offer some suggestions as to how to choose an Attorney for management of property and finances.

Under a POA , the person signing the POA ( the “Donor”) grants an individual(s) ( the “Attorney” ) power to make management decisions concerning the Donor’s property. The wrong choice of Attorney can lead to a depletion of assets due to mismanagement or outright theft by the Attorney.

In my estate litigation practice, I see many problems caused by the improper choice of Attorney or substitute decision maker.

If the Donor is naming one or more of his children, the following matters need to be considered: who is the best choice regardless of age, the ability of the children to work together, and the ability of the Attorney(s) chosen to handle the duties of an attorney. This of course would include keeping proper accounts and records and dealing with professionals such as lawyers and accountants. The records that must be kept by an Attorney acting for an incapable person in Ontario are governed by the Substitute Decisions Act (“SDA”) and the regulations thereunder.

In choosing an Attorney, consideration must be given to the circumstances of the proposed Attorney. Does the Attorney have any financial problems? Does the Attorney have marital problems? Has the Attorney ever filed for bankruptcy? Is there any reason to think the Attorney could be untrustworthy? Quite often, the Donor will not know the answers to some or all of these questions. The Donor should ask their prospective choice of Attorney these difficult questions, as the wrong choice of Attorney can have disastrous results. Statistics show that family members are most often the perpetrators of elder financial abuse.

In my view, it is advisable to have more than one Attorney when anyone other than the other spouse is acting. It is not unusual for a client to propose that all of his or her children act as Attorneys or substitute attorneys. If there are more than three children involved, I would recommend that the client narrow their choice or provide for alternate choices. Clients often want to appoint all their children as Attorneys as they wish to avoid family squabbles. Having more than three Attorneys can lead to problems where the Attorneys cannot agree or cannot get together to make decisions. The SDA provides that if the POA has two or more persons as Attorneys, the Attorneys shall act jointly (unanimously) unless the Power of Attorney provides otherwise. While a majority clause could be drafted, there is still the possibility of resentment on the part of the Attorney who is not part of the majority.

If a decision is made to appoint multiple attorneys either at first instance or as substitute attorneys, a decision has to be made as to whether the appointments should be joint or joint and several. That is, must the attorneys act together, or can they act independently of one another?

I am no longer drafting POA’s. When I was drafting, I usually recommended to my clients that if they appointed two or more Attorneys that the Attorneys act jointly, notwithstanding the potential for a deadlock if they could not agree on how to exercise their authority. Forcing the Attorneys to act together provides some checks and balances to protect the Donor’s property.

If the estate is large or complex, the appointment of a corporate or professional trustee should be considered to act as sole attorney or co-attorney with a family member or friend.

In a future blog,I will be discussing the duties of an Attorney in more detail.

I have written on this blog of several estate disputes involving celebrities. A recent case is yet another example of controversy that often results after a celebrity’s passing.

James Brown, the “Godfather of Soul” died in Atlanta, Georgia on Christmas Day in 2006. He left an estate estimated between $5 million to over $100 million depending on who you ask.

Brown left a Last Will and Testament dated August 1, 2000 in which he left all of his personal and household effects to his six adult named children. Brown left the remainder of his estate to the James Brown 2000 Irrevocable Trust via a pour-over provision in his Will.

The 2000 Irrevocable Trust was created as a formal trust on August 1, 2000 as part of Brown’s estate plan. He intended through this trust to provide financial assistance for the education of his grandchildren and disadvantaged youths.

Albert Dallas ( Brown’s personal lawyer), Alfred Bradley ( a retired judge who became Brown’s mentor when Brown was in prison) and David Cannon ( Brown’s accountant and manager) were named as the Co-executors of Brown’s estate and as well as the Co-trustees of the 2000 Irrevocable Trust.

Upon Brown’s death, the principal and income contained in the 2000 Irrevocable Trust, as augmented by Brown’s general estate was to be divided into two (2) shares of subtrusts:

1. The Brown Family Education Trust (“Family Trust”) which was capped in the amount of $2 million for tax purposes and designated for the education of Brown’s grandchildren and;

2. The James Brown “I Feel Good Trust” (“Charitable Trust”) which Brown declared “shall be used solely for the tuition, educational expenses and financial assistance of ….poor and financially needy children, youth or young adults who are both qualified and deserving) who seek and have need of such assistance to obtain and further their education at the many educational entities and/or institutions available in the States of South Carolina and Georgia.”

Brown’s Will contained what is commonly known as an in terrorem clause which provided that any beneficiary who challenged the Will or the 2000 Irrevocable Trust shall “forfeit his or her entire interest thereunder”.

Brown left a surviving spouse Tommie Rae Hynie. They were married on December 14, 2001. Brown and Tommie Rae signed a pre-nup agreement in November 2001 in which Hynie acknowledged that she was signing the pre-nup agreement knowingly and voluntarily and that she had been given the opportunity to receive independent legal advice, and waived any right to Brown’s property or the receipt of alimony or any part of his estate.

Following Brown’s death, five of his six adult children and Hynie brought an action to set aside Brown’s Will and the 2000 Irrevocable Trust based on undue influence.

The original Trustees either resigned or were removed by the Court for conflict of interest and for failing to carry out their duties (Cannon was accused of misappropriating hundreds of thousands of dollars and was convicted and sentenced to three years house confinement) and new trustees were appointed. As well, the Attorney General of South Carolina (‘AG”) who had responsibilities for charities in the State, (similar to the office of the Public Guardian and Trustee in Ontario) got involved.

The AG oversaw negotiations which resulted in an agreement at a mediation session on August 10, 2008. Under the terms of the settlement, a new charitable trust was established which provided for a net 47.5% to the new charitable trust for the charitable purposes as set out in the Will, a net 23.75% to Hynie which included any share attributable to the son she had with James Brown and a net 4.79% to each of Brown’s adult children who were parties to the settlement.

The settlement required Court approval. The Court at first instance approved the settlement agreement and directed the Appellants, the new Trustees to execute the agreement.

The new Trustees refused to execute the agreement and appealed the decision of the lower Court.

On February 27, 2013, the South Carolina Supreme Court overturned the settlement that divided the multimillion dollar estate on the grounds that the AG did not follow the late soul singer’s wishes in putting together the deal.

Chief Justice Jean Toal suggested that if the settlement was allowed to stand, it could prevent people from leaving most of their estate to charity because of fear their wishes could easily be overturned. The Supreme Court referred the matter back to the lower Court to deal with the estate and issue directions as to next steps.

Undoubtedly, the last chapter in this case has not been written.

To read the decision of the Supreme Court of the State of South Carolina in Re: James Brown Estate, click here.

An example of this is the recent English case of Hawes v Burgess. The case involved a will challenge between siblings over the estate of their late mother Daphne Burgess. The three siblings Peter, Julia and Libby did not grow up in a wealthy home. Peter and his sisters always got along well and they were a close knit family. However, petty sibling rivalry and jealousy led to a breakdown in the family.

Peter, the youngest sibling, had tremendous financial success as an adult. He ran a successful business which eventually sold for almost £ 5 million. The eldest sister Libby did not fare as well and was a single mother of four living on government benefits. The middle sister Julia became a magistrate and was well off, although not as well off as her brother Peter.

Their father, Peter Sr., who died in 1993, always instilled in his family the importance of being close and he believed in treating the children equally. The mother Daphne made a will 1996 in which she divided her estate equally between all three of her children.

In 2000, Daphne’s health started to deteriorate. The family decided to sell their mother’s house and move her close to Julia. Peter bought his mother a bungalow registered in his own name but he made provision that his mother would be able to live there as long as she wanted, even if Peter predeceased her.

Then an incident caused a rift between Peter and Julia which was to tear apart the close family. Their mother Daphne was a diabetic. Julia’s husband gave Daphne a sugary drink (something that a diabetic of course should never ingest).  Peter was upset and he  said something that he probably he should not have said. He called Julia’s husband an “idiot” in front of one of Julia’s daughters.  Julia was obviously upset by the incident and she sent a nasty  email to Peter. That led to an equally nasty email back from Peter. A bitter dispute ensued and Peter and Julia stopped speaking to each other.

Not long thereafter, Daphne, without the knowledge of Peter and his sister Libby, made a new will naming Julia and Libby as the only residuary beneficiaries and cutting Peter out of the will other than for a few personal items. Julia arranged the appointment with the firm of solicitors who drafted the will and took her mother to meet with the solicitor Mr. Webster on December 20, 2006. The new will was executed on January 12, 2007.

According to the story about the case in the Telegraph in which Peter was interviewed, his mother had had a mini stroke on December 29, 2006 and went into the hospital. She then moved in with Julia. Notwithstanding that, Julia still drove her mother to the solicitor’s office on January 12, 2007 to sign the will.

When the lawyer Mr. Webster met with Daphne to take instructions for the will , Julia was present at the meeting as well.  Mr. Webster, who was an experienced solicitor, dictated a note to the file that he was of the view that Daphne had capacity to make a will. However, he does not appear to have undertaken a careful interview of his client in private to assess testamentary capacity. A draft of the will was never sent out to Daphne for her review.

When it came time to execute the will, Julia was present  with her mother at the signing ceremony. The lawyer testified at trial that he read over each provision of the will to Daphne and that she appeared to understand and approve its contents. However, there were spelling mistakes in the will. In particular, Peter’s middle name was incorrect and yet Daphne did not indicate that the provision should be changed.

After Daphne died in 2009, Peter decided to challenge the 2007 will. Surprisingly, his sister Libby joined him in the challenge even though she stood to receive half the estate under the 2007 will and only one- third under the prior will.  Julia took the position that the 2007 will was valid. The trial took place over six days with 26 witnesses. The estate was worth less than £200,000.

At trial, an expert was called who gave a retrospective opinion that the deceased was suffering from dementia and had diminishing mental capacity. The trial judge accepted the evidence and held that the deceased lacked the appropriate knowledge and approval of the 2007 will. Interestingly, undue influence was not discussed in the decision.

The Court of Appeal dismissed the appeal after observing that the costs of litigation wiped out the entire value of the estate! The Court of Appeal referred to the fictional case of Jarndyce v Jarndyce, the”foggy family law suit” described in Dickens’ Bleak House. The Court noted that the efforts of lawyers and the Rules of Civil Procedure did not dissuade the parties from following a course leading to the dissipation of deceased’s estate in costs and legal fees.

Peter Burgess apparently never wanted any of the money. According to the published article in the Telegraph, he intends to see that both Libby and Julia get their share of the estate. Peter will give his share to Libby who needs the money. Peter has decided to pay all the legal costs of £150,000 out of his own pocket so that there will an estate to be distributed. I must say that Peter is much more generous than the litigants I have met.

Perhaps Peter feels that he bears some responsibility for what happened. After all, it was his comment that started the dispute. Rather than apologizing and sitting down with his sister to make amends, he and Julia blew the dispute totally out of proportion which led to the estate being consumed by legal fees.

Peter wants to reconcile with his sister Julia according to the published story, but he says, “… for that to happen …my sister would have to accept that she did wrong.”

Hopefully, brother and sister will each apologize and reconcile.

I recently received an email from one of the witnesses in that case who wrote as follows:

“Dear Mr. Charles Ticker,

I am referring to your above mentioned article. You are questioning the judges (sic) ruling in regards to the issue: Had Mrs. Drummond testamentary capacity?

I was a witness at the trial and had known Mrs Drummond for more than 15 years. As Mr and Mrs  Moore I was a neighbor helping the good lady for many years with simple chores like snow plowing, lawn moving, gutter and window cleaning etc.

During countless conversations  Mrs. Drummond mentioned her son. Never in a good way. The relationship was full of bitterness, regret and frustration.

The last 5 months of her life Mrs Drummond was in the hospital. During the last month, Bruce Drummond was informed many times that his mothers time is very limited and he NEVER, NOT ONCE came to visit or say his good-byes. He lives 6 hours away (by car) and he is retired.

Over the 15 years he visited a maximum of 5 times.

Mrs and Mr Moore took care of Mrs Drummond in the final stages of her life, treated her with dignity and respect right to the end. They did this out of the goodness of their heart. Mrs. Drummond offered them payment for their daily ‘services’ many a times and they always refused.

In my opinion, the question had Mrs Drummond testamentary capacity was not relevant.

I am aware that this was the legal issue, but The Honourable Mr. Justice N. Smith had the wisdom and experience to see the overwhelming evidence  that the relationship between  Mrs Drummond and her son was not a loving one, to put in mildly and that her ‘will’ to give her modest estate to the people who deserved it,  was not made in a ‘delusional’ stage of mind on a dreary afternoon, but was the result of decades of reality in Mrs Drummond’s life.

Your article suggests that the ruling will have lawyers scratching their heads… It shouldn’t. Because the ruling reflects the facts and is based on common sense.

For me this ruling renews the confidence I have in our legal system.

Respectfully,

Joern Alles”

Not all of these facts were published in the reported Court decision, in particular, the fact that the son who was challenging the will did not visit his Mom while she was in the hospital for the last 5 months of her life.

I still maintain that the learned trial judge applied the wrong legal test for testamentary capacity. And I , of course, do not agree with Mr. Alles’ opinion that  ”testamentary capacity was not relevant”.

On the other hand, justice may have been done, although the decision brings to mind the saying the “hard cases make bad law”.

As Paul Harvey , the famed radio broadcaster used to say: “Now, youknow the rest of the story”.

At trial, the solicitor testified that he took instructions for the will at a meeting at Dee’s home that lasted between half an hour and an hour. He had been contacted by the neighbour Mr. Moore who was present to introduce him but Mr. Moore did not stay for the meeting.
Mr. Perry was an experienced solicitor with more than 30 years in practice and he had prepared “hundreds and hundreds of wills”.
Mr. Perry was aware of the circumstances including the significant change to an existing will and the disinheritance of the son. This, of course, triggered “alarm bells” and he took careful notes when taking the instructions. His testimony at trial was that based on his experience he had no concerns about Dee’s capacity to make a will.

Mr. Perry stated that he was satisfied that Dee had reasons for disinheriting her son. He didn’t visit very often (his notes recorded that Dee had told him Bruce had not visited her for 50 years) and she was very close with her neighbours who had helped her over a period of 40 years.
The trial judge referred to the well-known test of testamentary capacity set out in Banks v. Goodfellow (1870), 5 QB 549 at 567:
“… [The testator] ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.”

However, the judge did not quote the usually quoted  passage from Banks v. Goodfellow which reads:
“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made (emphasis added).

The trial judge also quoted from a more recent formulation of the test found in Re Schwartz, a decision of the Ontario Court of Appeal which was affirmed by the Supreme Court of Canada where Justice Laskin summarized the elements of testamentary capacity:
“… The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property….”

The trial judge held that this did not mean that the testator must have perfect mental capacity for all purposes or be able to remember all the details.
At paragraph 36 of the judgement, he wrote:
“Diminished capacity does not equate to lack of capacity and a person who has been deemed incapable of managing his or her own affairs may still be able to make a valid will: Royal Trust Co v. Rampone, [1974] 4 WWR 735 at 743 (BCSC). “

The judge further held that medical opinions are not necessary determinative of testamentary capacity.
In the Supreme Court of Canada decision in Vout v. Hay, the Court held that there is a presumption that a will is valid where it has been duly executed with the requisite formalities after having been read by or to the testator who appeared to understand it. However, that presumption can be rebutted where there are suspicious circumstances.
In this case, the trial judge found that there were suspicious circumstances that being the opinion of a doctor a week before the will was executed that held that Dee had dementia and was unable to manage her affairs.
Notwithstanding the medical evidence, the trial judge found that the executors had satisfied him that the testator had testamentary capacity.
He held that that Dee’s mental condition was deteriorating but she was able to accurately tell the lawyer that her property consisted of her house and two bank accounts including one which she said had $25,000.00. However, in the same sentence the trial judge stated that Dee did not accurately recall the current balance in those accounts. According to the bank records, she actually had in excess of $48,000 in the bank.

The trial judge found that Dee was also able to articulate reasons for disinheriting Bruce although he found that she was inaccurate in that she apparently did not remember instances of his coming to visit. Dee had told her lawyer that her son had not visited her for over 50 years and only phoned once in a while. In fact the evidence showed that he did visit her from time to time, maybe once or twice a year through 2009, the year before she made her will. Telephone records also indicated that Bruce or his spouse called her at least once or twice a month although the phone calls were not very lengthy.
One would have thought that Dee’s advice to her lawyer that she had not seen her son for over 50 years was a delusion that would have negated testamentary capacity, particularly when she set that out in the will as a reason for disinheriting her son .
The judge held that this was not a case of an elderly and infirm testator suddenly making a will in favour of someone he or she has known for only a short time. However, the claim against the will was not made based on undue influence. Rather, the issue was testamentary capacity.
The trial judge did not give much weight to the physician’s opinion because the physician was not asked to address the issue of testamentary capacity. It is not clear why the physician was not asked to make a retrospective opinion on testamentary capacity based on her observations. According to the reported decision, it appears that evidence was not presented.
The judge acknowledged that while the successful party typically has the costs paid by the losing party, in this case, because of the legitimate questions that arose from medical opinion it would not be fair or appropriate to burden Bruce with the costs of the trial. However, instead of awarding costs out of the estate to all parties, the judge held that the parties should bear their own costs.

With respect, I find the result of the case somewhat puzzling. One would have thought that there was considerable evidence to support a finding of lack of testamentary capacity: there was evidence of dementia, mistakes as to value of assets and a shocking misapprehension as to when the son last visited.
This case emphasizes what I always tell my clients: you never know what a trial judge is going to do and there is no such thing as a sure winner. On the other hand, the judge placed great weight on the evidence of an experienced lawyer who took the time to take careful notes. In my view, had the lawyer not done so, Bruce would probably have won his case.

A recent decision of the Ontario Court of Appeal sets out the pitfalls of litigating estate disputes.

This case involved a dispute between a brother and sister over their late parents’ farm.

Gary and Louanne Mountain are the son and daughter of the late John “Jack”  and Helen Mountain.

Jack and Helen owned and operated a Holstein dairy farm in Caledon, Ontario. The farm had been in the Mountain family since 1830. Gary worked the farm as his full-time occupation together with his late father for 24 years. He was the fifth-generation of Mountains to operate the farm.
Jack suddenly died of cancer on November 28, 2001. While he always mentioned that the farm and most of the farm assets would be transferred to Gary, he did not make specific provisions for this in his will.

Jack and Helen had identical wills. Each left all of his/her estate to the other absolutely or if either spouse died first, the estate would go to Gary and Louanne to share equally. Gary and Louanne were also named as co-executors under both wills.

After his father died, Gary commenced a lawsuit seeking a declaration that he was beneficially entitled to the farm property and dairy farm business. He named his father’s estate, his mother and his sister Louanne as defendants.  TD Canada Trust Company was appointed Estate Trustee During Litigation.

Helen died on December 28, 2009.  

Gary’s action came on for trial in May 2010. The trial took 11 days. The trial judge found that Gary had not proven his oral contract with his parents and dismissed his claim.

The trial judge awarded costs to Louanne on a substantial indemnity basis fixed at $275,000 payable by Gary and not by the estate. This amount of course did not include the amount of legal fees that Gary had to pay to his own lawyer.

The Court of Appeal heard the appeal on May 25, 2012 and released its reasons on November 22, 2012 almost 11 years after Jack’s death.  In a unanimous decision written by Chief Justice Winkler, the Court  held that the trial judge made many errors in both applying the law and making findings of fact based on a misapprehension of the evidence.

The  Court held that the trial judge did not properly consider the evidence that was adduced that could support Gary’s contention that there was a legally binding oral agreement between him and his father . The Court also alluded to the issue of detrimental reliance that could form the basis of a remedy in Gary’s favour.

The trial judge found that the Statute of Frauds requires that a claim for land must be based on a written contract. The trial judge also held that Gary could not rely on the equitable exception to this rule; that is specific performance of an oral contract. The trial judge held that Gary had not satisfied the test of proving the oral contract which the trial judge set out as follows:

1. The plaintiff must adduce evidence either of his own or that of others which would establish the contract with sufficient particularity to permit the decree for specific performance ;
2. The plaintiff must adduce evidence that would meet the requirement of corroboration required by what is now section 13 of the Ontario Evidence Act ; and
3. The plaintiff must adduce evidence of acts of part performance on his
(emphasis added) part as will enable the Court to grant a decree of specific performance and result in the contract being held enforceable notwithstanding the provisions of section 4 of the Statute of Frauds.

The trial judge concluded that Gary had not proven the alleged contract.

The Court of Appeal disagreed. The Court held that the trial judge had applied the wrong test for part performance and that the Court could rely on acts of part performance by persons other than Gary. This included the evidence that Jack had asked for a lawyer to put the transfer of the farm into effect and signed a document transferring a milk quota to Gary (which document was interestingly witnessed by Louanne-albeit a day later).

As well, several witnesses, including a priest testified that Jack told them that Gary was to receive the farm. The Court of Appeal held that in essence Gary and his father were partners in the farming operation.

Unfortunately for Gary, the Appeal Court was not prepared to grant him judgment based on the transcript but rather ordered a new trial. The Court also set aside the trial judge’s cost award of $ 275,000 and left the issue of costs from the first trial to be determined by the trial judge conducting the new trial.   Gary was awarded costs of the appeal fixed at $40,000.00 .

Chief Justice Winkler stressed that a new trial was in neither side’s interest. He wrote that the “case cries out for a mediated, consensual resolution.” The Court of Appeal directed that mediation be conducted prior to any new trial.

This case underscores the importance of having an up-to-date estate plan including wills and powers of attorney.

Hopefully, the siblings will be able to resolve their differences without spending hundreds of thousands of dollars on a new trial. The full reasons for judgment in Mountain v. TD Canada Trust Company et al. can be found here.

Actor Sherman Hemsley is finally going to be laid to rest, more than three months after his death.

An El Paso Court ruled last week that Hemsley’s last will and testament was valid,clearing the way for the named executor, his long time friend, Flora Enchinton, to make the funeral arrangements.

Mr. Hemsley will be given a military funeral at Fort Bliss National Cemetery in El Paso, Texas. He had served fifteen years in the US Air Force prior to embarking on his acting career.

Hopefully, this is the last chapter in this sad story.

It’s now just over two months since I wrote about the dispute involving the burial and estate of the late Mr. Jefferson, actor Sherman Hemsley.

The actor died on July 24, 2012  and the dispute over his burial has still not been resolved. The judge in Texas in charge of the case has further adjourned the trial to November 9,2012. Meanwhile, the actor’s body remains in deep freeze in an El Paso, Texas funeral home.

The dispute is between Flora Enchinton who is described as “ beloved partner” of the late actor and Richard Thornton who claims to be the actor’s half brother.

Thornton also claims that Hemsley’s will which left his entire estate to Enchinton is a forgery.

Now another person has stepped forward to claim the will is a forgery.

Reverend Michael George Wells, a United Methodist Minister, claims to be a cousin of Hemsley.  According to online reports Wells is quoted as saying  “….we are not looking for money. But if we are entitled to something, we don’t want anyone else to have it.”

( Like the attorneys, maybe?)

From all the legal wrangling going on, you would think that the estate is worth millions of dollars.

But according to online reports, the estate is only worth $ 50,000 !

Seems Mr. Hemsley may not have been as financially successful as his alter ego Mr. Jefferson.

Stay tuned for further updates on this sad but true tale.

In an earlier blog post , I wrote about the sad story of Carroll Shelby. His wife Cleo Shelby and his children had been in a dispute over how to deal with his remains. Carroll Shelby was finally laid to rest in his birthplace Leesburg, Texas on Wednesday, August 29 after a private ceremony. His body had remained in limbo at the Dallas County morgue for more than two months. His wife had opposed his children’s intention to cremate his body claiming she had the right as his widow to decide how he would be buried.

She agreed to settle as long as she was provided with some of the ashes according to a report in the Dallas Morning News. His children had claimed that their father had signed a directive earlier in the year to have his remains cremated and split between them. But Carroll Shelby’s last wife Cleo claimed that the directive was a forgery and she claimed that she had another document signed two years ago that gave her the power to deal with his remains.

“We’re not happy with it ( the settlement) but we want to get my dad in the ground, ” said Shelby’s oldest son, Michael.

Carroll Shelby, may you rest in peace.