Lawyers in BC are now limited in various aspects of receiving any benefits from a will his or her office prepared.
As of January 1, 2013 the Law Society Rules of BC now provide: Chapter 3 – Relationship to Clients | The Law Society of British Columbia
TESTAMENTARY INSTRUMENTS AND GIFTS
3.4-37 A lawyer must not include in a client’s will a clause directing the executor to retain the lawyer’s services in the administration of the client’s estate.
3.4-38 Unless the client is a family member of the lawyer or the lawyer’s partner or associate, a lawyer must not prepare or cause to be prepared an instrument giving the lawyer or an associate a gift or benefit from the client, including a testamentary gift.
3.4 39 A lawyer must not accept a gift that is more than nominal from a client unless the client has received independent legal advice.”
It is very common for estates to generate income and sometimes capital during the administration of the estate on behalf of infants, people with disabilities and thus discretionary trusts, and so forth, that may go on for many decades.
Forbes magazine has recently published its annual list of the highest earning of dead celebrities and once again disinherited.com was incredulous at some of the sums of monies made by estates, such as that of Marilyn Monroe, who has been dead for over 50 years. I think it is safe to say that her estate has generated multifold more millions in income than she ever earned during her lifetime.
Here is this year’s top list ( all sums expressed in millions of dollars based on pretax earnings):
Rank
Celebrity
1.
Elizabeth Taylor- $210 million
2.
Michael Jackson-$145
3.
Elvis Presley-55
4.
Charles M. Schulz-( Peanuts) 37
5.
Bob Mariey-17
6.
John Lennon-12
7.
Marilyn Monroe-10
8.
Albert Einstein-10
9.
Theodor-Geisel (Dr.Seuss-9
10.
Steve McQueen-8
– See more at: http://www.disinherited.com/blog/some-estates-generate-large-incomes-decades#sthash.iLHlDgKx.dpuf
One of the newest forms of litigation appears to be that of sperm donors and their various legal rights and obligations.
I noted with interest a few months ago that the High Court of England handed down a landmark decision allowing two gay men in a civil partnership the right to apply for contact to their three biological children, who were artificially inseminated with the semen of the men, and who are being raised by lesbian couples with whom the men are friendly.
In Kansas just recently, William Marotta, had answered a newspaper ad seeking sperm donors for two women attempting to start a family.
In 2009 he donated several sperm samples and plastic cups and signed an agreement giving up all his parental rights.
The women subsequently separated and the state of Kansas sued him for child support, despite the fact that women did not want him to be part of the child’s life.
The state of Kansas had demanded the name of the girl’s father and took the position that he was responsible for the medical expenses incurred in the government-funded healthcare program.
In the first situation the sperm donors wanted access to a biological child.
In the second example the sperm donor wanted nothing to do with the biological child, yet was being sued for child support despite the fact that he had signed an agreement giving up all his parental rights.
It would appear that when artificial insemination began to be popular some years ago nearly all of the applicants were married women.
Apparently that has now changed so dramatically that 49% of the women who now receive donor conception treatment are single, with lesbian Gay bisexual and transgender families accounting for another third of the recipients, and married couples the small balance.
These extracts from a book called ‘Disorder in the American Courts’ are things people actually said in court, word for word.
They were taken down and published by court reporters who had the torment of staying calm while the exchanges were taking place.
ATTORNEY: What was the first thing your husband said to you that morning?
WITNESS: He said, ‘Where am I, Cathy?’
ATTORNEY: And why did that upset you?
WITNESS: My name is Susan!
_______________________________________________________
ATTORNEY: What gear were you in at the moment of the impact?
WITNESS: Gucci sweats and Reeboks.
___________________________________________________
ATTORNEY: What is your date of birth?
WITNESS: July 18th.
ATTORNEY: What year?
WITNESS: Every year.
_____________________________________________________
ATTORNEY: How old is your son, the one living with you?
WITNESS: Thirty-eight or thirty-five, I can’t remember which.
ATTORNEY: How long has he lived with you?
WITNESS: Forty-five years.
__________________________________________________________
ATTORNEY: This myasthenia gravis, does it affect your memory at all?
WITNESS: Yes.
ATTORNEY: And in what ways does it affect your memory?
WITNESS: I forget..
ATTORNEY: You forget? Can you give us an example of something you forgot?
_________________________________________________________________
ATTORNEY: Now doctor, isn’t it true that when a person dies in his sleep, he doesn’t know about it until the next morning?
WITNESS: Did you actually pass the bar exam?
____________________________________
ATTORNEY: The youngest son, the 20-year-old, how old is he?
WITNESS: He’s 20, much like your IQ.
___________________________________________
ATTORNEY: Were you present when your picture was taken?
WITNESS: Are you shitting me?
_________________________________________
ATTORNEY: So the date of conception (of the baby) was August 8th?
WITNESS: Yes.
ATTORNEY: And what were you doing at that time?
WITNESS: Getting laid
____________________________________________
ATTORNEY: She had three children , right?
WITNESS: Yes.
ATTORNEY: How many were boys?
WITNESS: None.
ATTORNEY: Were there any girls?
WITNESS: Your Honor, I think I need a different attorney. Can I get a new attorney?
____________________________________________
ATTORNEY: How was your first marriage terminated?
WITNESS: By death..
ATTORNEY: And by whose death was it terminated?
WITNESS: Take a guess.
___________________________________________
ATTORNEY: Can you describe the individual?
WITNESS: He was about medium height and had a beard
ATTORNEY: Was this a male or a female?
WITNESS: Unless the Circus was in town I’m going with male.
_____________________________________
ATTORNEY: Is your appearance here this morning pursuant to a deposition notice which I sent to your attorney?
WITNESS: No, this is how I dress when I go to work.
______________________________________
ATTORNEY: Doctor , how many of your autopsies have you performed on dead people?
WITNESS: All of them. The live ones put up too much of a fight.
_________________________________________
ATTORNEY: ALL your responses MUST be oral, OK? What school did you go to?
WITNESS: Oral…
_________________________________________
ATTORNEY: Do you recall the time that you examined the body?
WITNESS: The autopsy started around 8:30 PM
ATTORNEY: And Mr. Denton was dead at the time?
WITNESS: If not, he was by the time I finished.
____________________________________________
ATTORNEY: Are you qualified to give a urine sample?
WITNESS: Are you qualified to ask that question?
______________________________________
And last:
ATTORNEY: Doctor, before you performed the autopsy, did you check for a
pulse?
WITNESS: No.
ATTORNEY: Did you check for blood pressure?
WITNESS: No.
ATTORNEY: Did you check for breathing?
WITNESS: No..
ATTORNEY: So, then it is possible that the patient was alive when you
began the autopsy?
WITNESS: No.
ATTORNEY: How can you be so sure, Doctor?
WITNESS: Because his brain was sitting on my desk in a jar.
ATTORNEY: I see, but could the patient have still been alive, nevertheless?
WITNESS: Yes, it is possible that he could have been alive and practicing law.
– See more at: http://www.disinherited.com/blog/every-court-worker-has-riotous-stories-tell-here-are-few#sthash.LA5OpQ53.dpuf
Adult Children Who Were Neglected When Young Held Not Liable To Support Manipulative Mother
Anderson v Anderson, Doko and others 2013 BCSC 129 is sort of a “shoe on the other foot” vantage from the usual case blogged by disinherited.com
Here an elderly mother brought court action against three surviving grown children of her own, mostly in their 50’s, for monthly financial support based on her need.
The court found that two of the three children could not afford to pay support for their mother.
The third, while financially able to do do, was held not liable to do so by reason of the neglect and lack of proper parental leadership of the mother to her children when the children was in their formative years.
The Court follows the guidelines of Newson v Newson (1997) 35 BCLR (3d) (C.A.), as follows:
The claim is brought pursuant to s. 90 of the Family Relations Act, R.S.B.C. 1996, c. 128 (the “Act’), which provides:
(1) In this section:
“child” means an adult child of a parent;
“parent” means a father or mother dependent on a child because of age, illness, infirmity or economic circumstances.
(2) A child is liable to maintain and support a parent having regard to the other responsibilities and liabilities and the reasonable needs of the child.
[5] This section was repealed on November 25, 2011, as a result of the operation of ss. 258 and 482 of the Family Law Act, S.B.C. 2011, c. 25. The repeal of s. 90 followed the release of the White Paper on Family Relations Act Reform which was published by the Justice Services Branch on July 6, 2010. The white paper noted that s. 90 was rarely used and that it “creates more problems than it solves. The cost for an elderly parent to sue an adult child for parental support could often exceed the amount of support ordered, and such litigation is likely to damage the relationship between adult child and parent.” As a result of the repeal of s. 90, this decision is of interest to the litigants but has no precedential value.
[6] There are few reported decisions considering s. 90 or its predecessor sections. In Hua v. Lam, [1985] B.C.J. No. 2706 (P.C.), the court considered the differences in the Act between the various obligations a person has to support his or her children, a spouse and parents. By analyzing the interplay of the provisions in the Act, Collings P.C.J, concluded at para. 29:
The result of my reading of s. 58(2) [now s. 90(2)] is that the obligations to support a child or a spouse rank ahead of the obligation to support a parent. To put that another way round, the funds available must be applied first to support the child and the spouse, and only after those obligations have been fulfilled should they be applied to support the parent.
[7] The conclusion in Hua was implicitly approved in Newson v. Newson (1997), 35 B.C.L.R. (3d) 341 (C.A.), the leading case in British Columbia on the application of s. 90 of the Act. In Newson, the court considered an application for interim parental support by a father against his estranged children, none of whom were providing support to him at the time of the application. The court allowed the father’s appeal, overturned the dismissal of the father’s application and remitted the matter to the Supreme Court for determination. In doing so, the court determined that the section does not require a parent to demonstrate an existing dependency upon an adult child before he or she can seek support. The word “dependent” in the definition of “parent” is to be given its primary meaning of financial dependence. However, the court also concluded as follows at para. 35:
S-s.(2) of s.58 [now s. 90] qualifies the adult child’s liability to maintain and support a parent in want for the reasons stated in s-s.(1) in these terms:”… having regard to the other responsibilities and liabilities and the reasonable needs of the child”. These are words broad enough to enable the court to consider nearly all, if not all, of the children’s objections to alleviating the parent’s need. Specifically, the period of and the reasons for the estrangement of parent and children are factors to be taken into account in the objective evaluation and consequent ranking of the needs of the adult child.
[8] In Newson v. Newson (1998), 65 B.C.L.R. (3d) 22 (C.A.) [Newson 2], the court was again called upon to consider the dismissal of the father’s application for interim support. The father was homeless and in need of financial assistance. The court was critical of the approach taken by the chambers judge who made extensive findings of fact including a determination that the father had abused the children. The court found that it was not appropriate on an interim application to make findings of fact which could potentially embarrass the trial judge. The court found that the father had made out a prima facie case of entitlement and that two of the children had a financial surplus. The court ordered them to pay $200 per month. In doing so, the court stated at para. 15:
In the present case we are of the view the father has made out a prima facie case of entitlement. The circumstances of the children must be considered in a manner that avoids “thrashing out the merits of the case”. On an interim application these would include their financial circumstances and responsibilities and the long period of separation between them and the father. In our view, the unadorned facts of separation and estrangement would relieve the court from considering any moral claim on the part of the father to a lifestyle comparable to that of any one of the children. There would then remain for consideration whether relief is needed to relieve the more emergent consequences of indigence and of the financial circumstances and responsibilities of the children in this context.
[9] In S.A.G. v. M.R.G., 2000 BCPC 45, a mother who was estranged from her son sought parental support from him sufficient to put her on similar economic terms. His annual income was approximately equal to his reasonable expenses including annual RRSP contributions. The court found that the applicant’s conduct, even though it led to the estrangement, did not disentitle her to support. After examining the income and expenses of both parties, Gillis P.C.J. concluded at para. 57:
The result is that the son, though liable to pay maintenance for his mother’s support, does not have sufficient funds to pay any amount.
[10] The final decision commenting on s. 90 of the Act is Master Donaldson’s ruling on the interim application in this case: Anderson v. Anderson, [2000] B.C.J. No. 2694 (S.C.) [Anderson #1]. His review of the authorities led him, at para. 13:
… to several conclusions, not the least of which is that in determining the ability to pay maintenance for a parent the existing needs of the child’s present family must first be considered; and secondly, that one is required to take into account only the child’s own income and not that of his or her spouse.
[11] The limited jurisprudence has established the following approach to claims for parental support:
a) The first step is to examine the applicant’s financial circumstances as well as her health and personal circumstances to determine if she is financially dependent.
b) After examining those circumstances if it is determined that the applicant is financially dependent – in other words her assets and ability to earn income are not sufficient to enable her to support herself- then she has an entitlement to support under s. 90.
c) The next step is to examine the means of the children from whom support is sought as well as their responsibilities, liabilities and reasonable needs. If it is determined that a child has an excess of income over his or her reasonable expenses for responsibilities, liabilities and needs, an order for support may be made.
d) At the final stage, the court should examine the other circumstances of the parent/child relationship to determine the level of support. At this stage of the analysis, the reasons for and the length of any estrangement between them “are factors to be taken into account in the objective evaluation and consequent ranking of the needs of the adult child”: Newson. Estrangement may lead the court to conclude that a parent has no moral claim to a lifestyle comparable to that of any of her children.
disinherited.com is indebted to the Atlantic magazine on this extraordinary article re aggressive personality disorder, that appears all too frequently in estate disputes.
Regrettably, it is not considered a factor in determining mental capacity, but is simply a “personality disorder”.
Aggressive Narcissism : Lance Armstrong
Given his persistent lying and bullying, his arrogance and apparent indifference to the feelings of others, and the pain he inflicted on so many people, it’s difficult to feel much compassion for Armstrong — to even care to understand why he behaves the way he does. But let’s try.
A lust for money, for fame, or for victory — these are the main motivations the world has assigned to Lance Armstrong following his revelations during the Oprah interview and his dubious mea culpa. Yet these explanations, though thoughtful and widely shared, don’t fully account for his propensity to lie, no matter what the cost to others who challenge him, in order to achieve victory and preserve his heroic self-image.
While “narcissistic personality disorder” has been floated in connection with Armstrong’s name, this diagnostic label is more often used to vilify social pariahs like Bernie Madoff or Anders Behring Breivik than to shed genuine light on the person’s psychology. Armstrong’s grandiose personality certainly fits the profile of a narcissist, but these days, that label is most often hurled as an insult, used to express hostility toward egomaniacs who think too highly of themselves. How exactly does that label help us understand his history of relentless and ruthless lying?
Ongoing lies, in public statements and under oath, helped sustain the central lie of his existence: I’m a winner, not a loser.
A deeper, psychological view of narcissism explains that Armstrong’s personality works as a defense mechanism to ward off unconscious feelings of shame, defect or inferiority. The “Lance Armstrong” who for so long was adored by the public embodied a carefully constructed lie meant to disprove these feelings of unworthiness. Ongoing lies, in public statements and under oath, helped sustain the central lie of his existence: I’m a winner, not a loser. Over the years, whenever someone has challenged those lies, he has responded with swift brutality to protect that perfect image and prevent the return of shame.
John Bradshaw shed needed light on a type of toxic shame largely produced by shaming messages from parents, educators and other important figures in a child’s life. Today, this is how most people conceive of shame. But the unconscious feelings of shame that plague those like Armstrong are of a different order, with roots in the soil of emotional trauma during the first few years after birth: chaotic family life, depressed or alcoholic mothers, absent fathers, physical or sexual abuse, etc. It arises from a conviction, felt at the core of one’s being, that something went very wrong in these early years. As a result, they feel themselves to be defective, abnormal, ugly or a “loser.” Many people are consciously aware of these feelings. The popular idea of an inferiority complex captures their experience.
For others, the shame remains unconscious, kept from awareness with characteristic defense mechanisms. Narcissism is the primary defense against shame, where the creation of an idealized false sense serves to disguise and conceal the damage. Because narcissists feel threatened or attacked by criticism (anything that challenges the central lie of their being), they will respond by blaming the other person, or taking refuge in contempt. They may become enraged and indignant; when pushed too hard, they may go on the attack. The threat to their sense of self feels so dangerous that they may want to annihilate the source of it.
Anyone familiar with the “reasoned decision” about Armstrong from the United States Anti-Doping Agency or David’s Walsh’s books L.A. Confidentiel and Seven Deadly Sins will recognize this description. Armstrong’s arrogance and contempt for others, the indignant effort to turn tables on his accusers, charging them with vindictiveness and envy, his brutal assault on their characters and his attempts to destroy their careers — it all describes the narcissist who feels that his ideal self-image is under siege.
Gauging from recent reactions to his interview with Oprah, it appears that a large part of the public is ready to consign Armstrong to the dustbin. In USA Today, Christine Brennan found Armstrong to be “even more unlikable than one might have imagined,” referring to him as a “cold blooded customer.” Over Twitter, television host Piers Morgan remarked, “What a sniveling, lying, cheating little wretch @lancearmstrong revealed himself to be tonight. I hope he now just disappears.” Follow the comment thread on any of the online articles that analyze the Armstrong-Oprah interview and you’ll feel the hatred.
While perhaps the most dramatic example, Armstrong’s career has followed the typical arc of celebrity worship: first we raise our heroes to the pedestal then pull them down, throwing them onto the trash heap. Once disillusionment sets in, idealization gives way to hatred and contempt. Given his persistent lying and bullying, his arrogance and indifference to the feelings of others, his ruthless drive to win, and the pain he inflicted on so many people, it’s difficult at this moment to feel much compassion for Armstrong, or even to muster any interest in understanding why he behaves the way he does.
Lance Gunderson’s mother was only 17 when he was born and his father abandoned them when the boy was two. The fact that Lance refers to his biological father as his “DNA donor” and refuses to this day to meet him suggests that this abandonment was both painful and traumatic. His mother’s second marriage a few years later didn’t last, and though Lance took his last name, he never bonded with his step-father. This is the kind of chaotic early childhood that instills a basic sense of shame and unworthiness. While divorce no longer carries the same stigma it once did, children who grow up in broken families, especially boys without a father to admire and emulate, are more vulnerable to a wide range of social problems and emotional difficulties.
When the narcissist feels his idealized self-image to be threatened, he may go on the attack to defend it.
Armstrong found a way to rise above his lot. In the account of his victory over cancer, It’s Not About the Bike, he says, “I had started with nothing. My mother was a secretary in Plano, Texas, but on my bike, I had become something. When other kids were swimming at the country club, I was biking for miles after school, because it way my chance.” Follow the train of thought, and you’ll see it’s about feeling as if you’re nothing rather than having nothing. Competitive sport gave Armstrong a way to escape the sense of being inferior to the “normal” children, the other boys and girls at that country club. Victory in competition made him feel he was a winner and not a loser.
The narcissist lives in a world populated by two classes of people, the winners and the losers. His constant aim in life is to prove he’s a winner and to triumph over the losers. In the competitive cycling world of Armstrong’s era, winning depended upon the use of performance-enhancing drugs. Right or wrong, you couldn’t win the Tour de France as a clean rider. The psychological need to win, to escape the painful sense of inner defect or inferiority (shame) over-powered all other considerations. In terms of his psychological needs, the morality of his actions was irrelevant, not even a consideration.
To win represents a triumphant victory over shame, while to lose is contemptible. In the victory speech he gave after his seventh Tour de France victory, you can hear the contempt in his voice: “For the people that don’t believe in cycling, the cynics and the skeptics, I’m sorry for you, I’m sorry you can’t dream big. And I’m sorry you don’t believe in miracles.” He might as well have said, I feel sorry for you losers. It made no difference that this was in fact no miracle but rather a chemically-enhanced performance engineered by Dr. Michele Ferrari. The only thing that mattered was victory.
The narcissist craves admiration, of course. It serves as an antidote to the unconscious feelings of shame and unworthiness. Millions of adoring fans fed Armstrong’s need to believe that he was someone very special. Even more than a winner, he was becoming a hero to millions of people around the world: cancer survivor, humanitarian, a model of bravery and perseverance. They praised and idealized him. Armstrong carefully cultivated this image. His philanthropy has no doubt done genuine good, but in light of the recent revelations, you have to wonder how much the charity aspect mattered, and how much he relied upon LiveStrong to bolster his public image and further the winning narrative.
When the narcissist feels his idealized self-image to be threatened, he may go on the attack to defend it. Hundreds of women have responded to the post on my Web site about The Vindictive Narcissist, sharing their stories of ex-husbands who devoted great amounts of energy and money, often involving protracted legal action, to destroy the reputations of former wives who left them. Revelations from the USADA’s reasoned decision, along with the accounts of former friends and teammates who were threatened, sued and driven from the sport by Armstrong tell a similar story. The narcissist experiences a challenge to his or her self-image as a vicious attack and will respond in kind.
Armstrong vilified masseuse Emma O’Reilly for telling the truth about doping on the U.S. Postal Team, calling her an “alcoholic whore.” After former Tour de France winner Greg LeMond publicly expressed concern about Armstrong’s association with Ferrari, Armstrong threatened to find ten people who would testify that LeMond had used PEDs unless he apologized for his remarks. According to LeMond’s wife, Armstrong also offered a $300,000 bribe to one of her husband’s former teammates if he would claim that he had seen LeMond use the oxygen-boosting drug EPO.
When Betsy Andreu cooperated with David Walsh on his first book, revealing that Armstrong had admitted using PEDs to his oncologist, he sued her for libel. He has called her a “crazy bitch.” He threatened to “destroy” Filippo Simeoni for cooperating with anti-doping officials. After Tyler Hamilton released his book about doping in the world of professional cycling and began to cooperate with law enforcement, Armstrong accosted him in an Aspen restaurant: “When you’re on the witness stand, we are going to fucking tear you apart. You are going to look like a fucking idiot. I’m going to make your life a living … fucking hell.”
During the Oprah-Armstrong interview, he characterized such behavior as “controlling the message,” going on the attack to protect his territory, but there is no better way to describe it than vindictive and vengeful. One of the well-known features of the narcissist is a lack of empathy for the feelings of others. Despite his on-air apologies, Armstrong seems to feel no real remorse for the hurt he inflicted on his friends and teammates. He has called himself a jerk and an arrogant prick, but he doesn’t seem able to understand how much pain he has caused, to imagine what it would feel like to be Emma O’Reilly or Betsy Andreu, scorned in public by a powerful public figure, a hero to millions. The only thing that mattered was to destroy them.
LOSING FAITH IN SPORTS?
Armstrong still hasn’t acknowledged the truth of Betsy Andreu’s claim that she heard him admit using PEDs to his oncologist; he continues to insist that he had stopped doping when he returned to the Tour in 2009 and finished third. The man is engaged in damage control, saying whatever he believes necessary to retrieve some part of his public image and the chance to compete again one day. He wants to salvage a portion of the Armstrong myth, his idealized false self, and then begin to rebuild it.
If he’s going to learn and genuinely recover from this experience, Armstrong needs to feel authentic guilt for the hurt he inflicted on so many people. He needs to feel their pain, as Bill Clinton used to say, but in order to do so, he’ll have to feel his own: get in touch with that boy who felt like a nothing, face the shame that has fueled his drive to win and finally bring himself to sit down at the same table with the rest of us losers.
Like an alcoholic still in denial, he may need to “hit bottom” and lose everything before he can begin.
– See more at: http://www.disinherited.com/blog/aggressive-narcissism-there-only-win-or-lose#sthash.w8bVYka7.dpuf
Marriage dowries are largely unknown in Western societies, but still exist in India and China.
The marriage dowries have a long history and tradition, and involves the payment of money, goods, or estate that a bride brings with her into the marriage.
The monies and such are invariably given to the bride by her parents, and the reasons for this are often opaque.
Many believe that is simply “seed money” to the new groom, while others regard it as insurance for the bride in the event she is not treated well by her husband, or he dies.
One other historical reasons is to achieve higher status, nobility and recognition for the families.
Today’s news from China that a billionaire in Jin-Jiang has given his daughter, and her childhood sweet heart in excess of $225 million as a wedding dowry.
Apparently this is the third enormous dowry given in the same city in the last year, and the public internet response in China is one of ” astonishment, jealousy and congratulations”.
It would appear that the concept of dowry amongst the Chinese billionaires has been reduced to bragging rights and widespread publicity of both the family, and perhaps more importantly, the wealth and business acumen of the industrialist father of the bride.
– See more at: http://www.disinherited.com/blog/chinese-billionaires-compete-re-huge-marriage-dowries-daughters#sthash.UskwyHUk.dpuf
The lawsuit commenced in Manhattan this year concerning the estate of reclusive heiress Huguette Clark , has to be the years most sensational estate case, and thus appropriate for the last blog of the year.
The claim is brought by 19 distant family members concerning her estate which may be worth $400 million.
She married for a short time only and inherited the massive fortune from her late Senator father
She had no children or close family and lived the life of a reclusive- even one of her lawyers for 20 years never met her and spoke to her from behind a closed door.
The suit alleges that the two wills she did within a few months of each other at age 98 are invalid due to dementia and the undue influence of a Phillipino caregiver who was “very close” to the heiress, as her caregiver of 20 years.
The suit also claims back “gifts” totalling $44 million that were supposedly given as follows:
Caregiver- $26 million to her and another $6 million to her family, allowing her to buy 5 houses and drive a Bentley,
Nightmare Nurse- $1.1 million
Two doctors- $3.1 million
Lawyer- $2 million
Hospital- $12 million where she resided the last 20 years of her life in reasonably good health, in spartan conditions, before dying at 104
Accountant $375,000
A friend- $10 million
The decreased wrote all of the cheques herself until her eyes gave out at 102.
She often rebuffed advice not to give such substantial gifts, and incurred a huge tax bill for the gifts
All of the gifts were on top of substantial salaries- the caregiver was paid $131,000 per year, and the hospital $400,000
The lawsuit alleges that these individuals”bled” her estate and that the monies, including lawyer fees since 1997′ should be paid back to her estate
She was totally reclusive and saw no visitors except for “staff” in at least the last 20 years of her life.
The lawsuit alleges she was totally isolated and dependant on the aforesaid staff,especially the caregiver, Ms Peri.
The deceased left two wills, both done at age 98, and both within 6 weeks of the other
The first will left most of the estate to her intestate heirs, the plaintiffs in the court action, and $5 million more to Peri
The second will left out the intestate heirs and left most of the fortune to a museum to administer her art collection, and $31 million more to the housekeeper Peri
It is alleged that both wills are invalid due to lack of capacity and undue influence, and if the Court agrees, then the 19 relatives, all distant, would inherit the fortune
Much of the litigation concerning the two wills will focus on what occurred, if anything, during those 6 weeks to cause such a significant turn of events in the beneficiaries.
disinherited.com has seen a good deal of litigation concerning caregivers who benefit both during and after the life of the patient, but the Clark litigation takes it to a whole different level!
– See more at: http://www.disinherited.com/blog/housekeeper-and-staff-aged-heiress-sued-public-administrator-44-million-gifts-ny#sthash.B5DFGc2S.dpuf
There have been many court decisions in recent years with the courts have found financial advisors to be negligent in the handling of the investors funds.
This was not the case in the recent decision from Ontario in Erst v. Royal Mutual Funds Inc. 2011 CarswellOnt 15933
The plaintiff investor had invested her inheritance with the defendant financial institution.
The investment advisor determined the investors investment portfolio, which showed her objective was a combination of modest income and long-term growth, namely a balanced investor.
The investor accepted the advisor’s recommendation as a twin mix of investments on fully informed basis.
The financial markets suffered a collapse and the investments declined to such an extent that the investor redeemed her investments, and crystallized loss of $34,000
The investor brought court action for damages arising from these investment losses, and her action was dismissed
.
The court found that the financial institution was not responsible for her losses as it did not mischaracterize the investors investment profile.
There was no negligence or breach of contract in setting up her portfolio, nor in the time up to until hr redemption of the investments.
The court found that the institution had committed no actionable wrong in assessing the investor, advising her, and setting up her portfolio, which the Court found was all done in accordance with her instructions
The investment advisor consistently gave the investor the correct advice, and specifically to hold on to the investments because the losses were likely to turnaround in the long run
The investor ignored this advice and was the one who made the decision to redeem her investments and crystallize her losses.
– See more at: http://www.disinherited.com/blog/financial-institution-not-liable-loss-invested-inheritance#sthash.axVd9Tta.dpuf
Yesterday I blogged about who were nieces and nephews in the Re Holmes Estate.
One of the interesting side issues of the Holmes Estate case was that pursuant to the deceased’s will, if any of the 2 testator’s nieces or nephews predeceased the testator, that person share of his estate was to be paid to the predeceased person’s spouse.
In fact the spouse of one of the nieces of the deceased, had been convicted of her murder several years prior.
The court held that the convicted spouse of the deceased niece was not entitled to her share of the estate, because of the general rule of public policy precluding a person from benefiting from a crime.
Accordingly the Court held that the gift to the nieces and nephews was a class gift, and when a class member was disqualified from taking a share, that share was to go to increase the shares of the surviving class members.
The Court followed the Supreme Court of Canada decision of Nordstrom v Baumann 37 WWR 16, ( 1962) SCR 147 which had clearly stated that the will of public policy which precludes a person from benefiting from his or her own crime overrides the statute law as to the distribution of the estate of an intestate.
The court easily held that it is permissible in civil actions to make findings of fact which you proven in criminal proceedings would be held criminal.
Accordingly Canadian civil courts have repeatedly determined the question of whether or not the conduct of an individual amounts to a crime, for the purpose of invoking the rule of public policy precluding a person from benefiting from his own crime.
In this case the will, the questionable beneficiary was found to be criminally insane at the time she said a fire which cause the death of her husband.
Accordingly the court allowed her to inherit, as the finding of insanity did not prevent her from inheriting due to public policy. Her share was thus placed with the Public Guardian.
