Interview: Ask & Answered With R. Trevor Todd

Interview: Ask & Answered With R. Trevor Todd

Trevor Todd was recently interviewed for an article in the Verdict (issue 155). View the original article here.


(1) the Verdict: With regard to both law clients and the legal system in general, what does the word justice mean to you?

Trevor: Justice. As an estate litigator I view the concept of justice through the courts of equity that my disinherited clients actually deserve, merit, and are entitled to share in the estate that has been created by typically their parents. Typically my disinherited clients are victims from a dysfunctional family where they were badly treated. I am very grateful that British Columbia has the provisions of the wills variation act ( now section 60 WESA) enshrined so that there is a moral obligation on behalf of parents to provide for their children and a legal obligation to provide for their infant children. The Canadian legal system certainly is not perfect in providing justice, but I venture to say, it is probably one of, if not the very best legal systems in the world.


(2) What were among the main reasons you chose to pursue a career in the legal profession?

The main reason I pursued a career in the legal profession is that my father had the aptitude of a lawyer but did not have the opportunity to attend law school. I remember as a child wanting to be a lawyer and recall completing my application to law school with the simple words “I have always wanted to be a lawyer”.


(3) When it comes to the legal professional, what is just as important to you now as it was 43 years ago at the start of your career as a lawyer?

I like to think that anyone who pursues a career in law is first and foremost guided by the overall principle of trying to help people with their legal problems. Throughout my career I have always obtained my greatest satisfaction in bringing a case to a satisfactory conclusion, and hopefully having attained the desired goal of my client.


(4) Being asked to represent an individual on a personal legal matter is an honour and a tremendous responsibility. What advice would you impart to new lawyers with respect to how they should approach meeting a potential client for the first time?

My advice to new lawyers with respect to how they should approach meeting a client for the first time is to listen carefully and ask probing questions to ensure that the client has merit to their claim before accepting their retainer. I urge lawyers to learn to say “no” much more than they typically do when it comes to accepting the retainer of every possible client. For example, if the client has previously retained more than two lawyers ( without valid reason such as retirement) , then I urge caution in accepting that potential client as the red light might be that the client is unreasonable. This is particularly the case when accepting contingency fee arrangements as in my view, it is the lawyer that bears most of the risk and not the client.


(5) Your practice has changed over the years, perhaps most notably by the fact that these days your work is exclusively focussed on estate litigation. In which way does your approach to work today differ significantly from your approach during your first 10 or so years in the practice of law?

When I started practicing law in 1974 I had an extremely general practice where in the same day I might do and impaired driving, a commercial lease and an uncontested divorce. In retrospect, I believe that most lawyers then did not do a particularly good job if they maintained such a practice, which I believe most did. Approximately 25 years ago I took a number of courses on focusing your practice and realized that specialization is not only what the public wants, but leads to a far more financially successful less stressful practice, as well as greater peer recognition. Coincidentally, at about the same time I had a significant estate litigation trial, which made the front page of the province and Vancouver Sun. It was an epiphany for me in terms of what I wished to do exclusively in my practice.


(6) What are among the most difficult aspects of your workweek, be it logistics or otherwise (e.g. time management, commuting, scheduling)?

I no longer have any difficult aspects in my work week as many years ago I developed the concept that I would strictly control my practice as opposed to allowing the practice to control me. I have stringently restricted the number of cases that I take each year to a very manageable number and only take cases that I think are of merit, interest and financial reward. I have noted that most lawyers are victims of overwork with too much stress and non-appreciative clients- I consider that their practices are largely examples of “the tail wagging the dog”.


(7) What are among the most challenging aspects of the cases you take on regularly?

The most challenging aspects of the cases that I regularly take are that they are often referred to me by other lawyers as being difficult and requiring expertise. I have particularly enjoyed the cases where it has been necessary to try “pushing the plaintiff’s envelope” by trying typically equitable remedies to overcome difficult fact situations.


(8) “Money Matters” is the theme of this edition of the Verdict. Money can be – and nearly always is – a challenging topic for anyone, regardless if we’re talking personal or professional. You are deep into a career that uniquely fuses personal and professional needs and obligations – with money, assets and family at the heart of it all. The Wills, Estates and Succession Act (WESA) is now eight years old (Royal Assent on October 29, 2009), has it been a great eight for the people of BC?Oversimplification aside, are money matters better (closer to just) for citizens who require legal assistance after the death of a loved one?

WESA came into effect on March 31, 2014 and comprised a great number of changes from previous estate statutes. Initially the provisions of the wills variation act that allowed an adult independent child to contest a will were not to be included in the new legislation. I (amongst others) strongly lobbied against this and spoke to a number of bar associations and wrote a number of articles to the effect that this provision should be kept in the new legislation. Atty. Gen. Oppal in his wisdom, fought the cabinet against this change, and prevailed. His rationalization amongst others was that many Southeast Asian women would be disinherited and would have no legal remedy. This is a very significant factor in that British Columbia is the only province in Canada, and one of the few places in the world other than New Zealand that allows an adult independent child to contest a will on the basis that they were not adequately provided for by their parents. The other significant change of WESA is the extreme relaxation of the rules relating to the proper execution of a will. One of the first cases in this regard was a court allowing a suicide note (unwitnessed of course) to be declared a valid will under the curative provisions of the act.


(9) Many of today’s legal professionals contend that law school did not prepare them for some of the biggest or most important aspects of managing a law practice. What is one practical everyday thing you learned from scratch, after earning your law degree?

The biggest complaint I have with respect to law school is that while they teach the student to analyze case law quite well, there was, and I believe still is, no training whatsoever with respect to the management of a law firm. Most law professors have never practiced law. Probably the biggest change that I have noted in the profession is that for approximately the first 20 years of my practice law was considered a “noble profession “whereas the reality is that it is increasingly “big business” on an worldwide basis. What I quickly learned after entering practice is that each lawyer is expected to have business skills, including marketing, and to be productive in the monetary sense. Many of the brightest students weren’t necessarily good at these skills. I have learned that personality and practical common sense are usually more valuable in the practice of law than high intellect.


(10) If you chose another career path, what would it likely have been, and which careers are among the ones you would consider nicely suitable to your skills and aspirations?

With respect to alternate career paths other than law, most of my classmates had a political science undergraduate degree. I recall writing an aptitude test just prior to entering law school and my main aptitude was that of the social sciences professor. In latter years, I have realized that I would probably have pursued a Masters in business administration If I had been unable to be accepted in law school. One of the things I have liked about law as a career, that equally applies to an MBA degree is the number of diverse avenues that can be followed if one is so inclined.


(11) What do you consider to be among the greatest traditions of life as a lawyer?

I consider one of the greatest traditions of life as a lawyer is the camaraderie of the profession throughout the world. I travel a great deal and have noted that no matter where I am, there is much in common with practitioners in the foreign country.


(12) You’ve been a member of TLABC from the early days of this association. You served a year as TLABC’s president and you were a dedicated member of the board of governors for well more than a decade. Aided by your experience to date and the benefit of hindsight, what do you regard as a significant way in which things have changed for lawyers who chose to join this professional association? Put another way, generally speaking, are professional associations and memberships more relevant than ever or are most of today’s professionals inclined to keep to themselves with regard to their practice issues?

I can still recall attending a TLABC seminar in 1982, and thinking that was by far the best, most practical seminar I had ever attended. The American attorneys who spoke were high-powered and inspirational. The course was so different and more practical than the CLE courses that I had taken. I immediately joined the fledgling association and got on the executive. Our first meeting was in Ian Sisset’s kitchen as TLABC did not have an office until my presidency in 1987. I have been writing an estate column for the Verdict now for approximately 22 years. I have urged a great number of young lawyers to get involved with TLABC and consider it to be one of the very best professional legal associations. With the decline in mentoring over the years I think it is more important than ever for lawyers, and in particular young lawyers to join such professional associations.


(13) Whether far back in world history or in modern times, who are some of the lawyers and laypeople that come to mind when you think of people you admire, and what do you find most admirable about them?

Lawyers and laymen I admire in world history are Margaret Thatcher and Mikhail Gorbachev for their strong individual beliefs that were contrary to the prevailing thought of their time and circumstances and who largely helped to end the Cold war that persisted throughout most of my life.


(14) If you could have been counsel on any case in world history – in any field of law – which case would it have been, and what is it that draws you to it? Additionally, which lawyer or lawyers in history do you think you would have enjoyed most working against or alongside?

If I had been counsel on any case in world history, I would choose being a prosecutor at the Nuremberg war crimes trials. I greatly admire the prosecutors who have participated in trials against genocide. Such work appeals to both my keen interest in world history as well as huma rights justice.


(15) Featuring law as a central theme or as a compelling backdrop to a story, which books or films are at the top of your list of favourites?

I have never been attracted to television portrayals of the practice of law as Perry Mason and LA Law gave very false impressions to the general public as to what the profession is truly like. On the other hand I admit to being a John Grisham addict and have read every one of his books, including his few non lawyer ones.


(16) Which mantra, quotation or expression do you find particularly inspirational, one that is powerful enough to guide you through the toughest of days?

The quotation that helped me the most in the development of my estate litigation practice was back when I had one case and was wondering when the next one might come in the door. It was the very early 1990s, and when I bemoaned the fact of that I had grave concerns about making a success of it, a friend stated” Rome wasn’t built in a day”. That quote somehow caused me to realize that perseverance in the pursuit of something that you really want will invariably prevail.


(17) Trevor Todd – if all of your arguments were made and your law books were closed forever, where would you be living and what would your life be like? Alternatively, describe an ideal non-work day in which you are living life exclusively on your terms.

At this time I cannot come to grips with what it would be like to not practice law anymore. Many of my contemporaries have retired or are thinking about it. My attitude remains that I will do it until “I drop,” If I did have to describe a non-workday in which I was living exclusively on my terms, it would probably involve adhering to the principles set out in the book “ The Four Hour workweek” and realizing that I could be living in a foreign country in the lap of luxury, working only as and when I wanted, and enjoying life on my own terms.


(18) At this stage of your career – with the sum and strength of 43 years of experience as a lawyer – what can you, legal professional, say for certain about law?

After 43 years of practice, I can state that there will always be a need for lawyers in our society, but as a profession, It is threatened not only by an overabundance of lawyers, but technology such as artificial intelligence. The lawyer of the future will need to be highly specialized and able to adapt to radically changing social situations.


(19) Today, with the benefit of your life experiences to date, what can you – Trevor Todd – say for certain about life?

With respect to life experiences, I think the quote from Forest Gump that “life is like a box of chocolates- you never know what you’re going to get” is most apt. As far as certainty goes it is limited to death and taxes.

Predatory Marriage

Predatory Marriage

Probably every experienced estate litigation lawyer has had court actions involving a predatory spouse. The phenomenon is disturbing and increasingly common in our society as individuals both live longer and accumulate more wealth.

In simple terms, predatory spouses take advantage of elderly victims and assume control of their financial affairs and often culminate in a secret marriage. The consequences for the victim and their immediate family are traumatic and significant.

Predatory marriage refers to a marriage ceremony entered into for the singular purpose of exploitation, personal gain and profit. Love and personal commitment are simply not part of the equation. The relationship typically begins when a caregiver persuades a vulnerable person to marry. The victim is usually elderly, dependent, vulnerable and suffering from significant cognitive impairment.

The marriage ceremony is usually secretive and the victim is thereafter closeted away from their loved ones as the predator takes control and management of the victim’s financial affairs.

Historically, the courts took an overly simplistic approach to marriage in that they equated marriage to a simple contract requiring minimal mental capacity. In other words, “any idiot can get married”.

Ironically, perhaps, if the contract to enter marriage is so simple, then why does a significant percentage of the legal profession engage in full-time work trying to extricate the parties from the supposedly simple contract?

The Law

One of the early leading cases is from 1885. Durham v. Durham 10 P.D. 80 provided a quote that has been frequently adopted by Canadian courts: “the contract of marriage is a simple one, which does not require a high degree of intelligence to comprehend”.

It is only in recent years that the courts have taken a more realistic approach to the level of mental capacity required to enter into a valid marriage. The law may still be described as being in a state of flux, and the courts typically still view the capacity to marry as a lower threshold than the capacity to manage one’s affairs, make a will, or instruct counsel.

The leading case in British Columbia is Wolfman–Stotland v. Stotland 2011 BCCA 175, which set out the hierarchy of capacity required for various decisions, holding that:

  1. separation is the simplest act, requiring the lowest level of understanding;
  2. divorce, while still simple, requires a bit more understanding in that it requires the desire to remain separated and no longer be married;
  3. American courts have recognized that the mental capacity required for divorce is the same as that required for entering into marriage;
  4. financial matters require a higher level of understanding than marriage;
  5. the capacity to instruct counsel involves the ability to understand financial and legal issues, which puts it significantly higher on the competency hierarchy;
  6. the highest level of capacity is that required to make a will.

A lack of mental capacity to marry will render a marriage void ab initio (as if it had never occurred) per Ross-Scott v. Potvin 2014 BCSC 435.

The law presumes that an adult has capacity unless the contrary is established. The onus of proof for establishing lack of mental capacity to marry is on the person asserting the same.

3 Recent Cases Involving Predatory Spouses

1. Juzumas v. Baron 2012 ONSC 7220

This case involved a predatory marriage where the victim, Mr. Juzumas, was an 88-year-old vulnerable male who was mentally incompetent. The court set aside a wedding and a transfer of his property to the predator’s son on the basis of the doctrines of undue influence and unconscionability.

Ms. Baron, the predator spouse, was a 64-year-old widow who had been married previously 6 to 8 times and had a history of caring for older men with the expectation of receiving an inheritance through their estates. She befriended Mr. Juzumas and promised to live together and care for him. He married her and signed a will naming her as the executrix and sole beneficiary.

After the marriage ceremony Ms. Baron continued to live in a separate apartment with her 23-year-old son and only visited her purported husband for several hours a week. She became increasingly abusive controlling and domineering towards Mr. Juzumas.

Without her knowledge, Mr. Juzumas ultimately changed his will to leave Ms. Baron only a modest bequest of $10,000. When she found out she embarked on a campaign to ensure that she received Mr. Juzumas s’s home. Through the assistance of a lawyer, an agreement was drafted that transferred the property to Ms. Baron’s son and Mr. Juzumas was left with a life interest in his home.

At the time of the transfer, Mr. Juzumas was 91 years of age, vulnerable, in failing health and completely dependent on and dominated by his abusive spouse. He lived in constant fear of being abandoned to a nursing home, with which Ms. Walker continually threatened him.

He commenced a court action to set aside the transfer of the property and sought a divorce and dissolution of the marriage.

The court set aside the transfer of land on the basis of the doctrines of undue influence and unconscionability, both of which may be used “where a stronger party takes advantage of a weaker party in the course of inducing the weaker party’s consent to an agreement”.

The court found that there was actual undue influence by reason of the fact that Ms. Baron threatened an elderly dependent with abandonment to a care home.

The court also found presumptive undue influence by reason of the fact that she was a caregiver who had the ability or potential to dominate the will of the other, whether through manipulation, coercion, or outright but subtle abuse of power.

It was incumbent upon the wife to rebut the presumption of undue influence and demonstrate that the transaction was an exercise of independent free will, which she was completely unable to do.

The court also relied upon the doctrine of unconscionability which gives the court the jurisdiction to set aside an agreement resulting from an inequality of bargaining power. The onus is on the defendant to establish the fairness of the transaction.

2. Hunt v. Worrod 2017 ONSC 7397

The facts of this case are perhaps as egregious as they possibly may be with respect to predatory marriages.

As a result of a catastrophic head injury, the 50-year-old Mr. Hunt had been in a coma for 18 days and hospitalized for four months. The injury left him with what doctors described as a wasted, shrunken brain.

Three days after leaving hospital, Mr. Hunt was spirited away by the defendant Worrod, a former girlfriend, for a secret wedding that gave her legal rights to his future wealth and his landscaping business, home and expected $1 million personal injury settlement.

Mr. Hunt’s concerned children contacted the police, who located him in a motel just hours after the purported wedding took place. His sons had been made his legal guardians by court order.

Mr. Hunt never lived with his purported wife after the marriage. Before the accident he had had an on-again, off-again relationship with Ms. Worrod and had concluded their relationship with a separation agreement that resolved all of their property and legal obligations to each other. In fact, he had been required to contact the police to remove her from his residence when the relationship ended.

It was noted that Ms. Worrod was an extreme alcoholic who had hit Mr. Hunt when drunk and was generally unable to act and care responsibly for herself while intoxicated.

Evidence at trial from various medical experts was conclusive that Mr. Hunt was intellectually devastated with serious physical and cognitive issues that made him increasingly malleable and easily influenced through emotional stimulation, including sexual relations.

The medical evidence was consistent that Mr. Hunt suffered a classic case of frontal lobe syndrome that limited his ability to reason abstractly, problem solve, make decisions or consider alternatives, and that he lacked insight and self-awareness. His cognitive limitations severely limited his ability to understand the consequences of his behaviors and actions.

All of the various medical experts who testified made it clear that Mr. Hunt did not have the capacity to marry. As stated in Ross-Scott v. Potvin 2014 BCSC 435:

“A person is capable of entering into a marriage contract only if he or she has the capacity to understand the nature of the contract and duties and responsibilities it creates. The assessment of a person’s capacity to understand the nature of the marriage commitment is informed, in part, by an ability to manage themselves and their affairs. Delusional thinking or reduced cognitive abilities alone may not destroy an individual’s capacity to form an intention to marry as long as the person is capable of managing their own affairs.”

The court concluded that Mr. Hunt did not have the requisite capacity to marry as he did not understand the nature of the contract he was entering into and the responsibilities the contract created.

The marriage was declared void ab initio and Ms. Worrod was ordered to have no further contact with Mr. Hunt.

3. Devore-Thompson v Poulain 2017 BCSC 1289

The deceased, Donna Walker, suffered from Alzheimer’s disease and in September 2010 was declared by the court to be incapable of managing her financial and legal affairs because of her dementia. She had moved into a care facility in September 2010, where she remained until her death in late 2013 at age 74.

Ms. Walker had purportedly married the defendant Poulain in June 2010 but they never lived together, either before or after the marriage ceremony.

The overwhelming evidence of several lay witnesses, as well as a treating geriatric psychiatrist, was that Ms. Walker had lacked mental capacity to marry in 2010.

For example, one lay witness testified that Ms. Walker had told her that she did not know where she was married, who married her, or even why she married the defendant. Once again, the marriage was done in secret and there were no friends or family at the wedding service.

There was one photograph taken at the wedding ceremony which clearly indicated that Ms. Walker’s facial expression was vacant.

After her first marriage ended, Ms. Walker had always told those close to her that she never wished to marry again. She was very close to her family and friends but never expressed to a single witness that she was in love with the defendant, that she knew anything about him, that they had any kind of future together, or that she wanted to get married and spend the rest of her life with him.

The evidence of the treating geriatric psychiatrist was most significant, in that she testified as follows:

  1. Ms. Walker did not understand reality, absorb information or make decisions based on the correct facts, and that she had no insight or judgment.
  2. On learning of the purported marriage, the psychiatrist had made an urgent referral to the Public Guardian and Trustee stating that Ms. Walker was incapable of entering into a marriage relationship as she was moderately to severely demented and had significant impairment of executive function. She also noted that Ms. Walker was at significant risk for abuse as a vulnerable adult.
  3. Ms. Walker did not have a grip on reality but insisted that she was fully independent for self-care and household management, despite much evidence to the contrary.

The defendant testified that he had no concern about Ms. Walker’s mental capacity.

The court had no difficulty in finding the defendant to be a completely untruthful witness who was motivated by a desire for financial gain from Ms. Walker’s assets.

The court concluded that Ms. Walker’s mental capacity had diminished to such an extent that she could not have formed an intention to live with the defendant or to form a lifetime bond. At the time of the marriage she did not understand what it meant to live together with another person, and could not know even the most basic meaning of marriage or understand any of its implications, including who she was married to, in the sense of what kind of person he was, what their emotional attachment was, that they would be living together, and fundamentally how marriage would affect her life on a day-to-day basis in the future.

Accordingly, the court found that Ms. Walker did not have the capacity to marry the defendant and the marriage was declared void ab initio. Two wills done by Ms. Walker in 2007 and 2009 were also set aside by reason of her lack of capacity.


The advent of a rapidly aging population with significant wealth will certainly lead to a rise in the increasingly common phenomenon of predatory marriage.

The legal issue of mental capacity to enter into such a marriage will increasingly become more relevant and litigated.

The legal test for capacity to marry is in a state of flux. It will undoubtedly continue to evolve as more instances of predatory marriage are brought before the courts and they become more accustomed to recognizing such predatory behavior.

To some extent I believe it is a situation where the courts need to be more cognizant of the significant number of predators in our society who prey upon the infirm and vulnerable.

The concept that only a low level of mental capacity is required to enter into a marriage is an anachronism that needs to be corrected, given the complexity of current family law, particularly as it relates to property entitlement to the assets of one spouse.

At present, to succeed in having a purported predatory marriage set aside, it is necessary to prove on the balance of probabilities that the victim lacked mental capacity to understand the nature of the marital contract, which typically requires both the testimony of lay witnesses and medical evidence of lack of capacity.

The Juzumas v. Baron decision is significant in that the court also invoked the doctrines of undue influence and unconscionability in setting aside the purported marriage. Hopefully it will be followed by other court decisions as useful tools to remedy a wrong suffered in the context of a predatory marriage and financial abuse.

Unsigned and Undated Will Valid (S.58 WESA)

Unsigned and Undated Will Valid (S.58 WESA)

An unsigned will was found to be valid under section 58 WESA as representing the deceased persons fixed and final testamentary intentions that varied an earlier will in the decision Skopyk Estate 2017 BCSC 2335.

The application to cure the will, under the provisions of section 58 of the Wills Estates and Succession act was unopposed, and the order was granted.

The deceased had made a prior 1995 will that was found to be validly varied by the subsequent unsigned will that was not dated, but was in handwriting reasonably similar to the handwriting in a letter entered into evidence, that was signed by the deceased. That letter was found in a drawer in the deceased’s apartment next to the 1995 will.

The unsigned and undated document referred to the will dated November 16, 1995 and purported to change the distribution of the residue of the estate.

Legal Principles

The court referred to S 37(1) of WESA that stated that in order for a will to be valid, it must be in writing, and signed at its end by the will maker, or the signature the end must be acknowledged by the will maker as his or hers, in the presence of two or more witnesses present at the same time, and signed by two or more witnesses in the presence of the will maker.

S 37(2) further provides that if the will does not comply with section 1, then it is invalid unless the court orders it to be effective as a will under section 58, known as the curing deficiency provision of WESA.

S. 58 WESA authorizes the court to order the document that is not comply with the requirements of section 37 be fully effective as though it had been made in compliance with those requirements.
To make such an order, the court must be satisfied that the document represents the testamentary intentions of the deceased.

The court followed the Court of Appeal decision in Re Hadley estate 2017 BCCA 311 that held that the document must be a deliberate or fixed and final expression of intention as to the disposal of property upon death.

Re-Lane estate 2015 BCSC 2162 held that extrinsic evidence of testamentary intent is admissible on the inquiry as to whether a noncompliant document and bodies a deceased intent. The extrinsic evidence of events might include events that occurred before, when and after the document was created.
The court found a number of relevant details that supported a finding that the unsigned and undated document represented such an expression of intention:

  • It was pinned to a bulletin board in the apartment of the deceased where it could easily be found
  • the distribution was rational and a previous beneficiary had died
  • the document directed a division of the residue in certain specific shares with language that mirrored the language of the 1995 will
  • although it was not signed or witnessed the word witness was written near the bottom
  • although the document was not dated there was a reference at the top of the deceased will dated November 16, 1995, and it also corrected a typographical error in the 1995 will
  • the handwriting was reasonably similar to handwriting in a letter entered into evidence
  • the day before heart surgery the deceased said that he had been working on his will, and that his wishes were different from that of the 1995 will