Antrobus v Antrobus 2015 BCCA 288 held that absent knowledge of wrongdoing against their child, bystander parents can only be held liable if they were wilfully blind to the wrongdoing, here of the child’s grandfather.
The Plaintiff alleged that she was sexually abused by her grandfather and brought a successful action against defendants, her mother and father, for damages for negligence and breach of fiduciary duty.
The parents appealed and the appeal was allowed and the action dismissed.
The Appeal Court held that the Trial judge’s findings that the defendants were not credible witnesses could not be sustained and Judgment could not survive those errors, as those findings were crucial in trial judge disbelieving defendants’ evidence concerning their knowledge of grandfather’s past.
Even absent those errors, the trial judge’s finding that defendants knew the grandfather was a pedophile did not withstand scrutiny as in 1960, not even the scientific community recognized that a person having the tendency to act sexually towards children would have that propensity for rest of their life.
THE LAW
In M. (M.) v. F. (R.), 101 B.C.A.C. 97 (B.C. C.A.), this Court discussed the factors that must be considered when a claim is brought against a bystander parent. In M. (M.), the action arose out of a series of sexual assaults inflicted on the plaintiff by the adult son of her foster parent. The claim against the foster mother was dismissed at trial and on appeal. The foundation of the action against the foster mother was, as in this case, negligence and breach of fiduciary duty. The action in negligence turned on the foreseeability of harm.
49 In analyzing the claim, the majority rejected the submission that the only question which could properly be considered was whether a reasonable person would have understood the risk. The Court concluded that, in determining the foreseeability of harm, the proper question is whether a reasonable person, having the background and capacity for understanding of the particular defendant, would have appreciated the risk (at para. 119). Absent actual knowledge of the wrongdoing, a bystander parent could only be held liable in negligence if he or she was willfully blind as to its existence.
50 The Court also noted that a defendant must be judged by the standards of the time in which the events took place. In M. (M.), the events had taken place in the 1970’s but the case had not been brought until 25 years later (at paras. 140-141). The Court found that the foster mother could not be faulted for not having knowledge and attitudes which might be expected at the time of the trial, but were not prevalent at the time that the alleged activity took place. This is a matter of some import in this case and I will return to it.
51 In regards to claims arising out of a parent’s breach of fiduciary duty, the leading authority is B. (K.L.) v. British Columbia, 2003 SCC 51 (S.C.C.) . In that case, the court began with the unquestioned fact that parents owe a fiduciary duty to their children. The question for determination was what actions and inactions might amount to a breach of that duty. In the course of its discussion, the court rejected that liability should be based on an obligation to always act in the best interests of a child. Rather, it found that a breach of fiduciary duty arises when parents put their interests ahead of their children. It explained as follows:
48 What then is the content of the parental fiduciary duty? This question returns us to the cases and the wrong at the heart of breaches of this duty. The traditional focus of breach of fiduciary duty is breach of trust, with the attendant emphasis on disloyalty and promotion of one’s own or others’ interests at the expense of the beneficiary’s interests. Parents stand in a relationship of trust and owe fiduciary duties to their children. But the unique focus of the parental fiduciary duty, as distinguished from other duties imposed on them by the law, is breach of trust. Different legal and equitable duties may arise from the same relationship and circumstances. Equity does not duplicate the common law causes of action, but supplements them. Where the conduct evinces breach of trust, it may extend liability, but only on that basis. As I wrote in Norberg v. Wynrib, [1992] 2 S.C.R. 226: “In negligence and contract the parties are taken to be independent and equal actors, concerned primarily with their own self-interest… [page 433] The essence of a fiduciary relationship, by contrast, is that one party exercises power on behalf of another and pledges himself or herself to act in the best interests of the other” (p. 272).
49 I have said that concern for the best interests of the child informs the parental fiduciary relationship, as La Forest J. noted in M. (K.) v. M. (H.), supra, at p. 65. But the duty imposed is to act loyally, and not to put one’s own or others’ interests ahead of the child’s in a manner that abuses the child’s trust. This explains the cases referred to above. The parent who exercises undue influence over the child in economic matters for his own gain has put his own interests ahead of the child’s, in a manner that abuses the child’s trust in him. The same may be said of the parent who uses a child for his sexual gratification or a parent who, wanting to avoid trouble for herself and her household, turns a blind eye to the abuse of a child by her spouse. The parent need not, as the Court of Appeal suggested in the case at bar, be consciously motivated by a desire for profit or personal advantage; nor does it have to be her own interests, rather than those of a third party, that she puts ahead of the child’s. It is rather a question of disloyalty — of putting someone’s interests ahead of the child’s in a manner that abuses the child’s trust. Negligence, even aggravated negligence, will not ground parental fiduciary liability unless it is associated with breach of trust in this sense.
Trevor Todd and Jackson Todd have over sixty years combined legal experience min handling contested estates and involving narcissistic parents or siblings.
In this age of the “selfie”, social media and general self- absorption, Donald Trump is a textbook narcissist. Narcissism has flourished in Western culture in recent years as witness the long-time success of ridiculously debased reality television and its “stars”.
The clinical definition of narcissism involves “a pervasive pattern of grandiosity, self focus, and self-importance”. When such self-centredness, egotistical and manipulative behaviour are to the extreme, it will likely meet the diagnostic criteria for a Narcissistic Personality Disorder, as defined by the diagnostic psychiatric bible, DSM-5.
Extreme narcissists are abundant in estate litigation .The facts are often so skewered that one can easily conclude that the deceased narcissist is laughing in his or her grave at the hurt and disorder they craftily devised upon their estates. A narcissist will do such things as disinherit an adopted child for seeking out his or her natural parent. They will deliberately leave their estate to charities focused on saving disadvantaged children while having being absent or abusive to his or her own children.
Extreme narcissism such as found in the disorder is something far more extreme than someone who likes to admire them self in the mirror. The extreme narcissist lives in a world populated by two classes of people, “winners and losers” and his or her constant aim in life is to prove they are a winner, and to triumph over losers.
We have all met such people- they are memorable in their nastiness or obnoxiousness, particularly as they age. They invariably die alone, leaving damaged children that they barely concerned themselves enough to lovingly care for.
In the work place they display their superiority and act like the “queen bee or kingpin”. Almost like a spider to a fly the narcissist may be friendly to you one day, then ignore you the next. Often warm and charming on first engagement, they are masters at manipulation and want something from you.
People with high self-esteem have a certain degree of vanity, which overall is a good thing in terms of evolution. Children raised to feel good about themselves by parents who praise their
behaviour do not turn into adults constantly expecting to be worshipped, and in fact are better adjusted than those who are not.
The opposite scenario occurs when parents place conditions of worth on their children, thus making the children feel anxious and uncertain about whether they are in fact “good enough”.
Such parental behaviour can lead to pathological narcissism in adulthood when the individuals try to cover over their insecurities about self-worth, through a variety of self-aggrandizing strategies.
Psychologists do not really agree on the cause of narcissism and feel that it is probably a combination of social environment and parental upbringing. There is agreement however that approximately 6% of North Americans suffer from Narcissistic Personality Disorder and such behaviour is increasing at a rapid pace.
15 Traits of an Extreme Narcissist
A narcissist has a grandiose sense of self importance and will typically exaggerate achievements and talents, and expect to be recognized as superior by others. They are more concerned with being perceived as superior in traits such as industriousness, dominance, and intelligence, rather than ” loser” traits such as agreeableness and honesty.
They are preoccupied with fantasies of unlimited success, power, brilliance, beauty, or sexual prowess- think James Bond for men.
They have an enormous sense of entitlement which typically demands special attention or treatment in all situations and compliance with his or her demands. They frequent estate litigation files and are known as rude customers in commercial transactions.
Narcissists have a” specialness” and uniqueness that is beyond comparison and can only be understood by comparable high class people or institutions. Friends might privately refer to their “Napoleon complex”, while others might say they have delusions of
They are high drama queens that require constant attention and admiration.
Narcissists are masters at manipulation and taking advantage of others to achieve their own ends. They are often charming and engaging on first impression, but in a relationship will never really show you who they really are, until the partner is mired in a toxic and controlling relationship.
They are highly arrogant and haughty to the point of being obnoxious. Any disagreement with their opinion is dismissed as that of a loser who is simply jealous.
Envy plays a big part in their lives in that they are often envious of more famous or rich people, while at the same time believing most people are envious of themselves, or should be.
Narcissists lack empathy for others even desperately in need, and basically only think of If the grief or upset does not directly concern them, then they won’t bother with it.
They are control freaks and are never wrong. Losing control makes the narcissist very upset as they need to have control of people and their surroundings. Control gives them a sense of security and these self centered types only enjoy people who don’t question their authority. An extreme narcissist will argue that black is white until even you begin to believe it.
They don’t do anything if it does not directly or indirectly benefit themselves. They only surround themselves with attractive and “upper-class” people that make them feel more superior and invincible. They would never be seen with an unattractive or un-wealthy crowd.
They do not take orders from others, and when ordered by others, may often plot revenge, as orders are a threat to their egotistical self-esteem.
Narcissists do not like to express or show feelings. They are typically your cold unloving parent(s). They have been known to use their lack of empathy for others to inflict physical and/or mental cruelty on others, particularly their children.
They do not give compliments or act polite in society. A narcissist expects to be complimented, and if you receive a compliment from a narcissist, you should be suspicious. Their high sense of superiority allows them to ignore certain norms and rules such as common courtesy.
They do not listen nor much care what others have to say, as they only want to dominate the conversation.it is a fact of life that family loved ones, co-workers, longtime friends, spouses or bosses can be narcissists and thus more than a challenge to coexist with.Narcissists do not want to change, they see nothing wrong with themselves, and invariably will contentedly live in their world of self absorption and importance.Narcissists are good for the estate litigation and that’s about all.
In order to have a continued and reasonably healthy relationship with such a person, the interactions must be limited, or even kept to a far, all the while resisting their continued manipulation and grandiosity.
Simply put, narcissists are toxic people that will invariably draw you into their vortex of self absorption -they are best loved from afar.
Sibling Greed After Death is an excerpt taken from a longer article I have written on the topic of just how greed enters the equation amongst siblings after the death of a parent, especially the last one.
It is almost guaranteed that upon the death of the last parent, every resentment—real or perceived—dormant or simmering under the skin of a child, will erupt; the way it manifests is generally in terms of possessiveness, jealousy, spitefulness, argumentativeness, and greed. Often the issue is not even about material possessions but rather the explosion of a culmination of years of often-repressed hurt feelings.
The traditional family unit has continued to erode over the last 50 years. As a result, directly or indirectly, there are likely more dysfunctional families than functional. The blended family concept remains problematic, not to mention litigious, and there has been a marked increase in sibling estate litigation.
Greed is often seen to manifest itself in dysfunctional families when individuals have had negative experiences in childhood such as the death of a parent, drug or alcohol additions, or a narcissistic parent where nurturing has been lacking—a step-parent who has not bonded, paid caregivers, or the use of television as a child-minder. The lack of a nurturing environment and the experience of having to go without something so essential to a child appears to have a very detrimental effect going into adulthood.
It might be said that every estate litigation file has an element of greed to it and often a significant amount but, in my experience, most siblings seek only a” fair and equitable” share of their parents’ inheritance and have great difficulty accepting that one or more sibling will inherit a greater share in the absence of a reasonable and rational reason.
Greed demolishes “the equity” siblings seek from their parents. There cannot be family harmony if one or more siblings receive the bulk of an inheritance from the parents, to the detriment of the remaining siblings.
In 40 years of dealing with inheritance litigation, I note that most sibling disputes can be rather simplistically reduced to the perception that where one sibling inherits more money than another, that sibling was simply loved more by the deceased parent. That is an intolerable insult for the sibling who received less. Money and asset division are equated with the level of parental love and approval.
There are so many people asking themselves the same question on a regular basis- how does one survive abuse at home?
There is no easy answer or probably even a winning formula.
Some children simply cannot win no matter what they do amongst the family, starting at an early age, and it never goes away and is usually “bought into” by siblings and other family members who go along with the notion.
My worst case was a teenage girl who told her parents that her grandfather had sexually abused her. She lived at home during her early teenage years under such conditions.
She was not only disbelieved, she remained shunned within her own family for years, with no sibling or parent allowed to talk or acknowledge her
The child then becomes a black sheep/scapegoat and the source or blame of all things wrong in a dysfunctional family.
I have other articles on the blog that go into more detail about narcissistic parents and other reasons for dysfunction in families, but the bottom line for the individual is that if you stay in the family, you remain the source of all things wrong, and if you leave the family, then you have deserted them and remain an outsider forever.
Medical advice seems to lean towards you cannot change your family, so save yourself by getting away from their poisonous ideas.
My only caution in doing so, is that you do so on the written advice of a counsellor or doctor, share it in some detail and history in writing with the family, both of which may make it more difficult to disinherit you on the basis that you estranged yourself from the family.
It is very common in estate litigation for adult children of the dementing parent to litigate in order to have the court determine which party should be appointed the legal representative of the incapable parent, and be appointed the committee.
Although the Public Guardian and Trustee does not want the work if there are appropriate family members to do it, it occurs on occasion that the only sensible party that is neutral and that who will represent the best interests of the patient is not a family member but instead is a government institution known as the Public Guardian and Trustee.
Such was the decision reached in re Tompkins 2009 BCSC 1968 where both daughters of an 82-year-old mother who is suffering from the men tear, held her power of attorney while both agreed that their mother wanted them equally involved in handling her affairs. However when one sister brought on an application to be appointed committee of her mother’s affairs, the application was opposed by the other sister, who instead propose that the Public Guardian and Trustee act as committee.
The court found that given the daughters and ability to communicate with each other, as well is a dispute as to entitlement to various monies advanced from the mother to one daughter only, the court found the appointment of the Public Guardian to be in the best interests of the patient.
The Court
[21]I conclude that although the circumstances are different, the observations of Lamperson J. in Re Newton, 2005 BCSC 677 at paras. 7 and 8, are apposite to the case at bar:
[7] The test that is used in deciding who to appoint as committee is “the best interest of the patient”. Generally, this requirement is best met by appointing a competent and caring family member, who, as opposed to an institutional trustee, is more in tune with the immediate needs of the patient. Account must be taken of the fact that there may well be merit to Richard Newton’s assertion that the public trustee has not been particularly responsive to Dorothy Newton’s immediate personal needs, or attending to measures that must be taken to preserve her estate.
[8] Unfortunately, there is a major rift in the family. Each side questions the motives of the other. This court is not in a position to comment on the sincerity or integrity of any person involved in these proceedings, but given the division within the family, the appointment of Richard Newton or Robert Newton as committee, would inevitably invite further difficulties, acrimony and expense. Dorothy Newton is in an extended care home where most of her needs are met. None of the petitioners are prevented from concerning themselves with their stepmother’s needs, even if the public trustee is the committee. Thus, in the circumstances, it seems best to preserve the status quo.
Trevor Todd and Jackson Todd have over 60 years combined experience in handling contested wills and estates, including acting for victims of family abuse that turn them into either a black sheep or a scapegoat or both.
Contested estates in BC are rife with black sheep and scapegoats.
The purpose of this article is to examine that phenomena. It crosses virtually all aspects, boundaries, and strata of society. More likely than not, when each family sits down for a traditional celebration, at least one person is conspicuous by his or her absence—or presence.
Webster’s dictionary defines a black sheep as “a person who causes shame or embarrassment because of a deviation from the accepted standards of his or her group.”
The same dictionary defines a scapegoat as “a person or group made to bear the blame for others or to suffer in their place.”
Neither black sheep nor scapegoat is defined in legal dictionaries. Although there are several references to those types of individuals throughout case law, most do not try to define the concept.
A psychologist might define a black sheep as a member of a rigidly triangulated family who holds the rest of the family tightly together by being identified and assigned the role as the bad/problematic/deviant one who causes all the family’s problems.
The ruler of the family typically initiates the charges and thereafter assigns both label and blame. Siblings often simply buy in, initially as a route of least resistance, and perhaps out of self-defence so as not to become the target, and then ultimately as believers of the alleged faults.
Psychologists report that many black sheep/scapegoats will attest to the fact that they were singled out for blame or humiliation at an early age, with no explanation or reasoning for the decision offered to them.
Black Sheep v. Scapegoats: What’s the Difference?
Although there are different origins for the strict meanings of black sheep and scapegoats, for the purposes of this article, within the context of dysfunctional families, I shall use them almost interchangeably.
For the sheep, the term originated from the fact that the occasional black sheep would be born into a herd of predominantly white sheep; the black sheep were far less marketable. At times they were even considered religiously sinister.
A black sheep with its recessive gene literally and figuratively stands out in the white flock.
In dysfunctional families, black sheep are often viewed and treated as scapegoats within the family. Scapegoating involves the practice of singling out a party for unmerited negative treatment or blame; it can be likened to bullying.
In the context of dysfunctional families, the similarities between black sheep and scapegoats include the projection of feelings of blame, aggression, hostility, frustration, hurt, and so on upon one person. That negative behaviour is dramatically out of proportion to what might conceivably be warranted. The process of scapegoating provides a psychological boost to the perpetrator who uses that method to channel his or her own anger and frustration through the victim.
Dysfunctional families typically allow the scapegoat to remain in the family until he or she dares to speak up or complain, then the person is ostracized. Wild distortions of the truth are always prevalent.
The Inherent Problem of Dysfunctional Families
Dysfunctional families are almost the norm these days. By definition they have poor insight into their own behaviours and problems and will do almost anything to project “normal.” In reality, such families are frequently crippled by their poorly contained fears, addictions, mental disorders, and insecurities.
In this “Alice in Wonderland” topsy-turvy distorted version of family life, dysfunctional parents often avoid the obvious and very real problems within their families and instead choose a scapegoat child upon which all faults, problems, and family dysfunction are heaped.
This whipping boy (or girl) can seemingly never escape the assigned role, often delegated early in life and enforced by family pressure placed upon the other siblings to go along.
Another troubling aspect of the black sheep/scapegoat syndrome is that scapegoats who remain in this role usually find themselves perpetuating the syndrome in their own families because it is a learned behaviour.
Should the Black Sheep/Scapegoat Leave the Home?
The destiny of the black sheep/scapegoat is invariably to leave the family home, often on the advice of a counsellor or doctor. Counsellors profess that distance is by far a healthier option for those individuals in terms of recovering from the humiliation, shame, and self-loathing that has been their experience within the family.
It is interesting that the black sheep/scapegoat syndrome does not diminish over time; the individual(s) continue in the role as the root of all the family’s difficulties, even in absentia. The family is compelled to continue to assign blame and project shame onto the person(s) on whom the dysfunctional name tag is hung. Take for example the black sheep child who returned after a 25-year absence to reunite with her father before he died of lung cancer, only to be told by him to get out of the room because she had caused his lung cancer. The man had smoked for 50 years.
Estrangement and the Wills Variation Act
As previously stated, one of the overwhelming commonalities between a black sheep and the scapegoat is that they are often advised by medical practitioners or counsellors to learn to distance themselves from their family, for their own mental well-being.
That is based on the probable reality that the family’s behaviour as a group will never change. The ostracized child will continue to be abused psychologically and be unable to escape or change the role he or she has been assigned.
When testators disinherit a child on the basis of non-contact for many years, alleging estrangement, it may well be that a valid Wills Variation claim should or will override the defence of estrangement if the long-term minimal or total absence of contact was based on the advice of a medical doctor or a qualified counsellor.
It would particularly assist the disinherited victim if such medical/counselling advice were passed onto the family members who were causing the continuing abuse, on or after family counselling has failed. At least records would be available to show attempts were made at reconciliation.
The common consensus of the general public, and even some judges, is the view that the black sheep or scapegoat should simply never give up at attempting to reconcile with the family, and that the fault must be with the ostracized one, not the family. Thus the scapegoat is victimized not once, but twice.
It is inconceivable for anyone raised in a “normal” environment to comprehend that an estrangement could occur for anything but valid and rational reasons. In my practice, the majority of estrangements are almost always the result of petty issues and irrational reactions to them.
Court Awards for “Scapegoat Abuse”
A.D.Y. vs. M.Y.Y. and D.E.Y. (1994) 5 WWR 623 involves a case of egregious physical and mental abuse. His parents subjected their child to years of physical and mental abuse during his troubled childhood, in which he was, inter alia, hyperactive.
The plaintiff recovered damages of $260,000 in his action against his parents for damages for assault, battery, false imprisonment, and intentional infliction of mental suffering.
The term “scapegoat” was used by the expert witness. Dr. Briggs’ opinion is that the plaintiff was the family scapegoat.
No one will disagree with the fact that [A.]’s family experienced periods of considerable stress during [A.]’s 12 years of living within the family.
There will be some dispute as to [A.]’s contribution to that stress because of his Attention Deficit Disorder and hyperactivity, and his induction into the role of family scapegoat. There will be considerably more disagreement as to whether the problems [A.] presented (both because of his disorder and because of his reactivity to family stress and their management of him) justified measures taken against him that were unusually harsh. These measures were carried out in persistent and extreme ways to the point of becoming ritualized punishment and degradation in the name of management and behavioural control. A long term pattern of physical and emotional abuse is evident, carried out both by [A.]’s parents directly and indirectly by their promoting and endorsing physical and/or emotional abuse by certain of [A.]’s siblings.
Conclusion
Black sheep/scapegoats are often, not surprisingly, disinherited by their parents. The view of the black sheep/scapegoats is that they were singled out as very young children to be blamed for things that were neither their fault nor in their control or the accusations simply were not rational.
Those types of dysfunctional situations can arise in almost any type of home, but in particular in homes where there are narcissistic parents and/or alcohol, drug, or mental issues.
If a black sheep/scapegoat learns he or she is to be disinherited, the person should seek legal advice, as well as medical and psychological counselling to ascertain whether it would be in his or her best interest to attempt a reconciliation with the dysfunctional family, given the individual’s own history.
For many black sheep/scapegoats, there are simply two choices.
1. No family contact
2. Continued abusive family relations
While every child craves parental love and approval and vice versa, in the world of the dysfunctional family that is an impossible illusion, especially for those assigned black sheep/scapegoat status.
Sommerville v Sommerville 2014 BCSC 1848involved a court application wherein the deceased gave both his surviving widow and his daughter separate powers of attorney that could be used individually.
The facts are somewhat complicated given that the husband and wife entered into a marriage agreement whereby they would each maintain separate bank account investments and property, together with separate liabilities.
The problem arose later in life when the male deceased, who had always had a substantially higher income, begin to develop dementia with increasing concurrent monthly expenses.
Legal issues before the court included should his personal health care expenses be paid firstly from his monthly pensions, .and which attorney should be the sole attorney responsible for managing his financial affairs and insuring his bills are paid in a timely fashion, along with other family type issues and dynamics.
The court examined the provisions primarily of sections 18, 19 and 20 of the new Power of Attorney act, starting with the duties of attorney as set out in section 19.
The duties of an attorney
[32] An attorney acting under a power of attorney is bound by the duties set out in the instrument. In this case, the Power of Attorney allows both attorneys to act separately to do on Craig’s behalf anything that he can lawfully do by an attorney and to transact business with any financial institution or investment dealer. The Power of Attorney is enduring, as it remains exercisable during periods of mental infirmity, and it is not subject to any conditions.
[33] A power of attorney is a type of agency and the relationship between the attorney and the donor is a fiduciary one. This stems not only from the agent-principal relationship but also from the indicators of a fiduciary relationship described in cases such as Frame v Smith, [1987] 2 SCR 99; Egli v Egli, 2004 BCSC 529, aff d 2005 BCCA 627; McMullen v Webber, 2006 BCSC 1656; Houston v Houston, 2012 BCCA 300.
[34] In Egli, Garson J (as she then was) discussed the attorney’s duty to use the powers granted only for the benefit of the donor:
[82] It is the attorney’s duty to use the power only for the benefit of the donor and not for the attorney’s own profit, benefit or advantage {Chapman). The attorney can only use the power for his or her own benefit when it is done with the full knowledge and consent of the donor (Robertson, Mental Disability and the Law in Canada at 183). I am not aware of any authority that detracts from this principle in circumstances where the benefit is conferred on family members.
[37] While the duties of a committee and an attorney may be similar, I do not agree that the jurisprudence regarding a committee’s duties under the Patients Property Act are applicable to an attorney’s duties under a power of attorney.
[38] Prior to the enactment of the Power of Attorney Act in 2011, the duties of an attorney were founded at common law and equity. As stated in Egli, an attorney’s duty is to use the power only for the benefit of the donor, which is consistent with the characterization of the relationship as a fiduciary one.
[39] An attorney’s duties are now enunciated in s. 19 of the Power of Attorney Act. Section 19 (1) essentially codifies the duties of a fiduciary to act honestly and in good faith, to exercise reasonable care, and to account to the donor, within the authority granted in the power of attorney.
Section 19(2) specifies that an attorney making decisions about the donor’s financial affairs must act in the donor’s best interests, taking into account the donor’s “current wishes, known beliefs and values” and any directions contained in the instrument, and s. 19(3) requires an attorney to give priority “to the extent reasonable” to meeting the personal care and health needs of the donor.
[40] I would not equate the power of an attorney under s. 20 to make or receive gifts with s. 18 of the Patients Property Act. Section 20 is quite specific. If permitted in the power of attorney, the attorney may only make a gift if all three conditions in subsection (1) are met:
the adult will have sufficient property remaining to meet the personal care and health care needs of the adult and the adult’s dependants, and to satisfy the adult’s other legal obligations, if any,
the adult, when capable, made gifts or loans, or charitable gifts, of that nature, and
the total value of all gifts, loans and charitable gifts in a year is equal to or less than a prescribed value ( currently $5000), and is prepared to use funds from his cash investment account for special expenses such as capital improvements
Section 19(4) of the Power of Attorney Act requires an attorney to keep the donor’s property separate from his or her own property. Under s. 19(5), this does not apply to property that is jointly owned by the donor and the attorney as joint tenants, unless the power of attorney states otherwise. While Craig’s pensions, as assets, are his own property, it is not clear to me that the monthly income from those pensions that he directed to be paid into the joint bank account retains the same character. However, whether those funds are deposited into the joint account or into a separate account for Craig is not the primary issue here.
Accordingly the court held that the pension income of the deceased be deposited in joint account with the stepmother/ widow him him him him and used for the husband’s expenses, and any surplus could be used by the stepmother for her own expenses, based on their the evidence that this was an arrangement that the husband had in place both pursuant to the marriage contract, and their marital behavior, before he became mentally incapable.
The court further gave directions as to what roles competing powers of attorney can do in relation to spouses assets.
After 42 years of Vancouver estate litigation, I have noted that the top ten most common, but certainly not the only claims, are the following, in no particular order:
Mental Capacity, Undue Influence, Wills Improperly prepared or signed, Wills Variation claims, Intestacy Issues, Gifts vs Resulting trust claims, joint bank and investment accounts, unjust enrichment and constructive trust claims, breach of fiduciary duty and lawyer’s negligence.
1. MENTAL CAPACITY
Legal test for capacity Banks v. Goodfellow 1870
The WIll maker must understand that a will is being made and that it disposes property on death; must know the nature and extent of his property; must understand who has an appropriate claim upon his property; must be free of delusions that affect his decisions, ie, be of sound mind, memory and understanding; Lager v. Poirier SCC
“the mind must be able to comprehend of its own initiative and volition” at the time that instructions to the lawyer are given;
However: a will was recently upheld where the testator thought he was being poisoned by gases into his apartment, as he knew what he owned and what he wanted to do with his estate, and who he had to provide for;
Problems encountered: – no standard method of assessing capacity – variety of testing and types of causes of dementia – problems testing due to language, customs, hearing or sight losses – medical history/records important – Dementia not well recognized even by doctors/health professionals or professionals – people good at covering up, or having things done for them – most people, including health care, underestimate degree of cognitive impairment – well settled that a proper assessment cannot be done from superficial discussions – must be “probing of the mind” – typical indications – short term memory loss, paranoid ideas to family, confusion, difficulty with self care/finances – disorientation to time/person/place, problems recognizing, easily swayed in opinion
2. UNDUE INFLUENCE
This is an influence that is exerted over the mind of another that amounts to coercion of the other’s free will so as to control the other’s mind, ie, an extreme example is a cult leader.
– demented people are very vulnerable to mental pressure – hard to prove, look for “suspicious circumstances” – a recent article listed 64 examples of such “suspicious circumstances” – the propounder of a will has to prove proper execution of the will, knowledge and approval of its contents, and mental capacity where there are circumstances that are suspicious, rather than it being presumed that the testator knew and approved of the contents of the will – individuals are frequently taken advantage of by care-givers, family, acquaintances, salespeople or power of attorney holders – where there is a special relationship such as a doctor/patient, lawyer/client, care-giver, parent, child, etc., the B.C. Court of Appeal did in May 1998 rule that there is then a presumption of undue influence that shifts the burden to the defendant to disprove it.
3. WILLS ISSUES
Requirements of a valid will:
must be in writing must be signed at the end by the testator, and witnessed by 2 or more individuals, all 3 signing in the presence of each of other must purport to deal with the property of the testator
Common mistakes: beneficiaries or spouses of beneficiaries cannot witness the will or the bequest is invalid – marriage after the will is executed will revoke the will – the witnessing procedures are frequently not properly carried out – a failure to dispose of the estate or part of the estate – using incorrect/vague/contradictory language – using precise words such as “issue” or words such as “per stirpes” which have been interpreted by the Courts to have different meanings
4. WILLS VARIATION ACT
Under British Columbia law spouses and children of a deceased have the right to contest an estate on the basis that the deceased parent or spouse failed to “make adequate provision for their proper maintenance and support”.
In the near future a Court challenge will be made to the Wills Variation Act by a common-law spouse, who currently does not have the right to bring such an action.
There has been a hugh increase in the number of these claims, especially by adult children who have been disinherited.
Applies to any assets owned by the deceased that pass under a valid will and form part of the deceased’s estate – it does not apply to property that passes by right of survivorship such as a joint tenancy, insurance, or pensions where there are named beneficiaries and so forth.
The Court has a wide discretion to vary a will in any manner that it thinks just.
The Court may also take into account evidence of the testator’s reasons for not making adequate provision for the spouse or child that is contained in a statement in writing signed by the testator.
The action must be brought within 6 months from the date of the granting of Letters Probate.
The test with respect to a testator and his adult children is that of the “judicious parent”, and a parent has a moral obligation to provide for his or her children. If the children have estranged themselves, then the testator may not have to provide for the children. The test is that of the judicious parent or spouse, not necessarily a kindly one, as to what he or she should have to provide in order to discharge the marital or parental duty, having regard to both economic and moral considerations.
In a Supreme Court of Canada land mark decision Tataryn v. Tataryn 1994, a wife of 43 years was not adequately provided for in the deceased’s will. One son was provided for generously and another son was disinherited.
The Court found that it should search for “contemporary justice”. It held that a testator has a legal obligation to provide for his or her spouse, and only a moral obligation to provide for adult children. Legal obligations take priority over moral obligations. If there are sufficient assets, then both legal and moral obligations should be met.
The Courts acknowledge that a testator should be free to dispose of his or her assets as he or she sees fit, but the Court will interfere to vary a will where it is appropriate.
In Tataryn the Court held that as a minimum, the widow should get what she would have received had the parties separated, as well as some extra monies in the form of maintenance for her twilight years.
5. INTESTACY ISSUES
See my recent blog on WESA and Intestacy as the rules have recently changed,
They are dated March 7.14, March 9 and 10, 2014
Separation of spouses for one year prior to death disqualifies the surviving spouse from taking deceased’s spouse estate on an intestacy.
6. GIFTS vs.RESULTING TRUSTS
This area of the law usually deals with a purported gift of an asset by one individual to another.
Resulting trusts arise in 3 instances:
where the individual gratuitously transfers the assets; where the individual supplies all or substantially all of the purchase price; where the individual puts his/her property into another’s name and the other person gave no consideration (ie, paid no monies);
The lack of consideration is the common element – the individual must therefore have intended the recipient to hold the asset in trust and that at some point it will go back to the transferor, as the law of equity assumes bargains not gifts. This presumption can be rebutted on a balance of probabilities but the onus rests on the volunteer to show that it was a gift. If the transferor and the transferee have a close relationship at the time of the transfer, the presumption is weakened and slight evidence will be required to rebut it. The evidence will be confined in time to the date of the transfer and may be written, verbal or circumstantial.
A resulting trust will not be presumed if the transfer was to a wife or child, then the onus will remain on the person who asserts the trust or was from a common-law husband to a common-law wife, or was from a father to a child (and presumably will include mother to child) or was from a step-parent to a step-child.
7. JOINT BANK ACCOUNTS
Generally when an account is opened in the name of 2 or more persons, if the holders are joint tenants, then the survivor has the right to the whole amount. However, in equity the beneficial title is the issue:
who has the right to the income and capital while both joint tenants are alive; is there a right of survivorship;
Typically when both joint tenants have deposited monies into account, then the survivor is entitled to the proportionate deposits. Where only one of the joint tenants deposits money into the account, then a presumption of resulting trusts arise.
There are a number of decisions that have held that the bank document giving right to the purported right of survivorship is merely for a matter of convenience and it is always a question of intention, that must be proved by evidence. The Supreme Court of Canada has held that the bank form giving rise to the purported right of survivorship does not necessarily evidence a depositor’s intention to make a gift of the account.
8. CONSTRUCTIVE TRUST (UNJUST ENRICHMENT)
This also is a very big growth area in estate law. The situation typically applies to common-law spouses, same sex spouses, or any one who has been in a “relationship” with another and there has been:
an enrichment enjoyed by one party; a corresponding deprivation suffered by the other party; an absence of any juristic reason for the deprivation/enrichment;
There have been a number of Supreme Court of Canada decisions such as Peter v. Beblow that have extended the claim for unjust enrichment to include contributions of homemaking and child care services, rather than the traditional test of financial contribution. The Supreme Court of Canada recently in Soulos held that the test for constructive trust is now “good conscience.”
This law has in recent years been applied to same sex relationships.
Constructive trust claims have been and will continue to be more prevalent.
Constructive trusts may also arise in other circumstances than common-law or same sex relationships, such as mutual wills. A constructive trust may be imposed on the survivor of the parties if it can be shown that there was an agreement between the parties not to revoke their wills and to dispose of their property in a particular way if the survivor has broken the agreement and has made another will.
9. BREACH OF FIDUCIARY DUTY
A fiduciary relationship is one in which there is a duty to one person, the fiduciary, to act on behalf of another person with respect to property which is the subject of the relationship. Where there is a fiduciary relationship, then the fiduciary must act honestly, impartially and cannot personally benefit other than for prescribed fees for services. The fiduciary is bound to protect the interests of the beneficiary, and cannot act in a conflict of interest, nor personally benefit. Fiduciaries are typically lawyers, bankers, directors, or any other person in a high position of trust.
A person using a power of attorney cannot use that document to personally benefit him or herself, or this will be a breach of fiduciary duty.
There is an onus on the fiduciary to prove that he or she acted properly when called into question.
10. LAWYER’S NEGLIGENCE
A lawyer is under a duty of care to carefully consider a client’s mental capacity and the thoroughness required is proportionate to the gravity of the transaction:
A lawyer owes a duty to his client to draft a will in accordance with the instructions, and to provide all required advice and attend to the execution of the will expeditiously given the circumstances – the responsibility to carry the client’s wishes extends to an intended beneficiary ( the disappointed beneficiary) who may be foreseeably deprived of a inheritance by the lawyer’s negligence.
A lawyer may breach his duty by failing to enquire, if appropriate, into: obtaining a medical certificate; probing the client’s mind; properly recording notes; looking for suspicious circumstances; allowing interested parties to be present during the interview; failing to take steps to test for capacity; taking instructions from a beneficiary and not confirming same with the testator; a common area of lawyer negligence is missing a limitation date, ie, failing to commence a Wills Variation action within 6 months from the date of probate.
There is a noted estrangement epidemic amongst dysfunctional families
“Family quarrels are bitter things. They’re not like aches or wounds; they’re more like splits in the skin that won’t heal because there is not enough material.”
F. Scott Fitzgerald
Estrangement is the turning away from a previously held state of affection, comradeship, or allegiance by one party to another or, alternatively, the parties to each other. The meaning has not changed much from its Latin root extraneare, to treat as a stranger.
The phenomenon of children being estranged from one or both parents has risen dramatically in recent years.
Anecdotally, after 40 years of estate litigation practice, I have witnessed the gradual erosion of the family, starting with the divorce laws of 1968 and moving through the social acceptance of common law relationships, children out of wedlock, “blended but lumpy families,” same sex marriage, and so forth. Legally speaking, the times are achanging.
In recent years, I have noted what I consider a silent epidemic of estrangement between parents and one or more of their adult children. In fact estrangement among individuals in families is far more common than most people believe.
We follow the estrangements of movie stars with glee and interest—Lindsay Lohan got a restraining order against her father; Jennifer Anniston stopped talking to her mother in 1996 when her mother wrote a tell-all book; the Tori-Spelling-of-the-week is not talking to a parent or vice versa. All those behaviours foster irreparable estrangement among various family members.
Family estrangement is found everywhere in society, from the wealthiest to the poorest. Although there is a shocking lack of statistics available on family estrangement, contemporaries in other fields, such as family counsellors, report a tremendous increase in the number of family members who no longer communicate with each other.
I believe that estrangement is so painful for the parties involved that often, they do not wish to talk about it.
Family estrangement occurs when certain family members come to an impasse in their relationship. The subject cause or causes of the estrangement, whatever they may be, are so strong, certain family members separate for a long period of time—possibly even for the rest of their lives.
There may be very valid reasons for such estrangement, such as when sexual abuse has occurred upon a child who is then not believed by either parent. A child frequently flees from the family simply to get away from one nightmare that often leads to another on the street.
Family estrangement is never easy for anyone, both within and outside the family.
In my experience as a lawyer, when estrangement occurs, the reasons are usually very understandable, troubling, and valid. The departing family member often has been very badly emotionally damaged in the relationship.
The reasons for estrangement are as diverse as the parties involved. Sometimes there was a very close relationship in the past and something happened that created distance. It may have happened slowly over time or rather suddenly, but once that distance was created, it solidified into estrangement. Alternatively, the relationship was never as close as it could or should have been and the gap just kept getting wider, until there was no relationship at all.
I couldn’t possibly list all the causes for family estrangement. Here are a few significant ones.
1. Intolerance
Intolerance usually manifests in the sense of disapproval of lifestyle choices such as homosexuality; marrying outside a person’s religion, race, nationality, or ethnicity; or another perceived disrespect. Intolerance can lead to stubbornness and small-mindedness when it comes to giving up a grudge or to pettiness and nastiness when it comes to forgiveness.
2. Divorce
Divorce arguably may be the single-most-common cause of family alienation. However amicable the divorce seemed to the parents, resentments can run deep and some children never get over it. Children may wish to live with one parent as opposed to the other. The malice of one parent turning children against the opposite parent can lead to unwarranted estrangement between the child and the “bad” parent or even both parents.
3. Remarriage
Remarriage, especially by the custodial parent, that creates a “blended family” has certainly caused a great number of estrangements. Distance among “first family” members and “second family” members or even a third is quite common, even when people are not cohabiting as a family unit.
4. Personality Disorders
Some parents never intended to be parents; they resented their children and thus were toxic parents. Living with a parent with a narcissistic personality disorder is exceedingly difficult for a child, who invariably fails to win the parent’s approval, let alone love.
5. Illness and Negative Behaviour
They include mental illness, drug and alcoholic addiction, and household violence.
6. Erosion of Self-Esteem
They include neglect, unconcern, and constant humiliations, disappointments, and putdowns.
7. Priorities and Time
Both parents are working and have little time for the children.
8. Unresolved Encounters
They include a long series of rather minor but escalating misunderstandings and overreactions and general stubbornness on both parties to make amends. While the cutting of ties between family members can be surprisingly easy, reconnecting them can be difficult if not impossible to restore.
9. Recurring Family Arguments
Arguments during significant holidays such as Thanksgiving and Christmas can lead to repeated hostilities, further family division, and avoidance of the special occasion in future.
10. The Unaccepted Spouse
When the marital partner has not been accepted by the family, it becomes awkward for everyone and easier for the estranged party to stay away.
11. An Estrangement Syndrome
Psychologists note that estrangement may be passed from generation to generation, due to the negative role models of the parents. In other words, if you are estranged from your parents, odds are your children will become estranged from you once they become adults.
In a dysfunctional family, the children typically do not receive enough love and care and often end up by default in competition with each other for those necessities of life.
Later, when the parents die, the competition for love may convert into one or more children taking the parents’ money to the exclusion of other siblings, out of a distorted belief they deserve the money. In the mind of the perpetrator(s), the money-grab becomes the substitute for the lost parental love.
As children, we don’t get to choose our family but, as adults, we can decide whom we wish or don’t wish to have in our lives. Even in the best of circumstances, being a member of a family is often a challenge.
To those readers who are estranged from their families, I would encourage group counselling and chat forums to deal with the pain and hopeful reconciliation and healing. That is often easier said than done as it takes a willingness on at least two sides to complete a successful reconciliation.
At age 37, actor Jack Nicholson learned that the person he had known as his life as his sister was actually his mother, and his “mother” was actually his grandmother. By the time he learned the truth, both had died without ever telling him the truth.
Closer to home, a Quebec born friend who was 21 years old, suddenly learned she was actually 23 years old. Her baptismal certificate had been forged by the village priest to hide her premarital conception. In our practice we have had DNA cases disclosing the existence of long hidden children and recently a case where the deceased made a deathbed confession to his wife and family about his second wife and 12-year-old daughter. It is a rare family with no skeletons in their closest. There are a myriad of reasons why people decide to hide details of a shameful incident, illicit relationship or other personal issue.
Many families have secrets and their nature varies considerably. They may involve infidelity, mental illness, sexual orientation, illegitimacy, substance abuse, physical or psychological abuse or any other of the myriad of human potential frailties. The non-disclosure sometimes takes on an energy of its own. Those kept in the dark may sense something unusual but not be able to put their finger on it. Some secrets go to the grave, while others are ultimately disclosed. Family members may lose their filters with dementia, or simply decide to unburden themselves at last. Historical secrets are still emerging today–for example, President Jefferson’s impregnation of a black servant. A descendent recently came forward to break that secret, now centuries old.
THE FOUR TYPES OF FAMILY SECRETS
John Bradshaw in his recent book “Family Secrets “describes four different categories of secrets: Secrets involving criminal activity, the more egregious the crime, the more likely the suppression. Secrets involving addictions such as substance abuse, eating disorders, gambling or chronic infidelity; Secrets involving family enmeshment issues which would include scape-goating individuals , infidelity, cruelty and mental illness; Individual secrets primarily harming the individual seeker holder relating to a self perceived shame , usually relating to guilt, anxiety, cultural shame, inferior education or social economic background.
A HISTORY OF HIDDEN SHAME
Deborah Cohen traces family secrets in a book: “Family Secrets: Living With Shame From the Victorians to the Present Day”. Ms. Cohen apparently spent several years researching her book, primarily because secrets proliferated everywhere she looked including the archives, courthouses, memoirs, personal letters, diaries, to court actions. Times have changed and events that were branded with a dreaded stigma a century ago, may hardly raise an eyebrow today. A child born “on the wrong side of the blanket” in Victorian times could shame the entire family. Indeed until relatively recently, pregnant young women were hustled off to homes for unwed mothers. Many parents now in their sixties have been reunited with biological children given up for adoption as infants. A widespread secret was sexual abuse in the home. Victims of this abuse have increasingly come forward, been believed and been validated. With the advent of home reality shows such as Jerry Springer, it is clear the current generation shares their secrets much more freely. With the advance of social media, including Facebook and Twitter, it is increasingly difficult to keep anything secret.
WHY FAMILY SECRETS ARE HARMFUL
According to some schools of thought, secrets may damage the well-being of the entire family because they destroy trust and healthy communication. In our experience, secrets sometimes ignite feelings of betrayal and resentment which encourages estate litigation. Family secrets may create a false sense of reality, especially among young children learning the world through adults. When such children grow up and finally learn they have been misled all their lives, they may well feel betrayed. For example, a fomer client was shattered to learn at 50, that his father was not his father at all. Perhaps worse yet was his realization that his family had lied to him all of his life. Experts believe suppressing traumatic secrets can result in stress, guilt, anxiety leading to physical and mental difficulties. No one is immune—neither the keeper of the secret nor those who live with that person. It seems many of our estate litigation clients come from dysfunctional families where secrets are the norm. What is especially disturbing to clients are cases where they learn after a parent’s death that a sibling has been secretly helping themselves to the parent’s monies before their death. Those who have money to litigate often do and the courts will scrutinize these transactions very carefully. In general terms however, it seems the risk of estate litigation is dramatically reduced if there is open communication rather than secretiveness which breeds a sense of betrayal and resentment.
CONCLUSION
While it is a rare family that does not have some form of “skeleton in the closet”, secrets create a vicious circle of hidden shame. Evasion is used to protect the myth. The only beneficiaries are often the lawyers hired to represent the litigants seeking redress once the family secrets are exposed.
There is a noted estrangement epidemic amongst dysfunctional families