When The Presumption of Undue Influence Arises

When The Presumption of Undue Influence Arises

Burkett v Burkett Estate 2018 BCSC 320 held that the presumption of undue influence in gifts arises in circumstances where the relationship between the parties gives rise to the potential domination of one party by another, and once established that the potential for undue influence exists, the onus then shifts to the defendant to rebutt and show that the plaintiff entered into a transaction favoring the dominating party as a result of his own “free, full and informed thought.”

The Burkett decision set aside a transfer of land on the basis of resulting trust and undue influence.

Undue influence is generally not found by the courts unless the transferor had diminished mental capacity, but this is not always required as in the situation of a cult for example, where one person is in a position to dominate others who are not mentally incompetent.

In this decision the elderly mother of three sons in 2010 executed a transfer of her property to son A, and made a codicil to her will removing son C as co-executor.

The mother suffered from dementia in 2010, a condition which she attempted to mask.

The son did not register the transfer until 2013 when the mothers dementia had become apparent and significantly worse.

The court found that the mother lacked capacity to affect changes in her estate, and declared that son a held the property in trust for the mothers estate and removed him as executor.

The mothers previous 1997 will left all of her property to her three sons equally, and the plaintiffs were the children of one son who had predeceased his mother and who were entitled to their late father’s share.

The court found that by the fall of 2011 the deceased was in precipitous and noticeable mental decline and had become paranoid and obsessive. When she was interviewed by a medical doctor in 2012, she did not know that she had executed a transfer of the property the previous year.

The court found that in all likelihood the deceased signed the transfer of land to avoid the payment of probate fees, which under the law of resulting trust would find that her intention was not to gift the property, but alternatively that it was to be held in trust.

The Law of Presumption of Undue Influence

In Loriintt v. Boda 20114 BCCA 354, the BC Court of Appeal explained the presumption of undue influence at paragraph 75 and 76:

75. The presumption of undue influence arises in circumstances where the relationship between the parties gives rise to the potential domination of one party by another. Once a dominant relationship has been established, such that potential for influence exists, the onus moves to the defendant to rebutt and show that the plaintiff entered into the transaction as a result of his own ” free, full and informed thought”.

This law was first pronounced by the Supreme Court of Canada in the decision Geffen v. Goodman (1991) 2 SCR 353 at paragraphs 42 – 45 .

76. As another civil cases, regardless of the legal burden, both sides to the dispute will normally bring evidence to support their position. The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain on the balance of probabilities, the transferor’s actual intention. As discussed by Sopinka in the Law of Evidence in Canada, at page 116, the presumption will only determine the result where there is insufficient evidence to rebut on the balance of probabilities.

Some case law has identified relationships between an old and sick parent and a child to be one of dominance and dependency: Petrowski v . Petrowski 2009 A.B.QB 196 at paragraph 382.

After examining the relationship between the transferor and the transferee, the court then examined the transaction in question. The presumption of undue influence can be rebutted by evidence of independent legal advice

In Mondonese v Delac estate 2011 BCSC 82, affirmed at 2011 BCCA 501,at parapgraph 122, the court stated: the function of independent legal advice is to remove the taint that, if not removed, might invalidate a transaction. The nature and circumstances will dictate what constitutes adequate independent legal advice for the purposes of a given situation. Cope v Hill 2—5 ABQB 625 at para. 209.

The remedy for an unrebutted finding of undue influence is described in Geffen, at paragraph 23:

“the equitable doctrine of undue influence was developed as was pointed out by the House of Lords in Allcard v. Skinner (1887) , 36Ch. D. 145, not to save people from the consequences of their own folly, but to save them from being victimized by other people. In the context of gifts and other transactions, equity will intervene and set aside such arrangements. If procured by undue influence.”

23 Signs of Undue Influence in Dysfunctional Families

23 Signs of Undue Influence in Dysfunctional Families

Undue influence is very common in dysfunctional families and many of the indicators to watch out for are summarized in this blog.

I am frequently approached by members of a family who suspect that one or more of their siblings have unduly influenced or will try to do so that a parent will provide a disproportionate share if not all of their assets to that sibling(s).

The problem is further compounded due to the typical lack of communication that exists amongst dysfunctional family members.

Such dysfunctional family members are almost by definition suspicious and estranged from each other, combined with a problematic relationship with one or both parents.

The following are some guidelines for those who are trying to determine if unduly influence has been or is attempted to being exercised upon an elderly parent by one or more siblings. Please note that in law, undue influence must amount to coercion and not simply sustained pressure:

How to identify undue influence:

1. Check to see that the parent has gone to a lawyer of his or her choosing, particularly with a past history of working together, as opposed to being taken to a lawyer who only known to or friendly with the sibling in question;

 

2. Try and determine if your parent has sufficient mental capacity to properly instruct a lawyer of his or her choosing;

 

3. If the family is ethnic determine if the parent has sufficient language skills to instruct the lawyer without the use of an interpreter, and be particularly wary of the questionable sibling acting as interpreter;

 

4. Be aware of red flags, such as a black sheep member of the family suddenly reappearing and becoming the caregiver and decision-maker for the elderly parent;

 

5. If the parent lives in a care home, or independent living, try and make as many caregivers and knowledgeable people aware of any potential problems that you fear may arise by a sibling, whom you suspect may attempt to unduly influence your parent;

 

6. Be familiar with the assets owned by your parent(s) and who manages or oversees those assets, and inform all involved as to concerns of potential undue influence;

 

7. Be aware of any appointment of power of attorney or change in power of attorney to any sibling that is not to be trusted by his or her other siblings- usually such individuals have a history of manipulation;

 

8. Be aware of any threats of violence, or threats of putting an elderly vulnerable parent into a nursing home against his or her will;

 

9. Be aware of any depression, or drug or alcohol abuse that the elderly parent may be experiencing and are having problems dealing with;

 

10. Be aware that if you have concern about financial abuse of an elderly parent, you should report the matter to the Public Guardian and Trustee for the Province of British Columbia, who has a statutory duty to investigate the circumstances;

 

11. Inform the family doctor or other treating physicians of any concerns that you may have as to possible manipulation to the point of undue influence of an elderly parent;

 

12. Compile a list of events, circumstances and a timeline that may indicate circumstances that may collectively amount to undue influence;

 

13. Be aware of any significant decline in physical or mental capacity on the part of the parent;

 

14. Be aware of any drastic changes in the provisions of the will or power of attorney that under the circumstances do not make sense;

 

15. Be aware of the parent being kept in isolation from others, and being unavailable to take telephone calls;

 

16. Be aware of dependency on others, particularly a suspected sibling, when the parent is dependent on the sibling for sight, hearing, mobility, speech, personal needs, or care;

 

17. Look for signs of inappropriate clothing, cleanliness, bruising or untreated injuries;

 

18. Be aware of signs of early dementia, which typically involve some of or all of the following problems -short-term memory loss, disorientation, confusion, and difficulties with finances;

 

19. Be aware of signs of depression, agitation, frustration, mood swings, difficulty making decisions and other such significant changes in the parents emotional makeup;

 

20. Be aware of significant gifting and donations that are totally out of character for the elderly parent- this may involve the suspected sibling or may also involve third-party predators such as telephone solicitations;

 

21. Be aware when a third-party, particularly the suspected financial abuser, speaks for and on behalf of the elderly parent who typically withdraws from such conversations;

 

22. Insist upon financial transparency between siblings and parents with respect to financial decisions and estate planning;

 

23. Trust your gut feeling and be cognizant of the body language of both the parents and the suspected financial abuser, for such signs as anxiety, insecurity, embarrassment, or general unwillingness to talk about financial or care matters

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.

Conclusion

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.

Undue Influence: Presumption Rebutted

Undue Influence: Presumption Rebutted

Rebutting the Presumption of Undue Influence

Grosseth Estate v Grosseth 2017 BCSC 2055 was a claim for resulting trust and presumption of undue influence that was dismissed by the court that found that the presumption of undue influence had been rebutted.

The deceased died at age 96 without children, leaving his will to be divided equally amongst his 11 nephews and nieces.

Prior to his death he spent the last 10 years of his life living with the defendants, to whom he gave the lions share of his estate.

Various nieces and nephews contested these purported gifts and argued that the presumptions of resulting trust and undue influence applied, so that the purported gifted funds should be returned to the estate.

The court reviewed the evidence and found that both the presumptions of resulting trust and undue influence had been rebutted, primarily on the basis of an independent witness.

The evidence was that the deceased lived happily with the defendants for the last 10 years of his life in a self-contained suite in their home, and became a member of their family and a grandfather figure to their children.

The court found that the deceased on his own volition contributed approximately $157,000 towards the purchase of a commercial building with an asking price of $180,000. The defendant say that he did so on his own without any prompting from themselves.

There was approximately $60,000 left in his estate to the nieces and nephews.

The deceased lived largely rent-free in their basement for most of the 10 years.
The attitude of the deceased was that he would rather provide his money to the defendants, in honor of their years together as a family, rather than leave his estate to nieces and nephews who he barely knew and who had never shown much interest in him.

The court found that the nature of the relationship with the deceased and the defendants gave rise to the common law presumption of undue influence that seeks to assure that gratuitous transfers are free from the taint of manipulation or coercion.

The deceased was of advanced years when the transfers are made, and was living in a situation of some dependency on the defendants, that had they wished, they could have dominated him into acting to their advantage and to his own detriment (Geffen v Goodman (1991) 2 SCR 353 at 377.)

It is this potential for domination the triggers the presumption of undue influence, but the presumption of undue influence may be rebutted by evidence, director circumstantial, that establishes that the donor or entered into the transaction of his or her own full, free and informed thought ( Cowper –Smith v. Morgan 2016 BCCA 200 at p.49.)

Factors relevant to a finding of rebuttal of undue influence include:

  1. the lack of actual influence or opportunity to influence the donor ;
  2. receipt of or opportunity to obtain independent legal advice;
  3. the donor’s ability to resist any such influence;
  4. the donors knowledge and appreciation about what he or she was doing ( Stewart v McLean 2010 BCSC 64 at p.97)

The court was impressed by the evidence of an independent witness who recalled the deceased told her he was proud about having helped purchase the property, and that he had done so because the defendants had let them stay in their house and did not charge him for room and board.

The court specifically allowed hearsay evidence to be admissible on this point on the basis of prior authority such as Mondonese v Delac Estate 2011 BCSC 82, affirmed 2011 BCCA 501.

The court concluded that on the totality of the evidence, it was clear that the deceased was fully capable of managing his own affairs, and there was no evidence whatsoever to substantiate the claim that he was of diminished capacity due to age, dementia, or other causes.

As such, the court found that the transfers were gifts freely given by a man who was fully capable of making his own decisions uninfluenced by anyone.

Undue Influence: Shifts in Burden of Proof Means More Plaintiffs Win

Undue influence is nearly always done in secrecy. It’s behind closed doors. There’s never many witnesses. It’s the things that are said like, I’m going to put you in a care home if you don’t leave anything to me. There are no witnesses but it scares the hell out of the vulnerable person. They lose their freedom of thought and gradually, they lose their independency and they become very dependent on that caregiver and make their will accordingly.

It seems to me rather that one speaks of influence, one is really referring to the ability of one person to nominate the will of another whether it’s through manipulation or coercion or outright or subtle abuse of authority. Basically, they conclude with to dominate the will of another simply means to exercise a persuasive influence over him or her. You see, it’s not coercion now. It’s just persuasive influence. That’s a huge change.

Proving coercion is almost impossible. You have to have literally a gun to the head and witnesses witnessing that. But in these positions of domination and vulnerability, it’s just persuasive influence. The ability to exercise such influence may arise from the relationship of trust and confidence that may arise from other relationships as well. The point is that there is nothing per reprehensible about persons in a relationship of trust and confidence exerting influence, even undue influence over their beneficiaries. It depends on their motivation and objective to which they seek to achieve. And again, that’s an evidentiary matter but with the presumption, it’s a huge factor and a leg up. I predict there’s going to be more undue influence claims and that more plaintiffs are finally going to win.

Mental Capacity and Marriage

This video is about capacity to marry. That’s mental capacity. We all know the story of Anna Nicole Smith and her love affair and marriage to the 94 year-old billionaire. After his untimely passing, there was years and years of litigation which centered on whether he had mental capacity to marry the late Anna Nicole Smith. It never did get resolved.

At common law, very little intelligence was required to enter into the simple contract of marriage. More recently, the courts have taken a more realistic and modern view that the contract of marriage is not as simple as it once was and that a higher standard of capacity is required.

Dysfunctional Families: The Predator Spouse

Dysfunctional Families - Disinherited

A disturbing and increasing trend in dysfunctional families is the advent of the predator spouse who takes advantage of elderly victims and assumes control of usually financial affairs and marries the victim in short order.

Even if the family had been reasonably functional prior to this event, the interference of the predator spouse upon an elderly loved one can wreak severe consequences for both the victim and his or her family.

Every estate litigator has likely had experience with the predator spouse.

Typically they are much younger women, often a caregiver, who single out an elderly and vulnerable man who is typically recently widowed , and does so for the purpose of personal profit and exploitation.

Family members are usually cut off, excluded from the life of their loved one and not informed of the marriage ceremony.

The goal of the predator spouse is to enter into a legal form of marriage, while making the victim increasingly excluded from family members and totally dependent upon the predator. The overwhelming control exerted by the predator spouse is often backed up with the terrifying threat of putting the elderly spouse in a care facility .

In my experience the elderly widower is often cognitively impaired, significantly depressed and unable to care for himself. The predator spouse is often skilled at befriending such victims and often has a history of prior marriages for the same exploitive purpose.

The children are often beside themselves as they see both their family connection totally disrupted, as well as their possible inheritance going to an intervening stranger.

The relationship usually begins as either a hired caregiver or as someone who quickly befriends the elderly person and gains his trust through companionship and assistance. Many such men find the younger female predator to be sexually irresistible and cannot avoid the “temptation”.

The marriage ceremony often occurs in secret within several weeks of the start of the insidious relationship.

One of the major difficulties with such marriage ceremonies is that they are often very difficult in law to set aside, primarily on the basis of lack of mental capacity.

The courts generally speaking have had difficulty in defining exactly the test for capacity to marry, but seem to have adopted a standard that it is to be treated as quite low on the basis that marriage is a “simple contract.“ The judicial reasoning in my opinion could not be more incorrect given the complexity of current matrimonial laws, particularly as they relate to the division of property and assets, and the consequent  difficulty of divorce in present day.

Such judicial reasoning continues however that marriage is a “simple contract” requiring very little cognitive reasoning to understand the consequences of same.

Cases of the Predator Spouse

There has been at least one judicial decision where the court recognized the effect that a marriage has on one’s property and children and a higher standard of capacity to marry was applied.

That decision was in Alberta case of Barrett Estate v. Dexter 2000 ABQB 530. In that decision, the deceased had been tested for mental capacity prior to his death, and was found to have significantly impaired cognitive function and judgment. A geriatric physician opined that a person must understand the nature of the marriage contract, the state of previous marriages, one’s children and how they might be affected.

Probably my most egregious case was a widower who began to frequent the services of a prostitute who “specialized in seniors”. Within a short while the prostitute moved in with the elderly man, changed the locks and telephone number and cut him off from his three children. They married shortly thereafter, she arranged for him to change his will to provide for her exclusively, and  within three months of their marriage, she physically beat him to death, and was convicted of his murder.

Another successful challenge to a predator marriage was in Juzumas v Baron 2012 ONSC 7220 where the marriage was set aside on the basis that the contract of marriage was unconscionable due to the inequality of bargaining power, and undue influence.

The court stated as follows:

8     In his text, The Law of Contracts, John McCamus addresses the “cluster of doctrines” that apply “where a stronger party takes advantage of a weaker party in the course of inducing the weaker party’s consent to an agreement.” John D. McCamus, The Law of Contracts, 2nd ed. (Toronto: Irwin Law, 2012), at p. 378. The cluster of doctrines includes undue influence and unconscionability. If any one of these doctrines applies, the weaker party has the option of rescinding the agreement.

9      McCamus describes the equitable doctrine of undue influence as providing a “basis for setting aside a gift or a transaction where the transfer of value has been induced by an ‘unconscientious use by one person of power possessed by him [or her] over another.'” McCamus, at p. 402; see also Morrison v. Coast Finance Ltd. (1965), 55 D.L.R. (2d) 710 (B.C. C.A.), at p. 713; and Knupp v. Bell (1968), 67 D.L.R. (2d) 256 (Sask. C.A.), at p. 259. He addresses the distinction between the two categories of undue influence: actual and presumptive undue influence. As an example of actual undue influence, McCamus refers to Craig v. Middleton, [1970] 2 All E.R. 390 (Eng. Ch. Div.), in which a caregiver threatened an elderly dependent with abandonment: McCamus, at p. 403-404. The onus is on a plaintiff to establish actual undue influence.

10      A presumption of undue influence arises from the nature of a recognized relationship (e.g., solicitor and client, doctor and patient etc.). The presumption can also arise from the particular circumstances of the case, where one party has the ability or potential to “dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power.” Goodman Estate v. Geffen, [1991] 2 S.C.R. 353 (S.C.C.), at p. 377.

11      Such a presumption is rebuttable by evidence that the transaction was an exercise of independent free will: Geffen, at p. 379; and Bank of Montreal v. Duguid (2000), 47 O.R. (3d) 737 (Ont. C.A.), at para. 24-25. Evidence of free will may be demonstrated by evidence of independent legal advice, or at least an opportunity for the individual

Pleading Particulars of Undue Influence

Pleading Particulars of Undue Influence

Harder v Harder Estate 2017 BCSC 425 discusses the necessity of pleading particulars of allegations of undue influence  so that the defendant can meet the claim and not be taken by surprise at trial.

Particulars of Undue Influence

[15]        SCCR 3-7 (18) requires that full particulars of undue influence, with dates and items if applicable, must be stated in the pleading. The particulars are required to inform the other side of the nature of the case to be met, prevent the other side from being taken by surprise at trial, enable the other side to know what evidence they ought to prepare for trial, to limit the generality of the pleadings, and to tie the hands of the plaintiffs: Cansulex Ltd. v. Perry, [1982] B.C.J. No. 369 at para. 15. The particulars to be pled in a claim alleging undue influence have been discussed in Hopper v. Dunsmuir (No. 3), [1903] B.C.J. No. 55, Winn v. McKercher, [1956] B.C.J. No. 25, and more recently in Harrison v. Apperloo, 2016 BCSC 1129.

[16]        The defendants’ main complaint about the undue influence claim is that the plea covers a period of several years if not decades, and does not identify specific instances or even narrow time frames in which the influence occurred.

[17]        Having now had the opportunity to fully review the NOCC, I find that the plaintiffs have provided sufficient particulars of the allegations of undue influence in order to delineate the issues between the parties and allow the defendants to prepare for examinations for discovery and trial. The allegation of undue influence as pled does indeed cover a lengthy period, but the circumstances of that influence and even the acts themselves are described in the pleading. I note, furthermore, that the defendants have been able to deliver their response to the NOCC without having further particulars. The defendants have not demonstrated on a balance of probabilities that there is non-compliance with SCCR 3-7 (18).

Harrison v Aperloo 2016 BCSC 1129 stated in part:

[12]         The remaining purported pleas of undue influence are at least deficient. The language used indeed connotes legal conclusions rather than material facts upon proof of which a legal conclusion could be made. An example of a particularized plea of undue influence is disclosed in Longmuir v. Holland, 2000 BCCA 538 at para. 28:

[28]  …

10. The Plaintiff says that the 1991 Will is invalid for the following reasons:

(b)  and, or in the alternative, the execution of the will was procured by the undue influence of the Defendant Margaret Alice Holland. Particulars are as follows:

(i)  The Defendant Margaret Alice Holland was living with the Deceased in her home and had complete control over the Deceased’s person including her physical care and basic needs prior to and at the time of the execution of the 1991 Will;

(ii)  The weak physical and mental condition of the Deceased, her vulnerability and dependency upon Margaret Alice Holland prior to and at the time of the execution of the will rendered her susceptible to undue influence, which was in fact exercised;

[13]         The plaintiff says that the details or particulars of the undue influence claim will be fleshed out from the defendants through the discovery process. Aside from the fact that the plaintiff ought not to make pleas that have no known factual basis, authorities were offered which allow the plaintiff’s obligations under Rule 3-7(18) to await completion of the discovery process. The plaintiff can later add to or elaborate on the initial particulars, following the examinations: Rule 3-7 (20). Nevertheless, in order to identify the actual issues between the parties as well as permit the defendant to comply with the discovery obligations and prepare herself for an examination, it is expected that purported facts of undue influence have more than a generic quality to them. Without intending to do the plaintiff’s job for her, some particulars that might be offered are: How was the testator under the direction and control of the plaintiff? What position of trust and confidence did the defendant hold over the testator? When or how did the defendant coerce the testator? Guidance on the material facts to be pled and proven may also be found in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, an authority cited by the plaintiff.

Suspicious Circumstances

Suspicious Circumstances

Arauju v Neto 2001 BCSC 935 is an undue influence lack of capacity case that discusses suspicious circumstances.

The court found that due to suspicious circumstances the will maker was not allowed to rely upon the presumption that he was mentally capable when the will was executed.

Ordinarily where the propounder of a will shows that it was duly executed with the requisite formalities and after having been read over to a testator who appeared to understand it, it is presumed that the testator knew and approved of the contents and had the necessary testamentary capacity or disposing mind and memory.

[122] However, I do not think that the plaintiff is entitled to that presumption. Because of the evidence of suspicious circumstances, the plaintiff has the burden of establishing on the evidence that Mr. De Araujo knew and approved of the contents and had testamentary capacity with respect to both of the 1995 and 1996 wills.

[123] The suspicious circumstances in the case of the 1995 will include:

1.the poor health of the aged testator;

2. the removal of the testator from a home where he had lived for a lengthy period;

3. the fact that the testator was taken almost directly from his place of residence to a lawyer to give instructions;

4. the lengthy period of separation from Carlos;

5. the person directly benefiting from the will; the dramatic change from the previous will;

6. the fact that the testator had a substantial amount of cash on him;

7.and significantly the fact that his proposed beneficiary (a person from whom he was estranged for over five years) gave the relevant instructions to the lawyer.

Independent Legal Advice and Undue Influence

Independent Legal Advice and Undue Influence

Under normal circumstances independent legal advice, if properly given should be sufficient to rebut any presumption of undue influence, but that was not the case in Cowper-Smith v Morgan 2016 BCCA 200 where the Court of Appeal upheld the trial judge in finding inter alia , that the independent legal advice provided was inadequate to rebut the presumption of undue influence.

The case should stand as a wake-up call to any practitioners dispensing independent legal advice that it must be thorough and relevant to the assessment of the question or issue before them, and to take the time and charge accordingly.

Failing to do so may expose professional liability by disappointed beneficiaries.

The Appeal Court stated as follows re the law of Independent Legal Advice:

51      The following considerations have also been identified as relevant to the assessment of the legal advice provided to the donor (Fowler Estate v. Barnes (1996), 142 Nfld. & P.E.I.R. 223 (Nfld. T.D.), Green J., adopted in Coish v. Walsh, 2001 NFCA 41 (Nfld. C.A.) at para. 23):

  1. Whether the party benefiting from the transaction is also present at the time the advice is given and/or at the time the documents are executed;
  2. Whether, though technically acting for the grantor, the lawyer was engaged by and took instructions from the person alleged to be exercising the influence;
  3. In a situation where the proposed transaction involves the transfer of all or substantially all of a person’s assets, whether the lawyer was aware of that fact and discussed the financial implications with the grantor;
  4. Whether the lawyer enquired as to whether the donor discussed the proposed transaction with other family members who might otherwise have benefited if the transaction did not take place; and
  5. Whether the solicitor discussed other options whereby she could achieve her objective with less risk to her.

[The “Coish” factors; citations omitted.]

52      The respondents also rely on jurisprudence that identifies two branches for assessing the adequacy of the independent legal advice given where an allegation of undue influence is raised: (i) advice as to understanding and voluntariness (attendance on execution); and (ii) advice as to the merits of a transaction (the wisdom of entering into the transaction). The first branch of the test requires that the independent advisor is satisfied the donor understands the transaction and enters into it freely and voluntarily. The second branch of the test requires something more than the independent advisor being satisfied that the donor understands the effect of the transaction and wishes to make the gift; it also requires that the independent advisor is satisfied that “the gift is one that is right and proper in all the circumstances of the case, and if he cannot so satisfy himself he should advise his client not to proceed.” See Cope v. Hill, 2005 ABQB 625 (Alta. Q.B.), aff’d 2007 ABCA 32 (Alta. C.A.) at paras. 210-212, citing Gold v. Rosenberg, [1997] 3 S.C.R. 767 (S.C.C.), Corbeil v. Bebris (1993), 141 A.R. 215 (Alta. C.A.), and Halsbury’s Laws of England, vol 18, 4th ed. at 157, para. 343.

53      Assessing the adequacy of the legal advice given is a fact-specific inquiry. It does not reduce to any precise test. In some circumstances, it may require advice on only the nature and consequences of the transaction. However, where concerns or allegations of undue influence arise, generally there will be a need to give “informed advice” on the merits of the transaction. See Cope at paras. 213-215, citing Brosseau v. Brosseau, 1989 ABCA 241 (Alta. C.A.) at paras. 22-23, Coomber v. Coomber, [1911] 1 Ch. [723] and Wright v. Carter, [1903] 1 Ch. 27 (Eng. C.A.) at 57-58.

Did the judge err in finding the presumption of undue influence and the presumption of resulting trust had not been rebutted?

54      It is common ground that findings with respect to undue influence and the intention of a party to gratuitously transfer property to another are subject to a deferential standard of review. See Boda Estate v. Boda, 2014 BCCA 354 (B.C. C.A.) at para. 72. An appellate court may not interfere with the findings and inferences of fact by a trial judge absent palpable and overriding error (see Housen v. Nikolaisen, 2002 SCC 33 (S.C.C.) at para. 10). Palpable error is one that is readily or plainly seen (Housen at para. 5); overriding error is one that must have or may have altered the result (see Van Mol (Guardian ad litem of) v. Ashmore, 1999 BCCA 6 (B.C. C.A.) at paras. 11-12).

55      The application of a legal standard to findings or inferences of fact raises a question of mixed fact and law. Where an alleged error of mixed fact and law can be attributed to the application of the wrong legal standard, element of the legal test, or error in principle, the error may be characterized as an error of law and is subject to the standard of correctness. However, if the legal principle is not readily extricable from the findings or inferences of fact, then the judge’s conclusions should not be overturned absent palpable and overriding error (Housen at paras. 26-36).

56      All three standards of review are engaged in this appeal. The appellant contends the judge erred in law by adopting a flawed approach in her assessment of the evidence of Ms. Iverson and Mr. Easdon, in order to determine whether the presumption of undue influence was rebutted. The appellant further alleges that in applying the legal test for rebutting the presumption of undue influence, the judge made a palpable and overriding factual error based on an erroneous inference that Elizabeth did not intend to execute the June 22, 2001 documents because she did not understand the nature and consequences of those documents. This error, the appellant submits, was material to her conclusion that the presumption of undue influence was not rebutted.