Adams Estate v Wilson: Who has standing to challenge a Will?

by | Dec 31, 2020 | Area of Expertise, Articles & Research, James D Steele, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

A recent case from the Saskatchewan Court of Appeal reminds us of the importance of first confirming you have standing to challenge a will.

“Standing” refers to the question of whether a person has a sufficient legal interest in a given dispute. In other words, will they be in a different position, depending on the outcome of the proceeding? If they do not have such interest, they cannot be a party in that  proceeding.

In Adams Estate v Wilson, 2020 SKCA 38, an elderly woman died with no children. She left a large ranching operation, and land holdings. A neighbour, Mr. Wilson, claimed that he had helped the deceased for decades, and in return, she allegedly had promised him two things:

  1. That she would pay him $1,000 per month to help cover expenses such as gas and use of his truck and tools; and
  2. That Mr. Wilson would inherit her ranching operation and all her land, cattle and equipment when she died.

This agreement was not in writing, and Mr. Wilson was further not named in the deceased’s will.

The deceased made the will in May of 2011. It made no direct mention of Mr. Wilson. The will was vague, and not specific. It said that her executor, a Mr. Staples, knew that certain persons were trustworthy and loyal and helpful to the deceased, and Mr. Staples was to use his best judgment to ensure that some portion of the estate is given to those persons.

Mr. Wilson was also not a family member of the deceased. Thus, he would not benefit in the case of an intestacy (i.e. a situation in which no will was found valid). Moreover, Mr. Wilson was not a beneficiary of any prior will made by the deceased.

The issue:

Despite the above, Mr. Wilson brought an application to prove the will in solemn form. Solemn form means that a will must go through a much more rigorous trial process to see if it is truly a valid will. Typically, a solemn form application is brought if someone thinks a given will is invalid.

Here, the issue on appeal was whether Mr. Wilson had standing to apply for solemn form.

The Court of Appeal held that he did not. In reality, Mr. Wilson’s claim was a debt claim, not a claim involving the validity of the will. Even if he did prove himself a creditor, the Court noted that creditors have no right to challenge the validity of a will. More practically, even if Mr. Wilson struck down the will as invalid, that outcome alone would place him no closer to obtaining monies out of the estate:

  • [79]           I have concluded, based on my previous analysis, that as a creditor or potential creditor of the estate, Mr. Wilson does not have the kind of interest that would entitle him to challenge the Will or require it be proven in solemn form. As well, Mr. Wilson does not have standing as a potential creditor in that, if his application to set aside the Will was successful and an intestacy were created, there would be nothing to be gained by him as a creditor. His claim against the estate would be the same. He has no stake in the outcome and, therefore, standing under Rule 16-46 cannot be established. [emphasis added]

Alternatively, Mr. Wilson also claimed that he had standing, in that he might eventually be proven (at a future trial) to be one of the persons who were considered “trustworthy and loyal and helpful”. However, this argument too did not explain why  Wilson was therefore applying to strike down the will. If Mr. Wilson succeeded in such an application, he would invalidate the “very bequest upon which he based his claim of standing,” and have “eliminated any chance that he would take under the Will” (para 84).

Mr. Wilson later sought to appeal this decision to the Supreme Court of Canada, but leave to appeal was not given.

Conclusion:

In short, anyone who wishes to challenge a will should ask if their legal, and practical, position will be improved by striking down a given will. In the case of someone like Mr. Wilson, it appears that another strategic path open to him would simply have been to:

 

  1. Avoid the expense of a will challenge;
  2. Instead, advance his claim as creditor to a determination, while considering interim measures to pause distribution of the estate assets.

 James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or [email protected]. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

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Renouncing as executor may not always be an automatic right

by | Nov 9, 2020 | Area of Expertise, Articles & Research, James D Steele, Lawyers, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

An interesting lesson for executors comes from the recent Saskatchewan decision in Goby v Frederick, 2020 SKQB 201

Wayne Frederick passed away. His will appointed his sister, Shirley Frederick, to be the executrix of his estate. Shirley obtained letter probate.

However, the only asset in the estate is a piece of land valued at $800. Moreover, the estate of Wayne Frederick owed a lot of debt. Shirley Frederick desired to therefore renounce probate. Shirley discovered that she could not transfer the land in the estate without paying for a valuation, which she said neither she nor the estate can afford.

Shirley Frederick desired to therefore renounce probate, and hoped the Public Guardian would assume the role.

Therefore, the issue in Goby v Frederick was whether an individual has the right to simply automatically renounce as executrix of an estate, after receiving Letters Probate.

The Court held no. An individual cannot renounce, unilaterally, as executrix, after receiving Letters Probate. The Court required that Shirley bring a formal court application to be removed as executrix, and that it be served on the public trustee in view of the minor beneficiaries. An affidavit by

Shirley Frederick was to accompany the application, setting forth evidence of her inability to administer the estate.

The lesson:

Persons who are named executors of problematic estates (i.e. ones with high debt, or whose administration may be difficult to carry out) should be sure that they wish to serve as executor.

Once an executor obtains letters probate, if you later decide you wish to renounce, you may need to go to the expense and time of a court application to do so.
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James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or [email protected]. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

Internet and Social Media Defamation

by | Oct 23, 2020 | Area of Expertise, Articles & Research, Lawyers, Media Law / Defamation, Sean M Sinclair

I commonly receive telephone calls related to internet and social media defamation. The internet and social media are ripe with slanderous statements posted by people who perceive they have absolute anonymity. These posts can impact people’s careers, their families, and their reputation. When I get these calls, I generally consider several questions:

  1. Are the comments defamatory?
  2. Are there valid defences that could be raised by the internet poster?
  3. Do we know who posted the information or could we find out?
  4. If we know who posted the information, are there obstacles that would make pursuing a legal claim impractical?
  5. Does pursuing the poster make financial sense?

Are the Comments Defamatory?

It is not hard to prove that a comment is defamatory. Basically, you need to prove that a statement was made that would negatively impact a person’s reputation. It should be kept in mind that a random, negative comment such as “I hate that guy” or “He sucks” may not negatively impact someone’s reputation. It really depends on context, including where the comments are posted.

Are there valid defences that could be raised by the internet poster?

There are many possible defences to defamation claims. Some of the most common in internet cases are:

  1. Justification (truth); and
  2. Fair comment (opinion).

Truth is a defence to a defamation claim. Truth can sometimes be hard to prove if a poster does not have first-hand knowledge about what they are posting about. If they are reliant on the statements made by others, there is an open question as to whether that third party will actually back up the claims if push comes to shove in a court proceeding. The poster has the onus of proving the truth of the comments.

Defamation law also protects people from expressing opinions if those opinions are based on “true facts”. For instance, if someone posts a negative review for a restaurant because they did not like their meal, the poster’s opinion is protected. On the other hand, if the poster has a grudge against the restaurant owner and did not actually eat there, but then posts a negative review pretending like they had a bad meal, those comments are not protected by “fair comment” because the comments are not based on “true facts”.

Do we know who posted the information or could we find out?

A practical problem with the internet is that a lot of comments are made anonymously or under a pseudonym. In many cases, a person can seek a court order to require the website or social media company to provide details as to the IP address and the registration information for the poster, but that does not always reveal the actual poster. Thus, there can sometimes be some practical barriers to pursuing information about the poster. Also, obtaining a court order to reveal a poster’s name can be an expensive proposition.

If we know who posted the information, are there obstacles that would make pursuing a legal claim impractical?

One of the main obstacles with defamation cases is where the poster is located. If the poster is in Canada, a defamation claim is relatively straightforward. However, if the poster is a non-Canadian, there can be practical issues associated with pursuing that person, depending on the jurisdiction.

The United States is particularly difficult because of the SPEECH Act (Securing the Protection of our Enduring and Established Constitutional Heritage Act). This Act makes foreign libel judgments (including Canadian judgments) largely unenforceable in U.S. courts. The SPEECH Act also generally makes it so that a U.S. company can ignore a Canadian order requiring disclosure of a poster’s identity.

In addition to jurisdiction issues, a court proceeding is public. Some people do not want the potential exposure and publicity associated with starting a court action. Thus, it may not make sense to start a court proceeding if the internet posting is likely to fade from public consciousness quickly.

Does pursuing the poster make financial sense?

This is a major consideration in any defamation case. The cost of obtaining orders to disclose a person’s identity coupled with the cost of starting a legal action can sometimes exceed what the court might award for damages. In Saskatchewan, we have had “successful” defamation cases where a plaintiff was awarded $10,000-20,000. Likely, the legal costs exceeded that amount of money in those cases. I generally also question whether the poster has any money to pay a judgment.

However, there are cases where a person might have lost a job or business, where the damages might be significant. In a recent case, a Saskatchewan court ordered $240,000 in damages for posting false information on a website.

Conclusion

Internet defamation cases are increasing, and they are complex. Our legal team at Robertson Stromberg LLP would be happy to assist you with any advice that you need in pursuing or defending against an internet defamation case.

How to avoid your Will from becoming challenged after you die

by | Oct 23, 2020 | Area of Expertise, Articles & Research, James D Steele, Q&A, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

More and more wills are being contested in Saskatchewan each year. And the sad truth is that many challenges are avoidable if the will-maker had done one or both of the below things:

  1. Hired a lawyer to draft their will, and keep good notes of their instructions;
  2. Told the will-maker’s family of the terms of the will, before they died.

On numerous occasions I have seen situations in which a person had sought to avoid the cost of a lawyer-made will. They therefore draft their own will. When the person later passes away, the result is sometimes a confusing will, often made in secrecy and without any independent notes showing the true intention. This situation often spawns litigation, which can then drain tens of thousands of dollars in legal fees from the estate. 

Thus, the first lesson is this: think carefully about perhaps hiring a lawyer to make your will. Moreover, if possible, look for a lawyer who actually specializes in wills and estates, and better knows all of the questions to ask, and situations to avoid.

Second, talk through your goals and assets with your children, and keep notes of such conversation. This is especially true if your new will is making a departure from a prior will. It is far more difficult for a child to later suggest you had dementia, or were pressured into making your will, when the child had the opportunity to talk about your will with you in person.

A will is one of the most important pieces of paper you can ever sign. It can control who is left in charge of your children, your home, and your savings. It is meant to give you peace of mind that when you pass on, your wishes will be followed. It is therefore worth putting in the time to ensure your will is done right.

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or [email protected]. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

DIVISION OF FAMILY PROPERTY: ENTITLEMENT TO FARMLAND OWNED BY EX-SPOUSE AND THIRD PARTIES

by | Oct 21, 2020 | Agriculture, Articles & Research, Family Law, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

When two parties are separating and dividing the family property, there may be questions surrounding property owned by one of the spouses and third parties. In Saskatchewan, this is particularly true for farmland. Often a husband or wife will own farmland with their parents for estate planning purposes. So how does the court deal with this in the division of family property?

Courts ask two questions: first, is the farmland matrimonial property? And if so, what value should be attributed to it?

The answer to the first question is simple. As defined in The Family Property Act, family property means any real or personal property, regardless of its source, kind or nature, that, at the time an application for separation is made, is owned, or interest is held, by one or both spouses, or by one or both spouses and a third person. A joint tenant owns a legal right in the property by virtue of being a registered owner on title. Therefore, farmland held by one spouse in joint tenancy with their parents is family property as defined in the Act.

The second question is where the true analysis lies – what value should be attributed to the jointly held farmland? If the joint tenancy was legitimately for estate planning purposes, its value for the division of family property will be nil. This is because the spouse, and therefore the family unit, did not collect a benefit from the farmland during the marital relationship. Rather, the spouse was simply on title for estate and succession planning once their parents pass away. Courts will look to factors such as who maintained control over the land, who used the land and who paid the expenses and received the benefits from the land when determining if a transfer of title was truly for estate planning purposes. If there is evidence to suggest the spouse received a benefit from the land during the marital relationship, it will be assigned a monetary value by the court and be subject to division. 

Should you have any questions about the division of family property, or need advice on your family law matter, please contact Robertson Stromberg LLP.

Can my child choose where they want to live?

by | Oct 9, 2020 | Area of Expertise, Family Law, Siobhan H Morgan

The short answer is no. However, the wishes of children can be considered in determining parenting arrangements. As the Court does not want children to participate in family law disputes, this article briefly touches on how to put the wishes of a child before the Court for consideration. 

To begin, regardless of the age of the child, there is no law or legislative principle that the wishes of a child dictate the parenting arrangement.  (See M.L.S. v N.E.D., 2017 SKQB 183; Redstar v Akachuk, 2013 SKQB 223; and Kittelson-Schurr v Schurr, 2005 SKQB 90.)

However, a child’s wishes can be an important consideration in determining a parenting arrangement that serves their best interests.  The wishes of young children aged 11 and younger, are typically not taken into consideration by the Court. The Court is of the view that young children are not sufficiently emotionally or intellectually developed to articulate their true feelings.

Children are capable of forming their own views at 12 years of age, which Family Justice Services recognizes for the purposes of conducting a “Voices of the Child” report.

If a matter is proceeding to Court, either by a trial or an interim Chamber’s application, a “Voices of the Child” report can be of assistance in putting the wishes or desires before a judge for consideration.

A Voices of the Child report may be ordered by a judge at any stage of a family law proceeding and the reasons the Court orders Voices reports vary widely. For example, a Chamber Judge, may order a “Voices of the Child” report when conflicting affidavits about the “wishes” of teenage children have been presented. Voices of the Child reports are also ordered at Pre-trial Conference solely for the assistance of the trial judge, who is tasked with determining the parenting arrangement.

However, there is no automatic right to having a Voices of the Child report prepared.

In addition to the age requirement (child must be 12 years old or older), a party seeking to put forward their children’s wishes with respect to the parenting arrangement, must present evidence that leads the Court to conclude that a Voices report would be of assistance in determining the parenting arrangement in the child’s best interests.

If your child is above the age of 12 and has expressed views with respect to the parenting arrangement, a Voices of the Child report can be of assistance to the Court in determining a parenting arrangement.

In the right circumstances, your child’s wishes as expressed through a Voices Report can be the determining factor. In a recent Saskatchewan Court of Queen’s Bench decision, the Court found that irrespective of both parents’ capabilities of caring for the children equally, that a child’s wish was the “most dominant factor” in considering whether the relocation was appropriate. In that case, the child expressed a wish to relocate with the mother. Given the assistance of the Voices of the Child report, the Court granted the mother’s request to relocate with the children (A.R. v R.R., 2016 SKQB 206).

The family law lawyers at Robertson Stromberg LLP can assist in obtaining a Voices of the Child report and your parenting needs more generally.

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