Written on June 25, 2013 – 10:38 am | by Angela Casey
If the facts in the Estate of David Bruce Tate were made into a movie, I suspect that viewers would not have been cheering for the successful plaintiff – a prodigal son described by the trial judge as having a “habit of deception”. The plaintiff, Bruce David Tate, was the son of the deceased, David Bruce Tate. Many years before his death, the father had purchased a business in Bobcaygeon in order to lure his son away from the temptations that Toronto held for the son – alcohol, illegal drugs and links to organized crime. The relationship between son and father was later fractured when the father concluded that Bruce had been stealing from the family business.
Nevertheless, the father-son relationship was apparently repaired in the months leading up to the father’s death. Five months before his death, the father signed a will in which he left almost everything (but for token gifts of $1000 to each of his five daughters) to his son, Bruce. The daughters challenged the will. The Court found that the will was signed in suspicious circumstances. Among them:
- during the last months of his life, the deceased was spending time with Bruce only and not with his five daughters
- Bruce did not immediately tell his sisters when their father died
- the deceased was physically dependant on Bruce and Bruce’s common law wife for the basic necessities of life
- Bruce took the deceased to see a new lawyer unfamiliar to the deceased and sat through the meeting in which the deceased gave instructions
- the drafting lawyer sent the draft will to Bruce
- the drafting lawyer’s notes were poor
- the signature on the will was not the deceased’s usual signature
- the lawyer was told that it was urgent to prepare the will
The judge found Bruce to be an unreliable witness and held that Bruce was “prepared to mislead the Court where he believed such deception would assist his case”. By contrast, the sisters (the will challengers) were “uniformly credible”. However, based on the evidence of the deceased’s family doctor, the lawyer who drafted the will, Bruce’s ex-girlfriend (who, since they had separated, had nothing to gain), and evidence surrounding the deceased’s instructions for a prior will, the Court found that the impugned will represented the deceased’s true intentions – “despite the fact that this is not what the sisters wanted, anticipated, or thought was fair.” In the words of the trial judge, “if there is testamentary capacity, the legitimate and appropriate outcome may seem unreasonable or even cruel to survivors – but that is not the test.”
The silver lining for the daughters was the trial judge’s costs decision. Despite the fact that they were unsuccessful, the judge awarded costs to the daughters out of the estate on the basis that there were suspicious circumstances surrounding the will and Bruce had conducted himself in a manner that “invited inquiry”.
Thanks for reading,