All About Estates

Pre-Death POA Disputes

I have no statistics on this, but anecdotally, I have had many conversations lately with fellow estate litigators who have noticed the same recent trend in their practices.  That rather unseemly development is this:  expectant beneficiaries no longer wait until a person is dead to start fighting over inheritance money.  In more and more cases, the fights begin while the testator is still alive.

A case decided earlier this month, Keller v. Wilson, is one of many examples of this trend.  In it, a disgruntled son brought an application to remove his mother’s named attorneys for property (POAs) and named estate trustees.  Although the mother suffered from advanced dementia, she was still very much alive.

The heart of the dispute appeared to be the son’s desire to receive an “advance” on his future inheritance and the POA’s reluctance to give it to him.  The POAs deposed that the son had been pursuing the mother “both in litigation and directly, to obtain money and property from her prior to her death.”  The son alleged that the POAs had an antagonistic and improper attitude towards him and his wife.  The son therefore sought their removal as POAs and as [future] estate trustees of his mother’s estate (for which he stood to become the residual beneficiary).  The son also sought leave to compel the POAs to pass their accounts.

In a separate application, the POAs/named estate trustees brought an application for directions under the SDA.  Their application sought the Court’s advice and direction about whether they should accede to the son’s multiple requests for money from the “estate” of the mother.  The POAs’ application for directions was made on notice to various charities named as legatees and alternate residual beneficiaries in the mother’s will.

The Court declined to give the POAs advice and direction. Justice Broad found that the Substitute Decisions Act (“SDA”) provided guidance about making gifts from an incapable person’s property and that “it is not appropriate for the Attorneys to attempt to shift their responsibility in that regard to the Court by means of an application for directions on how to exercise their discretion.”  So long as they exercised their discretion properly, with honesty, integrity and for the incapable person’s benefit, they were entitled to the protection from liability by virtue of section 32 of the SDA.  Ultimately, it was for the attorneys, not the Court, to decide whether to give the son money from his mother’s assets.

The son’s application was also dismissed. The Court found it “difficult to conceive of an application for removal of estate trustees under a Will succeeding prior to the testator’s death.”  The court also declined to remove the POAs.  Finally, the Court considered the son’s request for leave to bring an application to compel the POAs to pass their accounts.  In deciding whether leave should be granted, the court must be satisfied that the applicant has a genuine interest in the grantor’s welfare and that it is reasonable to believe that a court hearing the matter may order the attorney to pass his/her accounts.  Applying this test, the Court refused to grant leave.

About Angela Casey
Angela is a partner at de VRIES LITIGATION LLP. Angela has extensive experience with capacity litigation, power of attorney disputes, dependant support claims, will challenges, and will interpretation proceedings. She routinely acts as agent lawyer for the Children’s Lawyer in contentious litigation. She also has extensive experience litigating commercial and shareholder disputes, as well as fraud actions. She has appeared before the Ontario Court of Appeal, the Ontario Superior Court of Justice, the Ontario Divisional Court, and several administrative tribunals.