Whaley Estate Litigation
 Whaley Estate Litigation Newsletter Vol.3 No. 7 October 2013



Happy Thanksgiving!  Happy Halloween!


Thank you for your continued feedback, comments, enquiries and contributions that you wish to share: 


Whaley Estate Litigation provides litigation, mediation and dispute resolution services to you or your clients in the following practice areas:

  • Will, Estate, Trust Challenges/Interpretations
  • Dependant Support Claims
  • Passing of Estate, Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes
  • Consent and Capacity Board Hearings
  • End of Life Decision Making
  • Mediation
  • Treatment Decision Disputes
  • Elder Law
  • Solicitor's Negligence
  • Opinions
  • Agency Services
  • Counsel Advising Estate Trustee(s) and Estate Trustee(s) During Litigation, Attorneys and other Fiduciaries
  • Section 3 Counsel under the Substitute Decisions Act


Please Enjoy, 


Kimberly A. Whaley
Whaley Estate Litigation



1. Istanbul Conference, International Istanbul Initiative on Ageing, Istanbul, Turkey, October 4-6, 2013


Kimberly Whaley and Heather Hogan attended the Istanbul Conference in Turkey. Kim and Heather spoke on: "Statutory Protection of Older Adults in Canada: A Difficult Balance", and each chaired sessions.


Kimberly chaired the following:


Public Policy Development

  • The United Kingdom: The policies of successive post-war governments in anticipating and responding to the needs of an ageing society - Speaker: Dr. Gregory Rae, United Kingdom
  • Implementing successful public-private partnerships in elderly care - the Malta experience - Speaker: Mr. Alexander Tranter, Malta
  • The 3C Project - economic well-being later in life - Speaker: Dr. Elizabeth Mestheneos, Greece

Heather chaired the following:


Discrimination and Human Rights

  • Elder law, abuse and discrimination against the elderly, positive privilege for elderly - Speaker: Mr. Cafer Tufan Yazicioglu, Turkey
  • Positive discrimination in the elderly law in Brazil and the protection of human dignity: The right to food, health, justice and labor - Speaker: Dr. Maria Goretti Dal Bosco and Ms. Maria Cristina Blanco Tarrega, Brazil
  • Attitudes towards old people among Turkish university students - Speaker: Dr. Rukiye Pinar, Turkey
  • The quest for a Convention on the Human Rights of Older Persons: An update on our progress - Speaker: Ms. Helen R. Hamlin, USA

Download our paper: "Statutory Protection of Older Adults in Canada: A Difficult Balance"


2. OBA CLE: "The Other Side of the Coin: Personal Care and the Estate Lawyer", October 16, 2013


Ameena Sultan will co-chair this program.


Kimberly Whaley and Mark Handelman will be speaking on: "The Practical Application: Acting as an Attorney for Personal Care".

  • Duties of an attorney for personal care and how to assist clients named as attorneys for personal care
  • The POA PC as "prior capable wish" and consulting with the incapable person: balancing autonomy with 'best interests'
  • Working with other decision makers, i.e. attorney for property
  • Dealing with complicated matters: joint attorneys and decision-making, foreign jurisdiction
  • Compensation of an attorney for personal care

Link to details


Materials will be blogged following the conference.


3. CBA Webinar, Health Care Post Rasouli Case-Who Decides End of Life?

October, 22, 2013 online


Mark Handelman will be speaking on Rasouli, materials will be blogged after presented


4. TV Appearance, Cable 14, Hamilton,  2013  - "Heirs and Omissions"


Kimberly Whaley, Albert Oosterhoff: Predatory Marriage


5. KAW was interviewed by Michael Mckiernan for Law Times on
Article to be blogged when it comes out. 




Kimberly Whaley attended the 2013 Summer National CBA Conference in Saskatoon, Saskatchewan.  At that conference in part she presented on Undue Influence.  Link to the Undue Influence Checklist prepared as it appears on our publication site.


In preparing for the Undue Influence discussion, a number of interesting decisions were reviewed with respect to undue influence. 


Schrader and Schrader






This matter concerned the deceased who died when she was 98 years of age and her disputed Will on the grounds of want of testamentary capacity, want of knowledge and approval and undue influence. The challenger wanted to propound a prior Will and his case was heavily dependent on what he would say was the improbability of his mother's execution of the 2006 Will if she had proper capacity, if she knew what she was doing or was not improperly influenced.


The decision reviews a great deal of witness evidence, family history and background.  In respect of the making of the 2006 Will, the drafting solicitor was examined and the evidence was accepted.  Indeed the Court found that while the drafting solicitor did not necessarily probe the deceased with a view to establishing capacity, it found nothing that happened at the meeting to raise any question mark about testamentary capacity.  The drafting solicitor gave evidence of significant amendments following the preparation provision of the draft Will which the Court found to have been the source of some of the disputed and the suspicious involvement of one of the deceased's sons. 


The Court was of the view that the deceased had testamentary capacity and furthermore that the deceased had the relevant knowledge and approval of the contents of the Will.  However the Court on undue influence found that it had been established.  The Court findings on undue influence were as follows:


[95] The law can be taken to be as set out by Lewison J., in Edwards v Edwards [2007] WTLR 1387:


"There is no serious dispute about the law. The approach that I should adopt may be summarised as follows:


i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;


ii) Whether undue influence has procured the execution of a will is therefore a question of fact;


iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;


iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator's will must be overborne, or by fraud.


v) Coercion is pressure that overpowers the volition without convincing the testator's judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator's free judgment discretion or wishes, is enough to amount to coercion in this sense;


vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness' sake to do anything. A "drip drip" approach may be highly effective in sapping the will;




ix) The question is not whether the court considers that the testator's testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent. "


[96] It will be a common feature of a large number of undue influence cases that there is no direct evidence of the application of influence. It is of the nature of undue influence that it goes on when no-one is looking. That does not stop its being proved. The proof has to come, if at all, from more circumstantial evidence. The present case has those characteristics. The allegation is a serious one, so the evidence necessary to make out the case has to be commensurately stronger, on normal principles.


[97] I have come to the conclusion that undue influence has indeed been established in this case. It is to be inferred from the following material:


(i) The vulnerability of Jessica. Although not sufficient to deprive her of capacity, it is an important point in relation to undue influence. She was apparently an admirable lady in her mid-90s, but more uncertain after her 2005 fall.


(ii) Her dependency on Nick. This is an obvious factual point. It was not total - she still had will and strength of her own, but she was more dependent on him since her fall. She would have been very worried about his moving out and ceasing to look after her.


(iii) The non-engagement of Cullens in the making of the will. At one stage in his evidence Nick suggested that she was angry with the firm because they had lost some deeds, but then he said that she told him she had rung them and had been told that they did not do home visits. The latter reason is wrong. This is an unsatisfactory part of the evidence. The engagement of the will writer brought in a firm with no prior contact with the family. It was not clear whether instructions for the will would have been dealt with by anyone at Cullens with familiarity with the family, but Nick would not necessarily have known that.


(iv) The reason given to Miss Marks for giving the house to Nick was inaccurate, and its source is likely to have been Nick. The sale of his house was not a voluntary act by Nick. It was sold by the trustee in bankruptcy, and would have been sold by the mortgagee if the trustee had not sold it. Nick was maintaining the farm house after a fashion, but that is hardly a reason for giving him the whole house. Wanting him to have a roof over his head after she had died is an understandable sentiment, but it is not apparent that a half share would have been insufficient for this purpose. Nick suggested that she might have wanted to even things up between him and his brother, on the footing that the brother's activities had devalued the property anyway. I find this implausible. I do not think that Jessica would have thought like that. Nick, however, would, and it would provide a motivation for suggestions by him that he should have the house.


(v) There is no other identified reason why Jessica would, entirely of her own volition, wish to change her will in respect of the house.


(vi) Nick's personality is an important factor. I have made findings about that above. He was a forceful man with a forceful physical presence. I repeat that I find there was no question of physical abuse, or even of real emotional abuse. I am sure that he will have experienced frustrations in looking after his elderly mother which many less volatile personalities will experience. However, the fact is he was a powerful personality and his mother was much more vulnerable.


(vii) Nick's keenly felt view that he had not been treated equally with his brother is an important point. He would be more inclined to try to even things up. I think that he did so, by way of suggestion to his mother. He had clear views about his entitlement to his "inheritance" - see above.


(viii) Nick's attempts in evidence to distance himself from a consideration of the will, and from acquiring knowledge of its contents, are an important point. The thrust of his evidence, until the marked up draft was produced, was that he did not really know much about the will. He arranged for the will writer to attend, and took his mother to the execution meeting, but did not know about the gift in his favour until a little time afterwards. His evidence distanced him from the content of the will. However, it then became apparent that he participated in a consideration of the draft. I think it unlikely that he had simply forgotten that. Furthermore, it gave him an opportunity to see the gift to him. With his hatred for his brother, and his feelings of unequal treatment, it is unlikely that he would not have looked to see what it said, particularly when the gift to him was on the same page as some of his manuscript amendments (on my findings). I do not accept his evidence that he had a thing about wills and did not like contemplating them (even his own). In any event, I am sure that his interest in seeing how he and his brother were treated would have overcome any such emotional difficulties. His direct involvement in the terms of the will, coupled with his omitting it from his evidence, are very important factors in considering whether he applied some degree of improper influence towards the gift in his favour. On my findings he will have known that he was going to get the house, and with his views on entitlement and inheritance he would not have forgotten that either. His failing to give evidence about it is likely to be rooted in a perception that it would not be helpful to the picture that he wished to present to be volunteering it.


(ix) His not disclosing the will until steps were taken to prove the 1990 will some 6 months after the death is also significant in this context. I think it is more consistent with his being aware of the circumstances in which it was drawn (of which he was less than proud) and wanting to put off the evil day of having to propound it because he had misgivings about those circumstances.


(x) I do not think that Miss Marks' attempt to ascertain whether there was pressure on her, the fruits of which are recorded on her instruction form, are a particularly strong contra-indication in this case. If the usual more subtle form of undue influence is being applied, its victim would hardly be likely to answer "Yes" to the question.


[98] In all those circumstances I find that undue influence has been proved. I think that they require the inference that Nick was instrumental in sowing in his mother's mind the desirability of his having the house, and in doing so he took advantage of her vulnerability. It is not possible to determine any more than that the precise form of the pressure, or its occasion or occasions, but it is not necessary to do so. I am satisfied that this will results from some form of undue influence.


[99] It follows that I pronounce against the 2006 will and in favour of the 1990 will.


The Will was set aside on grounds of undue influence alone.


2. Fountain Estate v. Dorland


2012 BCSC 615 (CanLII)


In this case, the deceased died when she was 90 years old, had 2 daughters, one of whom brought a claim representing the amount of cheques written for the benefit of the defendants by the deceased.


There was significant analysis of witness evidence in this case.  On the legal analysis, the concepts addressed were resulting trust; capacity to make a gift; and whether or not a gift could be set aside if procured by undue influence.  The law with respect to undue influence is set out as follows:


[64] The court will set aside a gift if it is procured by undue influence (Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353 at paragraph 23). Undue influence may be established in one of two ways: it may be positively proven or it may be presumed. Whether it will be presumed depends on whether "the potential for domination inheres in the nature" of the relationship between the parties to the transfer (Geffen at paragraph 42). Once the presumption arises, the onus shifts to the recipient or donee of the property to rebut it by showing that the transaction was the product of the donor's "full, free and informed thought" (Geffen at paragraph 45). Discharging this burden "may entail a showing that no actual influence was deployed in the particular transaction" (Geffen at paragraph 45). Finally, the size of the impugned gift may be "cogent evidence going to the issue of whether influence was exercised" (Geffen at paragraph 45).


[65] I will deal first with the question of whether the presumption of resulting trust applies, and if so whether it has been rebutted. In the course of doing that I will address the question of capacity.


The consideration of evidence and the analysis with respect to the transferor's gifts and cheques written is quite detailed and I will not review this but would rather direct you to the judgment itself to review.


[101] As earlier noted, Mrs. Fountain was declared incompetent under the Patients Property Act, R.S.B.C. 1996, c. 349, in September 2005. As a result, s. 20 of that Act is engaged. It provides:


20        Every gift...made by a person who is or becomes a patient is deemed to be fraudulent and void as against the committee if


(a) the gift...is not made for full and valuable consideration actually paid or sufficiently secured to the person, or


(b) the donee, grantee, transferee or person to whom the property was alienated or conveyed had notice at the time of the gift, grant, alienation, conveyance or transfer of the mental condition of the person.


In Taylor v. Jenkins 1986 CanLII 1007 (BC SC), (1986), 1 B.C.L.R. (2d) 207, Macdonell J. held that the phrase "shall be deemed to be fraudulent and void" raises a rebuttable presumption of incompetence. The onus is on the party seeking to uphold the transaction to rebut the presumption (Lasky (Public Trustee of) v. Prowal (1994), 7 E.T.R. (2d) 70 (B.C.S.C.) at para. 39).


[102] The evidence touching on Mrs. Fountain's capacity comes from several sources. First, the parties themselves have set out their observations and opinions as to Mrs. Fountain's cognitive abilities; second, two doctors have offered opinions on the matter; and third, Mr. Darmohray has addressed the matter in considerable detail.


[103] Julie Sutherland deposed to and testified about her mother's cognitive abilities. Prior to the fall of 2003, the only specific circumstance that Mrs. Sutherland could point to was that in 1997, 1998 and 1999 her mother sent two Christmas cards and two cheques each year rather than one. In October 2003, when Mrs. Sutherland discovered the fact that her mother's account had been depleted, she asked her mother about it. Mrs. Fountain said that she could not recall the reason for the withdrawals. She was tearful and said, "What has happened to all my money?" This account is supported by Mr. Nitti. I accept that Mrs. Fountain claimed no memory of the withdrawals from her account. After Mrs. Sutherland had obtained copies of the cheques, and when she showed them to her mother in early 2004, she testified that her mother said:


...Why did I do this?...I don't recall doing this...your dad would be so mad if he knew...I am never going to get my money back, am I?...I always thought that I was fair to you and Marilyn, but this doesn't look fair, does it?...


[107] There are two other significant aspects of the plaintiff's case touching on the question of capacity prior to the spring of 2004. First, although Mrs. Sutherland takes the position that her mother lacked the capacity to make the gifts represented by the cheques, she arranged to have her mother execute two Wills, one two months and the other six months after the last of the impugned cheques was written. Second, the lawyer who prepared those Wills was not called and has not sworn an affidavit in this trial. I have no doubt that is because he was of the view that Mrs. Fountain had the necessary capacity when he took his instructions.


[108] Based on all of this evidence, I am satisfied that Mrs. Fountain had the capacity necessary to enter into the transactions at issue.


[109] The next issue is Mrs. Fountain's capacity between September 2004 and March 2005.


[110] Dr. Schriemer was Mrs. Fountain's general practitioner from November 2001 until March 2005 when he was replaced by another doctor at the request of Ms. Dorland. He diagnosed Mrs. Fountain with Alzheimer's-type dementia. Although Dr. Schriemer did not indicate when he made this diagnosis, it was his opinion that Mrs. Fountain lacked the necessary capacity to make a Will in September 2004 and to make the deed of gift the following month. He was also of the opinion that she lacked the capacity to make a Codicil in March 2005 and likely would not have understood the contents of the affidavit she swore that month. Finally, he deposed that:


Because of her dementia, Mrs. Fountain would have been vulnerable to undue influence and financial abuse during the last few years of her life.


[111] Doctor Moreau assessed Mrs. Fountain as part of a comprehensive multi-disciplinary mental health team at the Cottonwoods day hospital on January 5, 2005. He formed the "clinical impression" that Mrs. Fountain suffered from dementia. Based on testing administered by the team, she showed "severe memory impairment" and "her [i]nsight and judgment were also impaired". Dr. Moreau expressly declined to offer an opinion about Mrs. Fountain's competency prior to January 2005.


[112] Mr. Darmohray met with Mrs. Fountain several times in that period. On three of those meetings, specifically September 29 and October 15, 2004, and March 8, 2005, the issue of Mrs. Fountain's capacity was front and centre in his mind. He made detailed notes of the specific and pointed inquiries he made of Mrs. Fountain. It was Mr. Darmohray's opinion that Mrs. Fountain had the capacity necessary to make a Will and the other documents he prepared for her.


[113] As noted above, although I accept Mr. Darmohray's evidence in the sense that he provided an accurate and careful account of what he did and said and what Mrs. Fountain did and said to him, I am unable to conclude that Mrs. Fountain had the capacity necessary to confirm a gift in that period. Even if she did have the capacity I am not persuaded that she exercised it.


[114] I reach this conclusion for several reasons. The first is the medical evidence, the second is Mrs. Fountain's conduct during the time in question, and the third relates to what Mrs. Fountain was told about what Mrs. Sutherland trying to sell her house.


3. Hoffman v. Heinrichs


2012 MBQB 133 (CanLII),  http://canlii.ca/t/fr8dl


This decision involved the deceased who died at age 89, having executed her Will leaving the entirety of her Estate to her twin brother, or if he predeceased her, to his son.  The applicant in the Will challenge was the nephew of the deceased who challenged the validity of the Will alleging suspicious circumstances surrounding its making, lack of testamentary capacity and undue influence exerted upon the deceased by the brother of the deceased.


The deceased suffered from schizophrenia for over 50 years and had been hospitalized for brief periods during her lifetime as a result of the illness.


The Court found that the deceased had knowledge and approval of her assets and that the Will was a true reflection of her intentions.


While the Court opined that the deceased suffered from schizophrenia which it said was a suspicious circumstance placing the onus on the propounder to establish she had testamentary capacity.  The Court determined that the deceased did indeed have testamentary capacity.  However on undue influence the Court relied on the principles explained by Kennedy, J. in Kohut Estate v. Kohut Estate at paragraph 41:


[41] The principles regarding proof of undue influence were explained by Kennedy J. in Kohut Estate v. Kohut reflex, (1993), 90 Man.R. (2d) 245, [1993] M.J. No. 597 (Q.B.)(QL):


38 The proof of undue influence does not require evidence to demonstrate that a testator was forced or coerced by another to make a will, under some threat or other inducement. One must look at all of the surrounding circumstances and determine whether or not a testator had a sufficiently independent operating mind to withstand competing influences. Mere influence by itself is insufficient to cause the court to intervene but as has been said, the will must be "the offspring of his own volition and not the record of someone else's". Hall v. Hall. [1868] 1 L.R. 481 (Probate Div.).


[63] The onus is on the applicant to establish that Jake exerted undue influence on Ann.  It is clear that Jake was not in the room when the will was drafted or signed.  And there is absolutely no evidence that Jake influenced Ann regarding its contents.  As I have said, it makes sense that he would be sole beneficiary.


[64] The applicant's entire argument is based on conjecture.  I accept that it would have been Jake's idea that Ann have a will and that he would have arranged the meeting at Co-operative Trust.  But there is nothing sinister about this.  The fact that he suggested that Ann have a will does not make it probable that he told her to make him the beneficiary.  It is equally probable that Jake suggested a will because Ann's husband had died and she had no children.  Therefore, it would be prudent for her to decide who she wanted to inherit her estate.


[65] What is most telling to me is that if Jake had an interest in accessing his sister's money, he could have easily done so while she was alive.  But, as I said, he was scrupulous about helping her to manage her money for her own benefit.  There is no suggestion that during the many years that he helped her with her finances, a single cheque was written for anything other than Ann's personal needs.  According to the evidence, Jake did try to get her to spend money on herself by encouraging her to buy new clothes or to get her hair done, but she was not interested in doing so.   As I said, the evidence is that Ann was always a strong-willed individual.  If Jake could not convince her to buy a dress for herself, it would be hard to believe he could get her to leave her estate to him!


[66] Moreover, while the applicant attempts to suggest there was some self-interest on Jake's part in having Co-operative Trust prepare the will, I draw the opposite inference.  Involving a trust company in preparing the will and in becoming co-executor in my view suggests that Jake wanted to ensure that there was no allegation of impropriety.


[67] The applicant has not established that any undue influence was exerted on Ann Ogilvie in the preparation of the will.


In the result, the Court dismissed the application and declared the Will valid.


4. Juzumas v. Baron


2012 ONSC 7220 (CanLII) http://canlii.ca/t/fvfc2


This recent decision we have blogged before. This decision of our Ontario Superior Court of Justice involved a man, the plaintiff, who was 89 years old at the time the reported events took place, and of Lithuanian descent, with limited English skills. His neighbor described him as having been a mostly independent widow prior to meeting the defendant, a woman of 65 years. Once a "lovely and cheerful" gentleman, the plaintiff was later described as being downcast and "downtrodden. The defendant's infiltration in the plaintiff's life was credited for bringing about this transformation. The financial exploitation, breach of trust, precipitation of fear, the flagrant display of undue influence -  all hallmarks of a predator.


The defendant "befriended" the respondent in 2006. She visited him at his home, suggested that she provide assistance with housekeeping, and eventually increased her visits to 2-3 times a week. She did this despite the plaintiff's initial reluctance. The defendant was aware that the plaintiff lived in fear that he would be forced to move away from his home into a facility. She offered to provide him with services to ensure that he would not need to move to a nursing home. He provided her with a monthly salary in exchange.


The defendant ultimately convinced the plaintiff to marry her under the guise that she would thereby be eligible for a widow's pension following his death, and for no other reason related to his money or property. She promised to live in the home after they were married and to take better care of him. Most importantly, she undertook not to send him to a nursing home as he so feared. The plaintiff agreed.


The defendant however, testified that the plaintiff had suggested that they marry on the basis of their mutual feelings of affection, romance, and sexual interest, Justice Lang found otherwise. The defendant, who had been married approximately 6-8 times (she could not remember the exact number), had previous "caretaking" experience: prior and concurrent to meeting the plaintiff, the defendant had been caring for an older man who lived in her building. She had expected to inherit something from this man in addition to the pay she received for her services and was left feeling sour as she had not. Justice Lang considered this evidence as an indicator that the defendant was sophisticated in her knowledge of testamentary dispositions, and that she knew that an expectation of being named as a beneficiary to someone's Will on the basis that she provided that person with care is unenforceable.


The day before their wedding, the soon-to-be newlyweds visited a lawyer who executed a Will in contemplation of their marriage. In spite of the obvious age gap and impending marriage, the lawyer did not discuss the value of the plaintiff's house ($600,000) or the possibility of a marriage contract. Interestingly, the lawyer did not meet with the plaintiff without the defendant being present.


After the wedding ceremony, which took place at the defendant's apartment, she dropped him off at a subway stop so that he would take public transit home alone. The defendant continued to care for the plaintiff several hours a week and to receive a monthly sum of money from him.


Despite the defendant's promise that she would provide better care to the plaintiff if they married, testimonies from the plaintiff's tenant and neighbour, which were both found to be credible, attested that the relationship degenerated progressively. The tenant described the defendant, who had introduced herself as the plaintiff's niece, as "'abusive', 'controlling' and 'domineering'".


With the help of a plan devised over the course of the defendant's consultation with the lawyer who had drafted the plaintiff's Will made in contemplation of marriage, the defendant's son drafted an agreement which transferred the plaintiff's home to himself, no this mother to financially protect her. The "agreement" acknowledged that the plaintiff did not want to be admitted to a nursing home. Justice Lang found that even if it had been shown to him, the plaintiff's English skills would not have sufficed to enable him to understand the terms of the agreement, and that the agreement did not make it clear that it entailed a transfer of the plaintiff's home.


The plaintiff, the defendant and her son attended the lawyer's office in order to sign an agreement respecting the transfer of the plaintiff's property. Justice Lang found that the lawyer was aware of the plaintiff's limited English skills; that overall his evidence indicated that it had not been explained to the client with sufficient discussion, or understanding the consequences of the transfer of property and moreover, that he was in the court's words "virtually eviscerating the Will he had executed only one month earlier..."; that he did not meet with the plaintiff alone; and only met with the parties for a brief time. Additionally, Justice Lang found that the agreement signed by the plaintiff was fundamentally different from the agreement he had been shown by the defendant and her son at the plaintiff's home.




Perhaps most importantly, Justice Lang found that the lawyer did not appreciate the power imbalance between the parties. In fact, it seems the lawyer was under the impression that the defendant, and not the plaintiff, was the vulnerable party.


The lawyer's notes likely read as a whole, but unknown on the reasons alone, indicated that the plaintiff was "cooperative" during the meeting. Justice Lang interpreted the lawyer's use of this word as indicating that the plaintiff was "acceding to someone else's direction," and not a willful and active participant to the transaction. In addition, Justice Lang found that the plaintiff had been under the influence of emotional exhaustion or over-medication at the time the meeting took place. The judge found, based on testimonial evidence that this may have been because the defendant may have been drugging his food as suspected by the plaintiff.


Sometime after the meeting, the plaintiff's neighbor explained the lawyer's reporting letter to him, and its effect in respect of his property. With his neighbor's assistance, the plaintiff attempted to reverse the transfer by visiting the lawyer at his office on three separate occasions. Interestingly, when he would visit, a few minutes after his arrival, his "wife" would appear. The lawyer explained to the plaintiff that the transfer could not be reversed because it was "in the computer."


Although the plaintiff initially sought a declaration that his marriage to the defendant was a nullity and void ab initio, he did not pursue this claim, instead seeking a divorce/dissolution of the marriage, which was granted in its place.


In considering the transfer of property, Justice Lang applied and cited McCamus' Law of Contracts, which outlines a "cluster of remedies" that 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." Justice Lang outlined the applicable legal doctrines of undue influence and unconscionability, stating: "if any of these doctrines applies, the weaker party has the option of rescinding the agreement."


Justice Lang found that a presumption of undue influence existed between the parties in this case as the relationship in question involved an older person and his caretaker. The relationship was clearly not one of equals. In such a case, the court noted that the defendant must rebut that evidence by showing that the transaction in question was an exercise of independent free-will, which can be demonstrated by evidence of independent legal advice or some other opportunity given to the vulnerable party which allows him or her to provide "a fully-informed and considered consent to the proposed transaction."


As for the doctrine of unconscionability, Justice Lang stated that the doctrine "gives a 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. These presumptions were not rebutted by the defendant in this case.

In addressing the defendant's claim of quantum meruit for services rendered, Justice Lang found that the period during which services were rendered could be distinguished as two categories: pre-marriage and post-marriage.


During the pre-marriage period, the defendant undertook to care for the plaintiff without an expectation or promise of remuneration, and persuaded the plaintiff to compensate her with a monthly income. Justice Lang found that no additional remuneration could be claimed for that period.


During the post-marriage period, Justice Lang found that the defendant had an expectation that she would be remunerated by the plaintiff, and that the plaintiff had agreed to do so. The Court stated:


Undue Influence


"[142]      In my view, Galina's [defendant] exercise of undue influence and unconscionable conduct pervaded the relationship and left her with "unclean hands". Although this conduct was most prominent during the final months of her relationship with Kazys [plaintiff], when it is considered along with "all the circumstances" of this case, the magnitude of her reprehensible behaviour is such that it taints the entire relationship. Accordingly, I find that Galina is not entitled any amount for her quantum meruit claim


[144]      In the result, the transfer of the property to Yevgeni Baron dated May 14, 2009, receipted as AT2069123 is set aside.   That property, known municipally as 14 MacKenzie Crescent, Toronto, and more particularly described in Schedule A to the Further Amended Statement of Claim in Court File No. CV-10-399376, vests in the name of Kazys (Charles) Juzumas pursuant to s. 100 of the Courts of Justice Act, R.S.O. 1990, c. C.43.  A declaration will also issue that the transfer to Yevgeni Baron is void and that Kazys Juzumas, named as Charles Juzumas in the transfer, holds title to the property free of any claim by Yevgeni Baron and/or Galina Baron.  Galina Baron's claim for $120,000 is dismissed.  As I conclude that the property was not a matrimonial home and that the parties separated on the date of marriage, I dismiss Galina's claim against the property and for equalization of net family property.  I also dismiss both Yevgeni's and Galina's quantum meruit claims.  I grant the requested divorce to take effect in the usual 31 days.  In the event the Barons are no longer represented by counsel, their approval to the form and content of the judgment is hereby dispensed with, provided that, as counsel have agreed, the vesting order shall not be registered on title before the expiration of the appeal period."


Substantial costs were awarded in favour of the older adult plaintiff.


5. Kohut v. Kohut Estate


1993 CarswellMan 308, 90 Man. R. (2d) 245  


This case involves a Will challenge and the issues being undue influence and lack of testamentary capacity.


On undue influence the Court found as follows:


30          Mary Kohut and Alexander Dobrowolski detailed the circumstances which they believe amount to undue influence on the part of Anne Szklaruk. Mr. Dobrowolski testified that his relationship with Anna Kohut was excellent, friendly, and that she spoke openly to him. He said there was grave and serious animosity expressed by the deceased towards her daughter, Anne Szklaruk. The history between the two of them during the period of time when all of the wills were prepared, was extensive and reflected a belief on Anna Kohut's part that she was mistreated by her daughter Anne Szklaruk, both while living in St. Martin, and when she would visit her at her home. She had told Mr. Dobrowolski she was fearful of her daughter, Anne, and she was concerned that she was attempting to take her property.


31          None of these allegations were borne out by evidence from anyone who knew the family at the time.


32          The evidence of Anne Szklaruk and Karen Kisil is diametrically opposite. They testify, as did Linda Ingrelli, that there was a very happy, warm, kind and gentle relationship between Karen Kisil, Anne Szklaruk, and her mother. Anne Szklaruk had, from the inception, looked after her mother's banking and her affairs. There was a warm and affectionate relationship manifested by family gatherings, a picture of one of them was filed in evidence, and the allegations of mistreatment were categorically denied. Coupled with this scenario, there were allegations, testified to by Mrs. Szklaruk, Mrs. Kisil and Linda Ingrelli, that the deceased disliked and mistrusted Mr. Dobrowolski. They gave evidence that the deceased thought that Mr. Dobrowolski was a "ditko" (meaning "devil"). She said her mother was intimidated by Mr. Dobrowolski. She said he would come and visit and stay long periods of time, and she was afraid of him and did not wish to have anything to do with him. This story is supported by the information that Mr. Baryluk received regarding the antagonism between the deceased and Mr. Dobrowolski.


33          There was serious conflict between Anne Szklaruk and Mr. Dobrowolski over the obtaining of titles leading to a complaint to the Law Society, which further fanned the flames of hostility between the parties.


34          One would have to observe that Mr. Dobrowolski took more than a legal interest in this client. One wonders why, given the existence of the various wills which kept changing the bequests between the two sisters, it would not have been obvious that while the deceased was in the company of Mary Kohut and Mr. Dobrowski she complained about Anne Szklaruk, and while in the company of people like Linda Ingrelli, Karen Kisil and Mike Baryluk, she complained about the influence of Mary Kohut and Mr. Dobrowolski.


Mental Incapacity


35          The assessments of Mr. Dobrowolski throughout his dealings with the deceased were that she possessed complete knowledge and understanding of what she was doing in preparation of her will. She passed all the tests of knowing who her family members were and what assets she had. Mr. Sarbit, (who had made an even earlier will), Mr. Parashin and Mr. Baryluk, along with Mr. Glowacki, all testified, notwithstanding her age, she appeared to them to possess knowledge and understanding sufficient to make a will. The only argument raised, that she did not have proper mental capacity based upon Banks and Goodfellow, [1870] 5 L.R. 549, was some belief that she, in stating to Mr. Baryluk that Mary Kohut had already received "hers" (meaning her share of the estate) she must have meant Anne Szklaruk, who had received a substantial cash sum, along with other members of her family. I could not conclude this to be the case. Mary Kohut did receive a $5,000.00 bequest which was increased by $2,000.00 later on, and it is equally possible that in the deceased's mind this was adequate payment to Mary Kohut. Absent, any evidence to the contrary, I am unable to conclude that Anna Kohut, during preparation of any of the wills, did not possess capacity. The only issue to be determined is whether or not she was unduly influenced by either Anne Szklaruk on the one side, or Mary Kohut and Alexander Dobrowolski on the other, or by both sides.


36          The facts of this case demonstrate the mental frailty of some elderly people and the extra caution that a lawyer must exercise in similar circumstances. I have no hesitation in accepting the evidence of all of the lawyers involved with this case in their assessment of the mental capacity of the deceased. They seemingly all considered the indicia for testing mental competence. Knowledge of the assets, clear appreciation of the beneficiaries and the surrounding circumstances. However capacity is interwoven with the determination by which an elderly testator knows his or her own mind and the susceptibility to external prevailing influences.


37          Where for no apparent reason an elderly person changes a will dramatically, as occurred here, lawyers ought to be concerned about the possibility of the testator having been unduly influenced. The approach to be taken will turn on the circumstances, but when a lawyer is contacted by the beneficiary who is to be favoured by a significant change, inquiries ought to be made of the reason for the changes. In this case lawyers knew or ought to have inquired about previous wills and the reasons for the changes.


38          The proof of undue influence does not require evidence to demonstrate that a testator was forced or coerced by another to make a will, under some threat or other inducement. One must look at all of the surrounding circumstances and determine whether or not a testator had a sufficiently independent operating mind to withstand competing influences. Mere influence by itself is insufficient to cause the court to intervene but as has been said, the will must be "the offspring of his own volition and not the record of someone else's". Hall v. Hall, [1868] 1 L.R. 481 (Probate Div.).


39          Several of the wills prepared in this case for the deceased, Anna Kohut, do not pass the test. It is obvious to me that while in the company or under the influence such as it was of Anne Szklaruk, the testatrix clearly preferred her interests over those of her daughter Mary. On the other hand, while with her daughter, Mary Kohut, or with Mr. Dobrowolski, the testatrix was equally influenced to favour that person. The evidence tendered by both sides to this issue I do not conclude was untrue. When the deceased spoke to her daughter Mary about her and her sister being two equals, I conclude those were her sentiments at the time, given the influence she was under. What she on other occasions said about Mr. Doborowski appears more to be a repitition of the sentiments which Anne Szklaruk, held about him which she adopted.


40          I have expressed the view that I thought Mr. Dobrowolski's connection with his client in this case went beyond his role as solicitor, which is partly manifested by the fact that he identified closely with Mary Kohut. I have no doubt he believed that he thought the fair disposition of Anna Kohut's estate would be to divide it proportionately between her two daughters. This belief, although not stated as such, flies in the face of some of the earlier wills, where Anna Kohut left the major share of her estate to her daughter Anne Szklaruk. It does appear to me that the deceased may have decided to prefer her daughter Anne Szklaruk because of a much longer and closer relationship with her than she had with her daughter Mary. Mary had been absent for approximately fifteen years with little contact and even following that period her contact was far less frequent that Anne Szklaruk's.


41          In the aging mind of Anna Kohut it is difficult to determine whether or not she was able to remember time frames exactly, although she certainly knew who her daughters were and the amount of the estate she had. As well intentioned as Mr. Dobrowolski may have been it is not up to the lawyer to make the will for a client. A lawyer's duty is to follow the instructions of an informed client who is capable of giving instructions freely and voluntarily and not as a result complying with the suggestions made by someone exerting a stronger will. In many cases this may be difficult to determine, but repeated changes at the behest of one party or another is a clear signal.


42          It is therefore my conclusion that the latest will in 1987, prepared by Mr. Baryluk, came about as a result of the undue influence, perhaps innocently exerted by Anne Szklaruk, as did the will prepared by Mr. Parashin. Equally, the two wills, contained in Exhibit #8, prepared by Mr. Dobrowolski, appear to be the product of the influence exercised by Mary Kohut and Alexander Dobrowolski, albeit innocently so. It is more likely than not that the three of the four last wills prepared by the deceased were not made freely and in fact were the product of undue influence, as l have earlier described it, i.e. the result of what those around her had in mind and not the exercise of the deceased's own volition, albeit influence innocently exerted.


6. Dmyterko Estate v Kulikowsky


1992 CarswellOnt 543, 47 E.T.R. 66


This case involves a great deal of analysis of the doctrine of undue influence. 


The basis for the presumption of undue influence is the nature of the relationship between the donor and the donee, where one person has the ability to dominate the will of the other, whether through manipulation, coercion, or outright but subtle abuse of power. The deceased had a very close relationship with the defendant, who was his eldest daughter. By the time he transferred his house and the $17,000 to her, he had become both physically and emotionally dependent on her so that she was in a position to exert influence on him and to dominate him. Therefore, the presumption of undue influence arose.


The only evidence to rebut the presumption was that of a lawyer who attended on the deceased when the transfer of the house was made. Although the lawyer acted in good faith and believed he was carrying out the true intentions of the deceased, he did not take the precautions necessary in the circumstances to ensure that the court would be satisfied that the deceased had acted independently. He did not meet with the deceased without the defendant being present and with an independent interpreter, nor did he explain to the deceased the full legal consequences of the deed, particularly its irrevocability. Further, he relied on the defendant's assurances of her father's mental capability.


Therefore, although there was no evidence of actual influence exerted by the defendant to coerce her father to make the gifts to her, the timing and circumstances of the gifts suggested undue influence.


Regarding the cottage, when the transfer of his interest was made in 1976 the deceased was still living in his own home and was independent, so that the circumstances of the relationship between the deceased and the defendant did not give rise to the presumption of undue influence.


As to the quantum meruit claim, where the court refuses to give effect to a transaction because of the presumption of undue influence, it will not enforce as a debt the failure of the expected benefit. The defendant was to be treated as a volunteer and as such could not make a successful quantum meruit claim.


Regarding the issue of undue influence, the Court made the following analysis:


88          The plaintiff's position is that the following three transfers of property by Mr. Dmyterko are tainted by the undue influence of Stella, either actual or presumed, and are therefore voidable: (1) the transfer of 19 Stuart Crescent in 1981; (2) the transfer of $17,000 to Stella to buy Canada Savings Bonds pursuant to the 1979 power to attorney; and (3) the transfer of his one-seventh interest in the cottage in 1976.

89          The classic statement of the doctrine of undue influence from Allcard v. Skinner (1887), 36 Ch. D. 145 , [1886-90] All E.R. Rep. 90 was recently reaffirmed by the Supreme Court of Canada in the case of Geffen v. Goodman , supra. Wilson J. quotes first from the decision of Cotton L.J.:


Does the case fall within the principles laid down by the decisions of the Court of Chancery in setting aside voluntary gifts executed by parties who at the time were under such influence as, in the opinion of the Court, enabled the donor afterwards to set the gift aside? These decisions may be divided into two classes - first, where the court has been satisfied that the gift was the result of influence expressly used by the donee for the purpose; second, where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor.


(p. 369 [S.C.R.]) She also quotes from the articulation of the doctrine by Lindley L.J.:


First, there are the cases in which there has been some unfair and improper conduct, some coercion from outside, some overreaching, some form of cheating, and generally, though not always, some personal advantage obtained by a donee placed in some close and confidential relation to the donor...

The second group consists of cases in which the position of the donor to the donee has been such that it has been the duty of the donee to advise the donor, or even to manage his property for him. In such cases the Court throws upon the donee the burden of proving that he has not abused his position, and of proving that the gift made to him has not been brought about by any undue influence on his part. In this class of cases it has been considered necessary to show that the donor had independent advice, and was removed from the influence of the donee when the gift to him was made.

(pp. 369-370 [S.C.R.])

90          The Supreme Court in the Geffen case conducted an extensive re-evaluation of the doctrine of undue influence, both in the context of pure gifts as well as commercial transactions. In the case of gifts, the reason for judicial scrutiny is "because there is something so completely repugnant about the judicial enforcement of coerced or fraudulently induced generosity." (p. 376 [S.C.R.]) The court reviewed the steps to take to determine whether a gift should be set aside as tainted by undue influence.

91          First, the basis for the presumption is the nature of the relationship between the donor and the donee. That relationship is not merely or even necessarily one of trust or confidence, but rather a relationship where one person has the ability "to dominate the will of another, whether through manipulation, coercion, or outright but subtle abuse of power." However, Wilson J. makes it clear that the court does not wish to overstate the requirements, for in her view, "To dominate the will of another simply means to exercise a persuasive influence over him or her." (p. 377 [S.C.R.])

92          Second, in the gift situation, there is no need to demonstrate, as an added prerequisite for the presumption, that the gift created a "manifest disadvantage" to the donor (National Westminster Bank Plc. v. Morgan, [1985] A.C. 686 , [1985] 1 All E.R 821 (H.L.)), because while every gift, by its very nature, is disadvantageous to the donor, on the other hand, the donor perceives it as being advantageous in some way.

93          Third,


Once the plaintiff has established that the circumstances are such as to trigger the application of the presumption, i.e., that apart from the details of the particular impugned transaction the nature of the relationship between the plaintiff and defendant was such that the potential for influence existed, the onus moves to the defendant to rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra , at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own 'full, free and informed thought'. Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised.


(p. 379 [S.C.R.])

94          This court's first task, therefore, is to examine the relationship of Stella and her father at each of the relevant times in order to find whether there was a dependency which created the potential for influence or domination by Stella of her father in connection with these transfers.


97          In reaching this conclusion, I do not discount the evidence that Mr. Dmyterko was a strong-willed man who could not be pushed around. However, once he was a double amputee, knowing that he was to be totally dependent on his caregivers for the rest of his life, I am satisfied that his vulnerability made him subject to influence and domination.

98          Therefore, the presumption of undue influence arises, and it is up to the defendant to rebut it.


103          The question now is whether this court can be satisfied, based on the evidence, that Mr. Dmyterko had an independent explanation of exactly what he was doing, which he understood and in circumstances where he was free to exercise his independent will.


104          The classic statement of the test is found in the 1928 decision of the Privy Council in Inche Noriah v. Shaik Allie Bin Omar, [1929] A.C. 127 , [1928] All E.R. Rep. 189, at p. 135 [A.C.]:


It is necessary for the donee to prove that the gift was the result of the free exercise of independent will. The most obvious way to prove this is by establishing that the gift was made after the nature and effect of the transaction had been fully explained to the donor by some independent and qualified person so completely as to satisfy the Court that the donor was acting independently of any influence from the donee and with the full appreciation of what he was doing ...


105          The facts and result of the Inche Noriah case are instructive. There an elderly and illiterate aunt executed a deed of gift of her only two properties to her nephew who looked after her completely and managed all of her affairs, leaving herself only with a gross income of $30 per month. The nephew had called in a lawyer to give his aunt independent advice in connection with the gift. The lawyer was first called by the nephew and told that his aunt wished him to prepare a deed in favour of the nephew. He then attended on the aunt and received her instructions to prepare the deed. He saw the nephew several times at his office after that, and on one occasion told him that he should get another solicitor to protect his interests. He prepared the deed and took it to the aunt's house for signature. The nephew was there when he arrived but was not present during the explanation. The lawyer read the deed to the aunt, and told her that it was irrevocable and that it gave the property absolutely to the nephew. He asked her if she was signing it voluntarily. He said that he did not know that these properties constituted practically all she had, nor did he advise her that as an alternative she could leave the properties to her nephew by will. His fees were paid by the nephew from rents collected on the properties of the aunt.


107          The conclusion of the Privy Council was that although the lawyer acted in good faith, he received much of his information from the nephew. He did not bring home to the mind of the donor the consequences to herself of what she was doing, or that she could have accomplished the same objective without undue risk to herself by retaining the property until her death.


In their Lordships' view the facts proved by the respondent are not sufficient to rebut the presumption of undue influence which is raised by the relationship proved to have been in existence between the parties; and they regard it as most important from the point of view of public policy to maintain the rule of law which has been laid down and to insist that a gift made under circumstances which give rise to the presumption must be set aside unless the donee is able to satisfy the Court of facts sufficient to rebut the presumption.(p. 136 [A.C.]) (emphasis added)


108          I note that in the Geffen v. Goodman case, although the Supreme Court was satisfied with the independent advice given to Mrs. Goodman by the solicitor, Wilson J. acknowledged that in other situations the fact that her brothers whose children benefitted from the trust she set up took a leading role both in initiating her meeting with the solicitor and in the initial meeting might militate against a finding of independent advice. However, after her brothers left the city and returned to their homes, Mrs. Goodman continued to see the solicitor and to seek his advice on her own initiative. This fact demonstrated to the court that Mrs. Goodman was ultimately acting independently.


112          In this case, although Mr. Kirsh acted in good faith, clearly believing that he was carrying out the true intentions and wishes of Mr. Dmyterko, he did not take the objective precautions in the circumstances to ensure that a court could be satisfied that Mr. Dmyterko was acting independently. These included, at a minimum, meeting with him without Stella and with an independent Ukrainian translator, explaining the full legal consequences of a deed including irrevocability, along with alternative courses of action open to him if he truly wished to benefit Stella over the other daughters. It would also be prudent to enquire as to the reasons why the donor wished to benefit one daughter over the others, and to use that enquiry to again emphasize the consequences of the transfer. It should be explained to a donor in the position of Mr. Dmyterko that a gift to someone in a position of influence such as Stella is subject to later court challenge, and therefore the utmost precautions must be taken to ensure that the donor is acting freely and independently, and that is the reason for all of the steps and procedures that the donor is being asked to take over and above those which would normally accompany an arms' length transfer. Finally, it is most prudent that the donor immediately advise either his other potential claimants or perhaps an independent party such as a clergyman or other friend of what he has done. When the transaction is treated as a secret, the inevitable consequence is that its propriety and voluntariness are viewed with suspicion: Taylor v. Yeandle (1912), 27 O.L.R. 531, 8 D.L.R. 133 (Div. Ct.)


114          Because of the important public policy considerations involved in this issue, several courts over the years have been unable to find that the presumption was rebutted even where the donor had been advised by a solicitor: for example, Inche Noriah , supra, Re Craig; Meneces v. Middleton, [1971] Ch. 95, [1970] 2 All E.R. 390 ; Donnelly v. Jesseau (1936), 11 M.P.R. 1 (N.B. S.C.) ; Anderson v. Elsworth (1861), 30 L.J. Ch. 992, 3 Giff. 154, 7 Jur. N.S. 1047, 66 E.R. 363 . In the latter case, the solicitor testified that he fully explained to the donor that a deed would revoke any previous will to the extent that it affected the same lands, and that once made, it was irrevocable and could not be altered as a will could. The donor then instructed the solicitor that she wished to dispose of the lands by deed rather than by will. The deed was to her niece with whom she was living at the time, and she told her solicitor that she wished to benefit this niece who had always been good to her, had improved her condition and provided a good home, and that her other relations had neglected her and she did not wish to benefit any of them. In evaluating this situation, the court considered that the donor was consulting the solicitor about the final disposition of her property and chose a deed because it was cheaper, but that it had not been explained to her that it was an immediate disposition and not a legacy. At p. 369 [E.R.] of the report the court says:


Nothing could be more improvident than for a woman at her time of life to dispose of the whole of her property so as to leave to herself nothing. No doubt the gift was to a person with whom she was living and who was kind to her. But the question now is whether she understood that she was from the moment she executed the deed, absolutely parting with the whole of her property ... There is no evidence to shew that Mr. Taylor ever told this aged woman that such a deed as he had prepared was irrevocable, and that she ought to reserve to herself for life the use of the property, which she would have retained in case she had executed a will ...

Where an instrument is executed by a person in the situation of this poor woman - assuming that she was of sufficient capacity to dispose of her property - to make her voluntary and improvident deed of gift valid, it must be proved by those who claim under it that the donor perfectly understood the whole nature and effect of the deed.


120          In my view, it is impossible to divine Mr. Dmyterko's true intent from this vantage point. The law is clear that the doctrine of undue influence does not exist to save a person from his own folly (Allcard v. Skinner , supra, at pp. 182-183 [Ch. D.]). If Mr. Dmyterko gave the deed understanding its full significance, then thought better of it afterward, the law cannot assist. But if acting under the influence of Stella, he made the deed but did not understand the full consequences including irrevocability, then this court must step in to avoid the deed, and not allow a gift to stand when the court is not satisfied that it was freely and voluntarily made.


121          In this case, I have discounted Mr. Dmyterko's true wishes as a factor in the analysis, as the evidence does not allow this court nor his own daughters to know those wishes. The issue is therefore left to be decided on the objective assistance to the court of the independent legal advice given at the time of the transfer, as there is no other evidence capable of rebutting the presumption. For the reasons stated above, I have found that this court cannot be satisfied that Mr. Dmyterko fully understood what he was doing, nor that he acted freely and independently. The presumption of undue influence has not been rebutted in respect of the transfer of 19 Stuart Crescent.

122          There was no evidence of actual influence exerted by Stella over her father to coerce him to make the gifts to her. However, the timing and circumstances of the gifts, particularly in light of the history of the close relationship between the father and all of his daughters, do not alleviate the concerns of the court.


126          During the relevant time periods of these two gifts, 1982 and 1984, the relationship between Stella and her father was the same one of dependency as in November, 1981, or more so. Therefore the presumption of undue influence arises, and there is no evidence to rebut it. If it is argued that Stella was given the authority by her father to make gifts to herself using the power of attorney at the time that it was executed, February, 1979, I find that the relationship of dependency existed by that time as well. Mr. Dmyterko had been living with Stella since the spring of 1978, except for the period of November/December when he had his first amputation. He was living with her again but now as an amputee. He came to Mr. Kirsh's office in a wheelchair. Although he may not have been as dependent as after the second leg was removed, he was a sick, elderly man who could not walk or care for himself. I am satisfied that the relationship giving rise to the presumption existed at that time as well.


127          The power of attorney appears to have been a perfunctory matter, and there was no evidence as to any particular explanation of its effect or its use to Mr. Dmyterko. Nor was it the evidence that Mr. Dmyterko's instructions to Stella to spend the money on him and on her were given in Mr. Kirsh's presence.

128          The presumption of undue influence is not rebutted in respect of these gifts of money, and it is therefore not open for this court to conclude that it was her father's voluntary intention to make the gifts, and therefore Stella acted in accordance with her fiduciary duty.

129          I also note the authority of the cases of Walker v. Smith (1861), 29 Beav. 394, 54 E.R. 680 , followed in Taylor v. Yeandle , supra, and in Vanzant v. Coates (1917), 40 O.L.R. 556, 39 D.L.R. 485 (C.A.) that the evidence of the gifts cannot be taken into account if it comes only from the recipient. There must be some independent evidence. This rule goes hand in hand with the requirement of independent advice for rebutting the presumption of undue influence.


133          The plaintiffs argue this ground in the alternative. The rule is stated by the British Columbia Court of Appeal in Morrison v. Coast Finance Ltd. (1965), 54 W.W.R. 257, 55 D.L.R. (2d) 710 , at p. 713 [D.L.R.] as follows:


A plea of undue influence attacks the sufficiency of consent; a plea that a bargain is unconscionable invokes relief against an unfair advantage gained by an unconscientious use of power by a stronger party against a weaker. On such a claim the material ingredients are proof of inequality in the position of the parties arising out of the ignorance, need or distress of the weaker, which left him in the power of the stronger, and proof of substantial unfairness of the bargain obtained by the stronger. On proof of those circumstances, it creates a presumption of fraud which the stronger must repel by proving that the bargain was fair, just and reasonable ... or perhaps by showing that no advantage was taken ...


In the cases of 19 Stuart Crescent and of the bonds, we are dealing with gifts rather than bargains. It is the doctrine of undue influence rather than the doctrine of unconscionability which is apposite. One cannot say that the cottage transfer was a "bad bargain" on the whole because Mr. Dmyterko was relieved of his share of the cottage expenses while still being able to use and enjoy the cottage with his family as before. Therefore the tests for unconscionability are not met in the case of the cottage.


149          The defendant shall return the house at 19 Stuart Crescent to the estate and account to the estate for all rents actually received since the date of transfer minus any moneys expended by the defendant from her own funds or from those rentals, for upkeep, taxes, and all expenses in relation to the operation of the property with interest. From the time when the property was occupied by the defendant or her family members rent-free, she shall account to the estate for occupation rent based on the last amount actually charged to a third party for the main part of the house only, plus the allowable annual increases under applicable rent regulation legislation for each relevant year, less all annual expenses, plus interest.


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Contact Info

10 Alcorn Avenue, 

Suite 301
Toronto, ON, M4V 3A9
Tel: (416) 925-7400 
Fax: (416) 925-7464

Kimberly A. Whaley
C.S., TEP.
(416) 355-3250
Mark Handelman
Firm Counsel
(416) 355-3254

Ameena Sultan
(416) 355-3258


Benjamin D. Arkin
(416) 355-3264 

Heather B. Hogan
(416) 355-3262
Deborah Stade
Office Manager
(416) 355-3252
Bibi Minoo
Estates Clerk
(416) 355-3251

Marylin Tait 

Legal Assistant

(416) 355-3255


Leigh Wallace 

Legal Assistant

(416) 355-3253




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Whaley Estate Litigation