Whaley Estate Litigation
 Whaley Estate Litigation Newsletter Vol.4 No. 2 May 2014



Thank you for your continued feedback, comments, enquiries and contributions at: newsletter@whaleyestatelitigation.com


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

  • Will, Estate, Trust Disputes
  • Advising Fiduciaries
  • Dependant Support Claims
  • Passing of Estate, Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes
  • Consent and Capacity Board Proceedings 
  • End of Life Decisions
  • Treatment Decisions
  • Elder Law
  • Elder Financial Abuse
  • Solicitor's Negligence
  • Opinions
  • Agency Services
  • Substitute Decisions Act, S.3 Counsel
  • Mediation 


Please Enjoy, 


Kimberly A. Whaley
Whaley Estate Litigation



1. 2014 Canadian Legal Lexpert Directory


Kimberly Whaley is now listed in the 2014 Canadian Legal Lexpert Directory. Being included in the Directory is an acknowledgement of excellence by a practitioner's own peers and colleagues.






Kimberly Whaley spoke at the Six-Minute Estates Lawyer program on April 29, 2012 on: Responsibility of Solicitors Facing Undue Influence Issues. A link to this article can be accessed on our website: link here 


3. OBA, Trusts and Estates Law, April 22, 2014, Dinner with Your Honourable Estate List Judges


On April 22, 2014, the Ontario Bar Association, Estates and Trusts Section, held its bi-annual "Dinner with Your Honourable Estates List Judges."  The dinner, chaired by Ameena Sultan of our firm, was well-attended. 


The judges in attendance were: Justice Whitaker, lead judge of the Estates List, Justice Newbould, lead judge of the Commercial List and Justice McEwen.  To start the evening, Ambie Edgar-Chana provided the case comment on the Superior Court decision in Guest v. Lott.  The judges then spoke to members of the Estates bar about the transition of estates matters from the Civil List to the Commercial List, how the changes will affect proceedings, and what counsel can to do assist the judges dealing with estate files. The evening provided counsel with the unique opportunity to speak with and hear from judges in a less formal setting than the courtroom.  As the event is held every two years, the next dinner will be held in the Spring of 2016.


4. Estate Planning and Litigation Forum, Langdon Hall


Kimberly Whaley participated in the Estate Planning and Litigation Forum, held at Langdon Hall, Cambridge, Ontario on May 12-14. Kim's paper, "Predatory Marriages: Legal Capacity to Marry and the Estate Plan" can be accessed on our website: link here


5. Money and Family Law


Kimberly Whaley's article, Part I, Spousal Claims Against Estates and Other Claims Arising out of Remarriages, was published in Issue 29-2, February 2014; and Spousal Claims Against Estates and Other Claims Arising out of Remarriages, Part II, was published in Issue 29-3, March 2104


6. Canadian Bioethics Society, Vancouver, B.C.


Mark will be attending the Canadian Bioethics Society Annual Meeting in Vancouver on May 28th - 31st, 2014.  He will be conducting a workshop, "Cuthbertson v Rasouli, Doors Left Open", in which he will discuss this Supreme Court of Canada Judgment on end-of-life decision-making and offer ethicists from across Canada suggestions on avoiding and resolving treatment conflicts at the end of a patient's life. 





Jennifer F. Hillman, is a Partner at Ruskin Moscou Faltischek, P.C., in New York, who focuses in the area of trust and estate litigation, and shares a mutual interest in the development of the law of predatory marriages.


Jennifer and I met a few weeks ago and she kindly provided me with some interesting New York State cases, as well as information on some initiatives that she is working on together with some of her colleagues on statutory amendments.


Predatory marriages are occurring in increasing frequency. My updated paper linked above was the subject of discussion this past week in a session led by myself and Anna Laing of the Fasken Martineau DuMoulin LLP Vancouver office.


Jennifer kindly agreed to contribute to WEL's Newsletter this month and her article appears below. She can be reached at jhillman@rmfpc.com


1. New York Decisions Utilize Equitable Estoppel to Prevent Abusers of the Elderly From Profiting From Their Wrongs, by Jennifer F. Hillman, Partner, Ruskin Moscou Faltischek, P.C.


"Elder abuse, including the financial exploitation of elderly individuals who have become mentally incapacitated is an often well-hidden problem."[1]  This quote prominently appeared in a 2010 New York appellate level decision which highlighted a specific type of elder abuse where a person takes unfair advantage of an individual who lacks the capacity to enter into a marriage or otherwise utilizes fraud and undue influence to secretly marry the individual.  Because of the language of the New York Estate Powers and Trust Law (EPTL), these alleged surviving spouses could take a significant portion of a decedent's estate at the expense of the intended heirs.  Fortunately, in the decision discussed below, the New York appellate courts found that equity may prevent an inequitable result in these cases. 


The Statutes


EPTL 5-1.1-A allows a surviving spouse a personal "right of election" to take a share of a decedent's estate when the parties are in fact married on the date of the decedent's death.  A husband or wife is a surviving spouse within the meaning of EPTL 5-1.1-A unless it can be established satisfactorily to the court that any of the grounds for disqualification contained in EPTL 5-1.2 exist.  


Currently, New York is one of the few American states where after-death challenges to the validity of a marriage are permitted under the Domestic Relations law.  Yet, this status change has no effect on property rights to the decedent's estate because of the explicit requirement within the disqualification statute that an annulment or declaration that the marriage was a nullity must have been in effect when the deceased died.  Thus, a voidable marriage due to force, duress, or incompetence may be annulled after death, but a so-called scoundrel spouse or death-bed bride or groom will still be able to take an elective share of the decedent's estate because the marriage was not determined to be void prior to the decedent's death.  


The Cases


In Campbell v. Thomas,[2] while the decedent's primary caretaker was away on a one week vacation, the defendant, the alleged surviving spouse, married the decedent in a secret ceremony and subsequently proceeded to transfer the decedent's assets into her own name or their joint name. 


After the decedent passed away, the intended beneficiaries of his estate commenced an action in the Supreme Court, Putnam County, seeking a judgment declaring the marriage between the defendant and the decedent null and void because the decedent lacked the capacity to enter into the marriage due to his severe dementia.  The intended beneficiaries also sought a judgment declaring that the various account changes were null and void for the same reasons. 


Despite the substantial evidence of the decedent's lack of capacity, the Supreme Court denied summary judgment for both sides finding there were triable issues of fact.  However the Second Department concluded on this same evidence that the plaintiffs had made a prima facie showing of their entitlement to judgment as a matter of law. 


The Second Department reversed, and remitted the matter to the Supreme Court for entry of a judgment declaring the marriage null and void, as well as certain other transfers. 


Upon remittance, the Supreme Court directed entry of a judgment declaring, among other things, that the alleged surviving spouse "shall have no legal rights and can claim no legal interest as a spouse..."  The spouse subsequently appealed to the Second Department arguing that under EPTL 5-1.2, she is considered a surviving spouse even if the marriage is subsequently annulled or voided because of the literal language of the statute which looks at whether a decree declaring a marriage void was in effect at the time the spouse died.  The surviving spouse concluded that she was still entitled to an elective share of the estate, even though the marriage was subsequently deemed void.      


Upon review, the Second Department found that the literal terms of the statute should not be "rigidly applied if to do so 'would be to ordain the statute as an instrument for the protection of fraud.'"  Id. at 469.  The court cited to the well-known equitable principle that "no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong or to found any claim upon his own iniquity, or to acquire property by his own crime."  Id. at 469-470.[3]  Indeed, the wrongdoer is deemed to have forfeited the benefit that would flow from his or her wrongdoing. 


Looking to the case therein, the Second Department found that the foregoing facts provided ample support for an inference that the defendant procured the marriage through overreaching and undue influence.  The Court concluded that the Supreme Court properly directed the entry of a judgment declaring that the defendant had no legal rights and can claim no legal interest as a spouse, and that in light of the defendant's lack of any legal right or interest as a spouse of the deceased, she did not have standing to challenge the Supreme Court's directive concerning the distribution of the estate. 


Matter of Berk,[4] 20 Misc.3d 691 (Surr Ct Kings Co 2008) rev'd 71 AD3d 883 (2d Dept 2010), decided the same day as Campbell, had similar issues.  The petitioner had served as the elderly decedent's caretaker for the last ten years of his life and secretly married him one year before he died.  After his death, the alleged surviving spouse sought her 1/3 elective share of the estate.  The appellate court found that if the trier of fact found that the surviving spouse knowingly took unfair advantage of a person who was incapable of consenting to a marriage, for the purpose of obtaining pecuniary benefits as a surviving spouse, equity would intervene to prevent the petitioner from becoming unjustly enriched from her wrongdoing.    




The New York appellate court saw fit to utilize its equitable powers in the circumstances set forth above.  However, other New York courts have been reluctant to invoke their equitable powers in light of the unambiguous statutory language - although those courts have acknowledged the need for, and have recommended statutory amendments. 


These cases certainly represent an extreme set of facts.  However, the financial exploitation of the elderly can take many forms.  Often, elder abuse is hidden and the perpetrators may be family members.  We should all be alert to this important issue. 


2.  Estate of Kaminester, Deceased [5]




This is a decision of the Surrogate Court, New York County, in the matter in the Estate of Richard Kaminester Deceased.


In this case, a wife was estopped from exercising her spousal right of election following her husband's death, where, at a hearing in connection with the appointment of a guardian for her husband, counsel, having referred to the wife as the husband's girlfriend, then requested issuance of an Order determining that the husband lacked capacity to marry.  The court indicated its intent to issue such an order but the wife's counsel failed to disclose the existence of her one-month old marriage to the husband, thereby depriving the husband's children and the husband's guardian of the opportunity to obtain a revocation or annulment of marriage during his lifetime.


Notably, in New York, an annulment can take place after death.


The petitioner in this case invoked the doctrines of constructive fraud and equitable estoppel and asked the court to disqualify the surviving spouse and declared the deceased's marriage to the spouse void by reason of the deceased's incapacity to marry.


The complexity of the facts and the law in this case was evinced by the chronology of events which were numerous.


The proceedings commenced in the New York County Supreme Court but also reached the Probate Court as well as the New York County Supreme Court.


Notably, at the time of the deceased's death his marriage to his new spouse remained concealed. The court determined that the deceased lacked the capacity to marry or enter into financial transactions.  The court revoked and voided the deceased's marriage to his spouse, as well as the designation of the spouse as a beneficiary of a life insurance policy and the deed by which the spouse became a joint tenant of the deceased's real property.  Additionally, the court found the spouse in civil and criminal contempt.


The appellate division, first department, modified the decision on the law and facts vacating the findings of civil and criminal contempt and remanding the contempt issue for a new hearing. The appellate division expressly affirmed the lower courts maintaining jurisdiction over the matter and the finding that the deceased lacked capacity to enter into a marriage or to engage in the financial transactions at issue and revoked the marriage and the financial transactions.


A motion to the Court of Appeals for leave to appeal was dismissed to the extent it related to the order for a remanded hearing on contempt and was otherwise denied.  The Court of Appeals left intact the appellate division's affirmance.


This case characterizes a marriage involving a person "incapable of consenting to a marriage for want of understanding" as a voidable marriage. Such marriage becomes a nullity as of the date it is annulled by contrast, it permits the court that appoints a guardian for an incapacitated person to revoke any previously executed contract made by the incapacitated person prior to the appointment of a guardian if the court finds that the previously executed contract was made while the person was incapacitated. By judicial construction, "contract" within the context of the case and the statute has been held to include marriage.

[1] Campbell v. Thomas, 897 NYS2d 460 (2010) quoting Bailly, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 34A, Mental Hygiene Law 81.14 , 2010 Pocket Part, at 36.

[2] Campbell v. Thomas, 73 AD3d 103 (2010). 

[3] See also Riggs v. Palmer, 115 NY 506 (1889); Matter of Covert, 97 NY2d 68 (2001); In re Lonergan's Estate, 63 NYS2d 307 (1946); Barker v. Kallash, 63 NY2d 19 (1984); Carr v. Hoy, 2 NY2d 185 (1957).

[4] Berk Estate, 29 Misc. 3d 691, 864 N.Y.S. 2d 710, 2008 N.Y. Slip Op. 28247 (cited as 20 Misc.3d 691, 864 N.Y.S. 2d 710)

[5] Kaminester Estate, 17 Misc, 3d. 1117 (A), 851 N.Y.S. 2d 64, 2007 WL 3071187 (N.Y. Sup.) 2007 N.Y. Slip Op. 52043 (U)





1. 2014 Annual NICE Knowledge Exchange

May 21, 2014

Law and Aging - The Rasouli Case at the Supreme Court:  Now Who Gets to Decide End of Life? Panel Discussion

Kimberly Whaley, LLM,  Mark Handelman, LLB, MHSc(bioethics) and Marshall Swadron, LLB



2. World Congress on Adult Guardianship

2014 Arlington, Virginia USA

May 28, 2014 - May 30, 2014



3. B'Nai Brith Seminar

June 2, 2014

Rasouli Case and the issues arising from same: Review of the Court's Role Under HCCA

Speaker:  Kimberly Whaley



4. Osgoode Professional Development, Webinar

June 5, 2014
Estate Litigation Arising from  Later  Life Partnerships

Presenters: Kimberly Whaley, Heather Hogan 


5. STEP CANADA - 16th National Conference


June 16-17, 2014



6. Baycrest Foundation, Professional Advisory Group

June 17, 2014

Elder Care and/or Estate Planning

Speaker:  Kimberly Whaley and Dr. Gordon



7. CBA Webinar

June 18, 2014

Protecting Older Adults from Financial Abuse: Are We Doing Enough?

Speaker: Kimberly Whaley and Heather Hogan


8. 2014 CBA Elder Law Legal Conference

St. John's, Newfoundland

August 15-17, 2014 Until Death Do Us Part? Estate Claims Arising Out of Re-Partnerships:

A Cross-Provincial Perspective

Speakers: Kimberly Whaley and Heather Hogan



9. STEP Canada - 2014 Budget - Estate Planning and Charitable Gifting

September 10, 2014

Co-Chairs:  Gillian Musk and Elena Hoffstein

Speakers: Paul F. Keul CPA, CA, TEP ;Joe Marino, LLB, TEP; BMO Harris Private Banking; M. Elena Hoffstein,  Fasken Martineau 


10. Osgoode Professional Development, Webinar

September 11, 2014   

Fiduciary Accounts: Preparing, Passing, and Reviewing

Presenters: Saara Chetner, Heather Hogan, Birute Lyons


11. Practice Gems: The Administration of Estates 2014

September 23, 2014

Chair: Kimberly Whaley

Speakers: Clare Burns;  Archie Rabinowitz and David Lobl;   Jordan Atin;  Laura Tyrrell; Gwen Benjamin; Lee  Ferrier , Hershel Gross, Tara Stead, and Barbara Krever


12. STEP Canada - Family Business Transitions:  A Different Focus

October 15, 2014

Chair: Ted Polci

Speaker: Ian R. Campbell, FCPA FCA FCBV, Business Valuation Expert

13. STEP Winnipeg

October 23, 2014

Speaker: Kimberly Whaley , Predatory Marriages


14. LSUC Estate and Trust Summit  2014

November 3, 2014

Speaker: Kimberly Whaley


15. STEP  Canada - Estate Trustees: Do you really want the job?

November 12, 2014

Speakers: Archie Rabinowitz,  Dentons Canada LLP;  Barry Corbin, Corbin Estates Law  


16. STEP, Global Congress, Miami

Mandarin Oriental Miami

November 6-7, 2014

Kimberly Whaley, Attendee



17. STEP Canada - December Seasonal Event

Seasonal Reception, First Canadian Place, Music by Oui B. Jamon, sponsored by Sick Kids Foundation, Honourary Guest Speaker, Malcolm Berry

RSVP event


18. STEP Canada

January 14, 2015

Speakers: Kimberly Whaley, Whaley Estate Litigation and Craig Vander Zee, Torkin Manes LLP; Kenneth  Goodman, The Public Guardian and Trustee; Steve Adams, Comptroller and Accountant of the Superior Court of Justice; OCL (TBC)


19. STEP Canada

February 11, 2015

Financial Abuse: Detection and Intervention

Chair: Kimberly Whaley 

Speakers:   Doug Melville, Ombudsman and CEO for Banking Services and Investments (OBSI); Fiona Crean, Ombudsman for the City of Toronto; Laura Tamblyn Watts LL.B., Elder Concepts


20. STEP Canada         

April 15, 2015

The Transfer of Wealth including the Family Cottage

Co-Chairs: Rachel Blumenfeld and Elaine Blades

Speakers: Gwen Benjamin, Wilson Vukelich LLP (TBC); Justin de Vries, de Vries Litigation


21. STEP Canada

May 13, 2015

Elder Care: A Practical Approach

Co-Chairs: Chris Clarke and Greg McNally

Speakers: Mike Love, Account Executive , Legacy Private Trust; Dr. R. Rupert, Rupert Case Management; Audrey  Miller, Managing Director ,Elder Caring Inc.,  and  Audrey Miller & Associates ;Trevor Parry M.A., LL.B, LL.M (Tax), TEP, Executive VP and National Sales Director at GBL Actuaries and Consultants

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This newsletter is intended for the purposes of providing information only and is to be used only for the purposes of guidance.  This newsletter is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.


Newsletter Contents
I. WEL News
II. Law Review
III. Upcoming Programs
IV. Newsletter Archive

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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


Francesca Latino

Legal Assistant

(416) 355-3257






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Whaley Estate Litigation