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Lorintt v. Boda, provides litigators and solicitors with guidance on rebutting the presumptions of resulting trust and undue influence

 

Contribution by: Heather Hogan

 

On March 5, 2015, the Supreme Court of Canada dismissed with costs the application for leave to appeal the decision of the British Columbia Court of Appeal in Lorintt v. Boda.[1] In Lorintt, the BCCA dismissed the appeal of the chambers judge holding that the presumption of resulting trust had been rebutted, and that the relationship between the donor father, and the donee son, did not give rise to the potential of undue influence.

 

Estate litigators and elder law practitioners may consider relying on Lorintt for guidance on rebutting the presumptions of undue influence and resulting trust as they apply to transfers of real property. Solicitors may also find it useful to consider the steps taken by the drafting solicitor in this case, as it was the solicitor's evidence and conduct that, in large part, defeated the executor's claims for resulting trust and undue influence.

 

The Transfer

 

The father was 85 years old when he transferred the property with the assistance of his solicitor, Mr. Porritt, in February of 2000. Mr. Porritt's office was contacted by the son, and Mr. Porritt met with the father and the son together. The father had intended to transfer the property outright to his son, but when presented with other options, he elected to transfer the property to joint tenancy, instead.

 

Mr. Porritt observed that English was not the father's first language. However, although Mr. Porritt routinely used the services of translators with his ESL clients, he did not do so in this instance because he was certain the father understood the advice given. 

 

The son deposed that he had no contact with his father after that meeting because they had argued shortly after the transfer.

 

About 10 days after the property was transferred, the father returned to Mr. Porritt's office and asked Mr. Porritt to transfer the property back to the father, solely. Mr. Porritt told the father what steps were required, and sent the father a copy of the necessary paperwork to be completed by the father and the son. The completed paperwork never materialized.

 

The Father's Capacity, and the Executor's Involvement

 

About four years later, the son was contacted by the Office of the Public Guardian and Trustee (OPGT). The father had dementia, had fallen, and the PGT was the committee of the father's finances. At the father's request, the son brought a petition to become the father's committee, and was so appointed. They subsequently argued. At around that time the 'would be' executor took the father to a new lawyer, Mr. Menkes, for the purposes of cancelling the committeeship, to make a Will, and to sever the joint tenancy.

 

The father was assessed by Dr. Sloan who was of the opinion that father had testamentary capacity, but Dr. Sloan was unable to determine whether the father could manage his own financial affairs.

 

In August of 2006 the father made a Will (his first) which favoured the executor and left nothing to the son. That same year, the father applied to appoint the executor as his committee, but the court chose to appoint the PGT instead.

 

The father died in 2008.

 

The Executor's Claims

 

The son searched for a Will, did not find one, and obtained letters of administration. The Executor then commenced proceedings to prove the August 2006 Will in solemn form and strike the son's letters of administration. In that regard, the Executor was successful.

 

The Executor also brought the claims concerning the property.

 

The Affidavit Evidence

 

The decision of the chambers judge is not reported, but the BCCA provides this summary of the evidence before the chambers judge:

The son relied on two affidavits he had sworn and on an affidavit of Mr. Porritt. The executor relied on two affidavits he swore, an affidavit of Mr. Michael S. Menkes, an affidavit of Ms. Esther Vitalis and an affidavit of Dr. John Sloan. None of the deponents were subject to cross-examination.

The executor attempted to introduce the father's evidence concerning the transaction. The executor's first affidavit attached as exhibits two affidavits sworn by the father in June and August 2006 in support of a petition the father had brought to remove his son as his committee. Mr. Menkes is a solicitor who had acted for the father in the committee action. His affidavit attached notes of three meetings he had with the father in 2006, which culminated in the father's execution of a will on August 8, 2006. Ms. Vitalis is a certified translator who met with the father on several occasions commencing in April 2006. She met with him in order to assist him in regard to litigation she said he wished to commence against his son. Her affidavit attached a summary of facts the father signed on August 11, 2006. Dr. Sloan's affidavit concerned an examination he conducted of the father in June 2006, to determine his testamentary capacity.
 

For reasons which will be discussed, the chambers judge based his decision largely on the affidavit of Mr. Porritt, which affidavit he noted was generally supported by the affidavits of the son. He gave no weight to the various affidavits filed on behalf of the executor.

Resulting Trust

 

The Chambers judge correctly acknowledged that the resulting trust issue turned on the father's intentions at the time of the transfer in 2000. In this regard, he favoured the evidence of Mr. Porritt, and found that the father's comments between 2004 and 2008, while the father's capacity was at issue, were of no evidentiary value. [2]

 

On appeal, the executor submitted that the father's efforts to reverse the transfer were improperly discounted by the chambers judge, and that consideration should have been given to the statements made by the father in 2006, at a time when the father was medically determined to have testamentary capacity.

 

In the paragraphs that follow, the Court of Appeal confirm that evidence of intention must be contemporaneous with the transaction in question, and that oral statements made by the deceased at various points after the transfer were of no evidentiary value:

The traditional rule was that evidence adduced to show the intention of the transferor at the time of the transfer "ought to be contemporaneous, or nearly so": Clemens v. Clemens Estate, 1956 CanLII 3 (SCC), [1956] S.C.R. 286 at p. 294, citing Jeans v. Cooke (1857), 24 Beav. 513 at 521. In Pecore, after reviewing the authorities, the Court concluded, at para. 59, that evidence of intention that arises subsequent to a transfer should not automatically be excluded, but that such evidence must be relevant to the intention of the transferor at the time of the transfer. The Court cautioned that judges must assess the reliability of such evidence and determine what weight it should be given, guarding against evidence that is self-serving or that tends to reflect a change of intention.

A major foundation of the appeal is that the chambers judge erred in giving no weight to the affidavits filed on behalf of the executor pursuant to which he attempted to put before the Court evidence of the father's intent. In regards to that evidence, the chambers judge noted that the father's inconsistent comments, combined with medical practitioners' inconsistent diagnoses, led him to conclude that this evidence was at best equivocal and ambiguous. He found it was simply not clear whether the evidence reflected what the father actually believed was his intention some years earlier, or whether it was the result of some elemental incompetence or dementia.

I agree with the chambers judge's analysis of that evidence. The evidence consists of various oral statements made by the father in 2006. While Dr. Sloan found that the father, at the time of his interview on June 19, 2006, had testamentary capacity, he noted that the father's preoccupation with alleged wrongdoing by his son including allegations that his son had stolen things from him, used various legal methods to take away his rightful property, and sold or destroyed things with great sentimental value. He found the father's insight and judgment appear to be reduced. He indicated the father's test results were consistent with mild dementia. When Mr. Menkes met with the father shortly after the father had seen Dr. Sloan, the father did not initially recall Dr. Sloan.

The father's affidavits of June 23, 2006, and August 30, 2006, are not reliable. For example, in his second affidavit he says, "If Mr. Porritt had attempted to give me legal advice concerning the documents with the transfer, I would not have been able to understand him. He did not speak Hungarian, and made no attempt to speak to me."

Mr. Porritt's affidavit establishes otherwise. He says he spoke to the father at length. Further, he had two subsequent conversations with the father in English after the transfer documents were signed. The father's affidavit makes no mention of those conversations.

In the statement the father gave to Ms. Vitalis he suggests the transfer of the Property took place in the spring of 2004 after he had broken his neck. The statement indicates the son had been trying to convince him to be added as a joint tenant to the Property since 2000. It is clear from the affidavit of Mr. Porritt that it was Mr. Porritt who raised the question of joint tenancy, not the son.

Given all of these circumstances, the chambers judge did not err in giving no weight to the evidence led on behalf of the executor. The fact the father may have possessed testamentary capacity in 2006 does not make his 2006 affidavits concerning events that took place in 2000 reliable.
 

The decision to give no weight to this evidence is a matter of some import. It undermines the executor's submission that the son was the driving force behind the transfer. It means the evidence of the son and Mr. Porritt is uncontradicted. As previously noted, their evidence was not the subject of cross-examination.[3]
 

Undue Influence

 

With respect to the executor's submission that the transfer was invalid because it arose from undue influence, the chambers judge acknowledged that there are certain relationships which, by their nature, have the potential for a dominating influence to exist.[4] He confirmed that in such circumstances, if there has been a transfer made without consideration, it is presumed to be made as the result of undue influence, which presumption is rebuttable.[5]

 

The chambers judge found, on the basis of Mr. Porritt's evidence, that the father transferred the property while acting of his own free will. In particular, the father had attended Mr. Porritt's office to transfer the property outright to the son but, when presented with Mr. Porritt's suggested alternatives, chose the joint tenancy instead. Finally, the chambers judge found that the evidence did not lead him to conclude the relationship between father and son was one that gave rise to the presumption of undue influence, and if he was wrong in that regard, the chambers judge found that the presumption as rebutted by the above evidence.

On appeal, the executor submitted that at the time of the transfer the father was elderly, in ill health and apprehensive of his own death. He emphasized the evidence found in the father's 2006 affidavits and statements that it was the son who suggested that his father transfer title in the first place; it was the son who located the lawyer to perform the transaction; it was the son who provided instructions to that lawyer and his conveyancing secretary; and it was the son who interpreted portions of Mr. Porritt's advice to the Hungarian-speaking father.

The Court of Appeal confirmed the rebuttable presumption of undue influence as set out in Geffen v. Goodman, and found that:

 

...there is no basis to interfere with the chambers judge's findings that the relationship between the parties was not one which gave rise to the potential domination of one party by another. At the time of the transfer the father and son did not live together. While their relationship appears to have been amicable, they only saw one another periodically, in large part because of the distances between their respective homes. There is no evidence the father, at the time of the transfer, was dependent on the son. He lived independently and continued to do so for the next four years.

The alternative conclusion of the chambers judge was that the father's decision to transfer the Property to the son was not as a result of any undue influence is also fully supported in the evidence. Mr. Porritt provided the father with a menu of options and it was the father who decided to transfer the property into joint tenancy. When the transfer took place there was no evidence of dementia or mental incompetence. Furthermore, Mr. Porritt's evidence was that the father understood the transaction and was acting as a result of his own free and informed thought. I would not accede to this ground of appeal. [6]

 

Commentary

 

The facts in this case will be familiar to anyone practicing estate litigation or elder law, where the presumptions of resulting trust and undue influence are at play in most cases. Lorintt demonstrates the importance of timing, which determined both the resulting trust and the undue influence holdings, and the weight apportioned to the evidence of solicitors.

 

With respect to resulting trust claims, or indeed, any number of claims brought after death, statements made by a deceased during his or her lifetime are often relied upon years later as evidence of the deceased's intentions.

 

The Court of Appeal's reasons in Lorintt are a welcome reminder that the evidentiary weight apportioned to such statements diminishes with each day that separates the statement from the transaction in question. Even if the father's capacity had not been at issue at the time the statements were made, the court would have likely preferred that evidence of the solicitor who implemented the transfer due to proximity of that evidence to the transaction in question.

 

With respect to undue influence, we are reminded it takes more than the mere existence of a familial relationship, or the advanced age and ill health of the donor, to establish undue influence. Again, timing is important: the father was living independently at the time of the transfer and did not appear to be dependent on the son for financial assistance or care needs. All of the compelling evidence regarding the father's frailty, vulnerability and capacity arose in the years that followed the transfer, and was therefore not useful in establishing undue influence.

 

Finally, the evidence of solicitors in resulting trust and undue influence cases cannot be underestimated. Indeed, cases have been won on undue influence where, as in Lorintt, the solicitor was contacted by the adult child donee, met with the elderly donor and donee at the same time, and eschewed the services of a translator.[7] But in the absence of contradictory direct evidence from the father, who was deceased at the time of the hearing, the evidence of the solicitor regarding the father's intentions and free will was sufficient to rebut both the presumption of resulting trust and the presumption of undue influence. 

 

Of course, the outcome may have been different had the father simply agreed with the transaction initially suggested by the son. Much of the chambers judge's findings regarding the father's donative intent and the rebutting of the presumption of undue influence turned on the fact that the father was presented with a number of different options, appeared to understand those options, and chose one that differed from the son's initial instructions.  

 

For obvious reasons, then, it is incumbent on solicitors and litigators to be familiar with the red flags of undue influence, and for solicitors to take steps to confirm that their instructing client understands the transaction when there are indicators of undue influence present.

 

Indicators of Undue Influence
 

The Court in the 2013 decision of Gironda v Gironda[8] provided a (non-exhaustive) list of indicators of undue influence:

• The testator is dependent on the beneficiary in fulfilling his or her emotional or physical needs;
• The testator is socially isolated;
• The testator has experienced recent family conflict;
• The testator has experienced recent bereavement;
• The testator has made a new Will that is inconsistent with his or her prior Wills; and
• The testator has made testamentary changes similar to changes made to other documents such as power of attorney documents. [9] 

For more information regarding indicators of undue influence, check out the link in our website:

 

Download our checklist 

 

 

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"Rotten food is to food poisoning as rotten evidence is to...?"

 

Contribution by: Lionel Tupman

 

On January 19, 2015, Justice McKelvey of the Superior Court of Justice in Newmarket released the Court's decision in relation to a motion brought by a successful Applicant to reopen the trial of the Application after the Court rendered its decision, but before judgment was entered.  The successful Applicant sought, inter alia, to adduce fresh evidence which was available at the time of trial.

 

Facts

 

Ms. Helen Kilitzoglou (the Applicant) commenced an Application in 2008 seeking financial remedies under the Succession Law Reform Act in relation to her common law relationship with Mr. Curé, who died in April 2007.  The Applicant sought several grounds of relief, including support, an order transferring Mr. Curé's interest in a property in Vaughan at which the couple had lived, or in the alternative, an order for the partition and sale of the property, an order that the proceeds of a Transamerica life insurance policy taken out by Mr. Curé before his death be paid to the Applicant, an order to determine the validity of the deceased's last Will, an order removing the deceased's daughters, Tanya and Shannon Curé as Estate Trustees of Mr. Curé's Estate, a declaration that the cohabitation agreement was void, as well as a number of other claims. [10]

 

Subsequent to the release of the written Reasons for Judgment, but before the parties had taken out the Judgment, the Applicant brought a motion seeking an order to reopen the evidence at trial to permit further evidence on repairs needed to the home in Vaughan, which she asserted should be paid by the Estate. She also sought to vary the Reasons for Judgment so as to allow expenses as set forth in her affidavits filed in support of the motion to be included in the judgment.[11]

 

The Court declined to permit the reopening of the trial of the Application to adduce fresh evidence.  In dismissing this aspect of the motion, Justice McKelvey stated the following:
 

During her evidence at trial, Ms. Kilitzoglou spent a considerable amount of time describing the state of her home and the defects which required repair. Photos of the home highlighting many of the defects which required repair were introduced as exhibits at trial. In addition to providing receipts for expenses which had been paid by Ms. Kilitzoglou, she also introduced estimates for work on the home which had not yet been performed but which required repair. In particular, these expenses included an estimate for window replacement, dated January 22, 2010, in the amount of $27,218 and an estimate from Avenue Road Roofing, dated November 24, 2009, for roof replacement where the cost of work was estimated at $32,401.14. The Estate obtained another roofing estimate, dated December 2009, which estimated the total cost for a roof replacement at $14,545.75.

 

[14] Following judgment, Ms. Kilitzoglou obtained updated estimates for the cost of these repairs.           

[...]
 

[15] While my Reasons for Judgment were released on February 14, 2014, the formal judgment has not been taken out by the parties. There is, therefore, some discretion to allow further evidence to be adduced. With respect to the applicable legal principles governing the admission of new evidence, Ms. Kilitzoglou relies upon the decision in Matzelle Estate v. Father Bernard Prince Society of the Precious Blood, [1996] O.J. No.2605. In that decision, the court considers the principles to be applied if a party moves to reopen the evidence at trial after reasons are released, but before judgment is issued. The court in that case refers to an earlier decision in Qit Fer et Titane Inc. v. Upper Lakes Shipping Company Ltd., (1991), 3 O.R. (3d) 165 (Gen. Div.) where the court stated certain principles as follows:

 

(a)  Until judgment has been entered, a trial judge has discretion to reopen a trial and hear fresh evidence;

(b) In exercising such discretion, the judge should be guided by the twofold test: that the evidence would probably have changed the result at trial and it could not have been discovered by reasonable diligence;

(c) Where justice demands it and particularly where fraud is involved or the court may have been deliberately misled, a judge is justified in departing from the diligence requirement in order to prevent a miscarriage of justice;

(d) The power should be exercised sparingly. The court should discourage unwarranted attempts to bring forward evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant, after discovering the effect of a judgment, to re-establish a broken down case with the aid of further proof;

(e) Once a litigant has obtained judgment, he is entitled not to be deprived of it without very solid grounds.

 

[16]  In the Matzelle Estate case, the court also states that a trial judge does have the discretion to reopen a hearing to allow new evidence, whether or not the evidence could have been discovered by the exercise of reasonable diligence prior to trial, but that this discretion should only be exercised in the clearest of cases and only to prevent a miscarriage of justice.

 

Justice McKelvey noted, however, that there is good reason to doubt whether the court's decision in Matzelle Estate remains applicable today.[12] In 671122 Ontario Ltd. V. Sagaz Industries Canada Inc.,[13] the Supreme Court considered this issue, citing with approval the decision of Lord Denning in Ladd v. Marshall,[14] in which Lord Denning states:
 

It is very rare that application is made to this court for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

 

Justice McKelvey concludes that "[t]he Supreme Court therefore appears to support the position that before permitting fresh evidence to be introduced, the moving party must show that the evidence could not have been obtained with reasonable diligence for use at the trial, as well as demonstrating that the new evidence would have an important influence on the result of the case." [15]
 
Ultimately, Justice McKelvey found that the Applicant chose to rely, at trial, on estimates on the cost of the repair of the roof and for the replacement of windows which were several years old and which were not updated before trial, but which could, with reasonable diligence, have been adduced at trial.  Moreover, the Applicant was aware of the deficiencies in the house property which would require repair and opted not to address these issues during the trial of the matter.[16]

 

Significantly, Justice McKelvey also noted that to open up the trial again and to permit the Applicant to adduce new evidence would correspondingly permit the Respondent to adduce further evidence, thus lengthening an already long and complicated trial.

 

Commentary

 

No doubt the efficacy of our legal system requires finality in the determination of matters.  Litigants cannot exercise carte blanche to adduce further evidence after a court has rendered its decision on a matter if litigation is to function efficiently and effectively.  Similar to the requirement in summary judgment motions in Ontario, that litigants "lead trump or risk losing", it seems a fair and appropriate principle that at the trial of a matter on its merits, a Court should be able to render its decision with finality on the totality of the evidence before it, and moreover, that the litigants' failure to adduce evidence at trial relevant to the relief sought by the litigants should be the litigants' own risk, and to their own detriment.  Without this principle, trials might never end, as litigants on each side may, after learning of the judge's decision, engage in an "arms race" to adduce further evidence, seeking to alter the judge's decision and "trump" their opponent's evidence.

 

However, this case raises the question of the obligation on litigants to file up-to-date evidence on an ongoing basis to ensure the relief they seek in litigation is consistent with the realities of inflation and other economic changes which occur over time.  Given the duration of most litigation matters in the present day, it is clear that a litigation matter may "outlive" the relevance and/or accuracy of financial evidence filed in the course of the litigation as evidence.  In this case, the estimates which were the subject of the motion were obtained between 2009 and 2010.  Following judgment, the Applicant obtained updated estimates, and though we are not so informed in the case, presumably, the Applicant was shocked to learn that 5-6 years later, the estimates were no longer accurate. 

 

Would it not, however, present a practical problem for litigants if the documentary evidence relied on in litigation to prove financial aspects of a case were constantly subject to updates and/or changes, thus necessitating responding documentary evidence and discovery obligations?  Perhaps there is no answer to this apparent problem.  What is clear, though, is that litigants may not receive what they expect to receive in the context of litigation relating to financial matters in today's dynamic and volatile economy.  What is accurate evidence one day may be inaccurate the next. 

 

The lasting take-away lesson from this case is as follows:  Litigants, check the expiry date on your evidence.  If trial concludes and your evidence has "turned", you won't be allowed to introduce something fresh if you could have raised it at trial, but didn't.  Much like the effect of rotten food on ones' digestive system, the effect of "turned" evidence for litigants may be unpleasant, unexpected, and difficult to stomach. 

Divisional Court Highlights some Indicators of Undue Influence in Tate v. Gueguegirre, 2015 ONSC 844 (CanLII)
 

http://canlii.ca/t/gg86r
  

A recent and short case of the Ontario Divisional Court of the Superior Court of Justice provides yet further guidance on what constitutes potential evidence or indicators of undue influence in the context of a drafting of a Will.
  

In Tate v. Gueguegirre a Will was challenged on the basis of lack of testamentary capacity and that the Will was a product of undue influence.[17]  The trial judge found that there were "suspicious circumstances" but that "there was no undue influence" and that the "will was made with testamentary capacity". [18]
 

On appeal, the Divisional Court found that the trial judge correctly analyzed whether or not the testator had testamentary capacity:
  

The trial judge summarized the evidence of suspicious circumstances and concluded that these circumstances rebutted the presumption of capacity, leaving it to the respondent to prove capacity on a balance of probabilities. The trial judge then analyzed the evidence of capacity and concluded that the respondent "has on a civil standard proven on a balance of probability that the testator had testamentary capacity at the time of the execution of the final Will".  [19]

 

However, the trial judge failed to analyze the evidence or make factual findings on the issue of undue influence. The Divisional Court concluded that there was no analysis to support the trial judge's conclusion that there was no undue influence. Of note, the Divisional Court observed that:
 

[t]here was significant evidence suggesting that the Will was a product of undue influence including:
 

(i) the increasing isolation of the testator;

(ii) the testator's dependence on the respondent;

(iii) the substantial pre-death transfers of wealth from the testator to the respondent;

(iv) the testator's expressed yet apparently unfounded concerns that he was running out of money;

(iv) the testator's failure to provide a reason or explanation for leaving his entire estate to the respondent and excluding his daughters from it;

(vi) the material changes in circumstances between the time of the first Will from the time of the final Will that would undermine the testator's earlier reasons for favouring his son in his Will;

(vii) the move by the testator to Bobcaygeon, increasing his isolation and the control over him by the respondent;

(viii) the circumstances of the making of the Will including:

(a)   using a lawyer previously unknown to the testator and chosen by the respondent;

(b) the respondent conveying instructions to the lawyer concerning the contents of the Will;

(c) the respondent apparently receiving a draft of the Will before it was executed by the testator and then the respondent taking the testator to the lawyer to sign the Will;

(ix) the testator's documented statements that he was afraid of the respondent. [20]

The Divisional Court noted that "undue influence was central issue in the case.  It does not stand or fall with the issue of testamentary capacity.  In the absence of factual findings on the evidence relevant to this issue, we cannot decide the issue ourselves and must remit it back for trial in front of a different trial judge." [21]
 

Conclusion

The factors or indicators of potential undue influence observed by the Divisional Court echo and may well expand upon the (non-exhaustive) list found by the Superior Court of Justice in the 2013 decision of Gironda v Gironda:

• The testator is dependent on the beneficiary in fulfilling his or her emotional or physical needs;
• The testator is socially isolated;
• The testator has experienced recent family conflict;
• The testator has experienced recent bereavement;
• The testator has made a new Will that is inconsistent with his or her prior Wills; and
• The testator has made testamentary changes similar to changes made to other documents such as power of attorney documents.[22] 

Both the list in Gironda and the list in Tate can act as helpful guidelines and reminders for practitioners to be cognizant of the "red flags" when drafting testamentary documents for clients who could be vulnerable to undue influence.