Whaley Estate Litigation Newsletter Vol.5 No. 1 April 2015



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


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

  • Will, Estate, Trust Disputes
  • Advising Fiduciaries
  • Dependant Support Claims
  • Passing of Estate, Trustee,  Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes          
  • Consent and Capacity Board
  • End-of-Life & Treatment Decisions
  • Elder Law
  • Elder Financial Abuse
  • Solicitor's Negligence
  • Agency Services
  • Representation of Persons Under Disability
  • Probate Applications
  • Mediation
  • Opinions*

* Albert Oosterhoff, Professor Emeritus Western University, Counsel at WHALEY ESTATE LITIGATION, consults on matters within his areas of expertise, providing opinions concerning Wills, Estates, Trusts and related Property matters. Albert provides legal opinion and as such litigation support services to lawyers, law firms and their clients.


Please Enjoy, 


Kimberly A. Whaley
Whaley Estate Litigation





Kimberly presented her article entitled: "Parent/Adult Child and Sibling Struggles" at the Osgoode Certificate in Elder Law program on April 16, 2015. 

Link to Kim's article




WEL congratulates our colleague and friend, the Honorable Madam Justice Susan Woodley who was sworn in as a Judge of The Ontario Superior Court of Justice in Oshawa, on April 7, 2015.




Scot Dalton, CEO of ERAssure, came to speak to WEL on updates and news concerning ERAssure's executor Insurance. Have a look at some of the highlights:

Link to materials



On Monday, March 23, 2015, Lionel Tupman spoke to graduate students in Laura Tamblyn Watts class in the University of Toronto's Masters of Social Work program regarding the legal and practical significance of the Supreme Court of Canada's decision in Carter v. Canada (Attorney General). Students asked a range of questions regarding end of life decisions and the impact this decision will have on vulnerable persons in Canada. Students were also particularly interested in the constitutional issues related to provincial versus federal legislative authority, and the possibility of varying standards for substitute decision making which could be enacted in different provinces as a result of the vacuum created by striking down the blanket prohibition on assisted suicide in the Criminal Code of Canada.

And on March 30, 2015, Kimberly Whaley and Heather Hogan were also guests of Ms. Watts at the U of T MSW program. Kim and Heather spoke about financial elder abuse and predatory marriage, and were humbled by the observations and questions of the graduate students, many of which echo the questions raised in the leading decisions on issues of predatory marriage and breach of fiduciary duty. Smart cookies, indeed! We wish them the very best as they graduate from the MSW program this Spring.




(i) Keep Your Estate Dispute Civil, in Court, and Off Facebook

Nova Scotia (Public Safety) v. Lee, 2015 NSSC 71


Often in estates disputes, emotions run high and sometimes comments are said by or to siblings, or other relatives, that are spiteful, insensitive, and unpleasant. Parties can become consumed by the dispute and the litigation can spill into all aspects of their personal and social lives. In Nova Scotia (Public Safety) v. Lee, 2015 NSSC 71, the Nova Scotia Supreme Court found that a man crossed the line when he emailed and posted online abusive comments and threats against his sister in a heated dispute over their mother's will. His actions amounted to "cyberbullying" and a "Cyberbullying Protection Order" was ordered against him pursuant to Nova Scotia's new Cyber-Safety Act. [1]

The Dispute and Allegations

Mr. Lee's mother suffered from cancer, and his sister, Ms. Murray, who is a nurse, moved in with their mother during her illness. The mother passed away in June 2014. Although the mother had four children, the sister was the sole beneficiary under the mother's will. After her mother's death Ms. Murray moved into her mother's house with her husband and children.

Shortly thereafter, Mr. Lee contacted his sister by email asking for a copy of the will. The sister sent a copy by email and asked her brother to call her to discuss whether he or his daughters wanted anything from the house before she started organizing and disposing of items. Mr. Lee responded that he would prefer to communicate by email. From here, things dramatically went downhill.  Mr. Lee started sending text messages and emails to his sister accusing her of fraud, breach of trust, and elder abuse. As an example, one email stated: "[y]ou are dead to me get your lying manipulative abusive [a--] out of that [f-g] house or I will send the RCMP".[2] The threats soon became public when Mr. Lee took his anger and allegations to Facebook, writing:

Does anybody out there in Facebook land think it is ok for the caregiver of a 67 year old lady dying of brain tumours & loaded up with narcotics, take the 67 year old lady into the lawyers office days (literally days) before the lady dies of those same brain tumours and have the lady sign everything she owns (and some stuff she didn't own) over to the caregiver???? Because that is exactly what my sister did And [sic], any of you cowards in my family that read this and the go "tsk tsk" behind my back and leave my Mother dead and undefended should be as ashamed of yourselves as Veronica [his sister] should be.[3]

He also threatened over email to tell his sister's employer that she abused their mother and stole from her. He made numerous threats that he had called the RCMP and that there would be potential charges laid against her.

Ms. Murray testified that her brother's behaviour upset her to the point that she could not eat or sleep and that she feared for her safety and that of her family.  She also stated that she "knew it had become fodder for public opinion when [she] walked into [her] chiropractor in July and was greeted with 'so you're all over Facebook'". [4]

The Legislation

Eventually, Ms. Murray complained to the CyberSCAN Unit of Nova Scotia, which is Canada's first cyberbullying investigative unit. The CyberSCAN unit was established after the Nova Scotia legislature passed the Cyber-Safety Act, S.N.S. 2013 c.2 (the "CSA") in 2013, the first legislation of its kind in Canada. The purpose of the CSA is "to provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying". The CSA also made certain amendments to Nova Scotia's Safer Communities and Neighbourhoods Act, S.N.S. 2006, c.6 (the "SCNA").

Although it was explained during the legislative debate regarding the CSA that the emphasis of the legislation was on the dangers of cyberbullying on young people, the court in this case noted that "cyberbullying is not specific to any age group, nor is the legislation so limited. People of all ages are grappling with the challenges posed by social media".[5] Under the CSA, cyber-bullying is described as:

. . .any electronic communication through the use of technology including without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably [to] be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person's health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way. . .[6]

There are two avenues available to cyberbullying victims under the legislation in Nova Scotia: 1) a person can apply to a justice of the peace for a protection order;[7] or 2) a person can make a complaint to the Director of Public Safety, who possesses a number of investigative powers, and the Director can apply to the court for a Cyberbullying Prevention Order. A court can provide such an order if it determines on a balance of probabilities that the respondent engaged in cyberbullying of the subject. A cyberbullying prevention order may include any of the following provisions:

(a)  a provision prohibiting the respondent from engaging in cyberbullying; 

(b) a provision restricting or prohibiting the respondent from, directly or indirectly, communicating with or contacting the subject; 

(c) a provision restricting or prohibiting the respondent from, directly or indirectly, communicating about the subject; 

(d) a provision restricting or prohibiting the respondent from using a specified or any means of electronic communication; 

(e) an order confiscating, for a specified period or permanently, any electronic device capable of connecting to an Internet Protocol address associated with the respondent or used by the respondent for cyberbullying; 

(f) an order requiring the respondent to discontinue receiving service from an Internet service provider; 

(g) any other provision that the Court considers necessary or advisable for the protection of the subject.[8]

In this case, Ms. Murray chose the second option and filed a complaint with the Director. An investigator contacted Mr. Lee and advised him that his actions amounted to cyberbullying and she requested that he stop what he was doing and to meet with her to discuss the matter. Mr. Lee corresponded with the investigator but declined to meet with her and eventually resorted to more name calling on Facebook, this time including the investigator as a target. The Director sought a Cyberbullying Prevention Order against Mr. Lee.

The court was satisfied on a balance of probabilities that Mr. Lee's actions amounted to cyberbullying under the legislation:

All of the modes of communication at issue, including social networks, text messaging, and electronic mail, are enumerated in this provision. Mr. Lee repeatedly sent messages and made posts that he either intended or reasonably ought to have expected to cause fear, intimidation, humiliation, distress or other damage or harm to Ms. Murray's health, emotional well-being, self-esteem and reputation. This is clear from the content of the messages, the harm described by Ms. Murray, and the timing of the campaign, being immediately after their mother's death.[9]

The court ordered a "Cyberbullying Prevention Order" that provided that Mr. Lee not engage in cyberbullying, communicate directly or indirectly with or contact his sister; or communicate, directly or indirectly about his sister; and required him to delete all cyberbullying electronic communication with or about his sister. Mr. Lee was also ordered to pay $750.00 in costs. The court noted:

Regardless of the merits of Mr. Lee's concerns pertaining to the validity of the will, they do not justify his actions. Individuals in this province have several options available to them when they are unsatisfied with or have concerns over the validity of a will, including potential remedies through the Testators' Family Maintenance Act, R.S.N.S. 1989, c.465, the Wills Act, R.S.N.S. 1989, c.505 or the Probate Act, S.N.S. 2001 c.31.[10]

New Recourse for Victims of Cyber-Bullying

Often courtroom battles spill out into real life and now on to the pages of social media. This case shows that online bullying and abusive behaviour will not be tolerated in estate litigation or other disputes, at least in Nova Scotia under their legislation. While there are no other similar provincial acts in Canada,[11] the controversial  Protecting Canadians from Online Crime Act, S.C. 2014, C-31 received Royal Assent on December 9, 2014 and came into force on March 10, 2015. This federal legislation made amendments to the Criminal Code concerning cyber-bullying, among other things. As this Act is very new it is unknown how it will be applied. In any event, no matter how difficult it may be, it is important to keep estates disputes as civil as possible and keep the dispute in court (or mediation) and off the pages of social media.



(ii) Florida Appellate Court Upholds Finding of Undue Influence: Blinn v. Carlman


In a recent case arising out of Florida,[12an appellate court upheld a trial judge's decision to set aside a will based on undue influence. The facts of the case also have the earmarks of a "predatory marriage" where an unscrupulous individual preys upon an older adult with diminished reasoning ability for their own financial profit.



Richard was a wealthy 82 year old business man when he married his fourth wife, Faye, in 2006. Faye was 87 when they married and it was her third marriage, having been widowed twice before. Until his marriage to Faye, Richard had had a close relationship with his two children from his first marriage and worked side-by-side with his daughter at his business. However, all of this changed when Richard met Faye. In fact, none of Richard's family or friends were invited to his wedding to Faye, and Richard did not tell his children about the wedding until after the fact. After the wedding, Richard cut off all communication with his daughter and granddaughter, and whenever his son would call, Faye would hang up on him. During this period, Faye was telling Richard that his daughter was stealing from him. After the wedding, Faye took control of all of their finances. She paid the bills and wrote the cheques.


Richard's mental health had already begun to deteriorate when he met and married Faye. As early as 2005 Richard experience cognitive difficulties and from 2006 onward suffered from progressive dementia, which worsened over time. He started engaging in inappropriate behaviours, making imprudent financial decisions with his business, and expressed paranoid beliefs. In 2007 he began to regularly play mail-away scam lotteries in foreign countries and was convinced he was winning significant sums, without ever having received a dime.[13]

In April 2008 both Faye and Richard executed new Wills "under most suspicious circumstances" as described by the appellate court.[14] The execution of the Wills involved two lawyers: the first was a social friend of Faye's and Richard's and was actually in debt to Faye from a loan she had provided  him a year earlier. He referred them to a second lawyer, a former partner of his, to have the Wills drafted and executed. The drafting lawyer testified that he had no personal interactions with the couple prior to their appearance at his office to sign their new Wills and that he provided no legal advice to them. He had no knowledge of Richard's previous Will and he testified that it was the referring lawyer who provided the instructions for the preparation of the Wills (which the referring lawyer denied). The drafting lawyer only spent minimal time (10-15 minutes) with the couple when the Wills were executed, but the majority of his conversation was with Faye, who did most of the talking. The drafting lawyer did not discuss or ask about Richard's assets, whether he had children, whether he had been married before or the circumstances of his marriage to Faye.[15] The 2008 Will completely transformed Richard's prior estate plan. Richard's previous Will, drafted in 2006, left everything to his daughter. The 2006 Will was consistent with previous Wills Richard had executed. However, the 2008 Will left everything to Faye, with an existing charity created by Richard as the alternate beneficiary. Four months after the execution of the 2008 Will, the charity was dissolved.


Also in 2008 Faye wrote a letter in her own handwriting to Richard's insurance company requesting that the beneficiary of his insurance policy be changed from his daughter to herself. She wrote again in 2010 and in 2011 to the insurance company after Richard was hospitalized and diagnosed with severe dementia. Also, after Richard was hospitalized she asked for the drafting lawyer's firm to send over a durable power of attorney document appointing her as Richard's attorney, which she said she would have signed, witnessed and notarized. The law firm complied.


After Richard's death, his children challenged the 2008 Will arguing that their father lacked testamentary capacity and was unduly influenced by Faye in the execution of the Will. Under Florida law a Will challenge based on undue influence is similar to that in Canada: "When a Will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and will power of the testator".[16] The doctrine of undue influence, as explained by the Florida court, is based on the theory that the "testator is induced by various means, to execute an instrument which, although his, in outward form, is in reality not his Will, but the Will of another person which is substituted for that of testator". The Florida Supreme Court has established a set of non-exhaustive factors for courts to consider on the issue of undue influence:


a) Presence of the beneficiary at the execution of the Will;


b) Presence of the beneficiary on those occasions when the testator expressed a desire to make a Will;

c)  Recommendation by the beneficiary of an attorney to draw the Will;

d) Knowledge of the contents of the will by the beneficiary prior to execution;

e) Giving of instructions on preparation of the will by the beneficiary attorney drawing the Will;

f)  Securing of witnesses to the will by the beneficiary; and

g) Safekeeping of the Will by the beneficiary subsequent to execution.[17]


Looking at the evidence, the court found that "[b]efore and during the marriage, appellant preyed on Richard's paranoia and mental infirmity to alienate the decedent from his two children and their families."[18] Often undue influence is not usually exercised openly in the presence of others so it is usually proved by indirect evidence of facts and circumstances, however in this case the court was able to hear a recording of abusive behaviour by Faye. Faye inadvertently left a message on a cell phone of a former employee of Richard's business. She had dialled the number but forgot to hang up when it reached voicemail. On the voicemail Faye is "screaming at Richard that, Patty was still running the company", that Patty was "lying to him", that Patty was "no GD good", and that Patty was "just taking [his] money doing stuff behind [his] back". The recording also catches Faye yelling at Richard: "I told you she was stealing from you."


The court noted that the recording was "a significant insight into the dynamics of the marital relationship" and that "it is rare in a case like this to have such a glimpse into an abusive marital relationship".[19] The trial judge also commented on Faye's actions of writing to Richard's insurance company and requesting the durable power of attorney after he was hospitalized, noting that if Faye was "so bold as to openly display such influence over [Richard]" then the court could "reasonably infer that similar or greater influence was occurring in the dark during the marriage".[20]

The appellate court found no error in the trial judge's conclusion and affirmed the final judgment which invalidated the 2008 Will based on undue influence.


Meanwhile in Canada...


While this case happened in Florida, this scenario plays out here in Canada all too often as well. And with an aging population it will likely continue to increase. Had this case happened in Canada it is likely a Canadian court would have also found that Richard was unduly influenced to execute the 2008 Will. Similar to the Florida court's non-exhaustive list of indicators of possible undue influence, two Ontario cases provide "red-flags" for undue influence in Gironda v. Gironda[21] and Tate v. Gueguegirre[22] and include:

  • 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;
  • The testator has made testamentary changes similar to changes made to other documents such as power of attorney documents;
  • A substantial pre-death transfer of wealth from the testator to the beneficiary;
  • The testator's failure to provide a reason or explanation for leaving his entire estate to the beneficiary and excluding others who would expect to inherit;
  • The use of a lawyer chosen by the beneficiary and previously unknown to the testator;
  •  The beneficiary conveyed the instructions to the lawyer;
  • The beneficiary received a draft of the Will before it was executed and the beneficiary took the testator to the lawyer to have it executed;
  • Any documented statements that the testator was afraid of the respondent.

Faye isolated Richard in this case, used a lawyer she knew and who owed her money, attended the office with Richard when the Will was executed and likely conveyed the instructions for the Will. The drafting lawyer failed to meet with Richard alone, did not ask any probing questions, or any basic questions about Richard's assets, family or previous Wills. This case is a clear example of "what not to do" as a drafting solicitor.

[1] S.N.S. 2013 c.2 (the "CSA").

[2] 2015 NSSC 71 at para.7.

[3] 2015 NSSC 71 at para. 11.

[4] 2015 NSSC 71 at para. 16

[5] 2015 NSSC 71 at para. 20

[6] Section 3(1)(b) of the CSA.

[7] See ss. 5, 6, and 9 of the CSA. The justice of the peace can grant an order if he or she is satisfied on a balance of probabilities that the respondent engaged in cyberbullying of the subject and that there are reasonable grounds to believe that the respondent will engage in cyberbullying of the subject in the future.

[8] S.26G(1) of the SCNA.

[9] 2015 NSSC 71 at para. 30

[10] 2015 NSSC 71 at para.32.

[11] Some provinces and territories (Ontario, Quebec, Alberta, New Brunswick , Manitoba, and Northwest Territories) have legislation directed specifically at schools and students, but none as broad as the Nova Scotia legislation: http://mediasmarts.ca/digital-media-literacy/digital-issues/cyberbulling/cyberbullying-law Accessed on April 9, 2015.

[12] Blinn v. Carlman, No. 4D13-1156 (Fla. 4th DCA 2015), affirming Circuit Court Decision, 15th District, Palm Beach County, Case No. 502012CP003699XXXXMB (Blinn v. Carlman).

[13] Blinn v. Carlman at p.2.

[14] Blinn v. Carlman at p.3.

[15] Blinn v. Carlman, trial decision, at para.14.

[16] Blinn v. Carlman, at p.1.

[17] Blinn v.Carlman, at p.2

[18] Blinn v. Carlman, at p.4.

[19] Blinn v. Carlman, at p.4-5.

[20] Blinn v. Carlman, at p.5

[21] 2013 ONSC 4133 at para.56.

[22] 2015 ONSC 844 (Div.Ct) at para.9.



1. LSUC: 12th Annual Real Estate Law Summit

The Elder Real Estate Client - How do you know the client has the capacity to give instructions? How do you gage capacity?

April 22-23, 2015

Speaker: Kimberly Whaley and Ameena Sultan


2. Estate Planning and Litigation Forum, Cambridge, Langdon Hall

April 26 - 28, 2015

Speaker: Kimberly Whaley 



3. LSUC 6-Minute Estate Lawyer, May 6, 2015

Speakers: Kimberly Whaley, Estate Court Update


4. BAYCREST Professional Advisory Group, May 7, 2015

Join WEL at the Baycrest Professional Advisory Breakfast on May 7, 2015. Enjoy breakfast, CPD credits, and important updates in trust and estate legislation from Alexandra Spinner, Partner, Tax Group, Crowe Soberman and others. 

5. STEP Canada- Elder Care: A Practical Approach, May 13, 2015

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; and Trevor Parry M.A., LL.B, LL.M (Tax), TEP, Executive VP and National Sales Director at GBL Actuaries and Consultants



6. NAELA Annual Conference 2015, Orlando, Florida

May 14-16, 2015



7. Elder Abuse Conference, Ontario Police College, Aylmer Ontario

May 21, 2015, Predatory Marriages

Speaker: Kimberly Whaley


8. Nice Knowledge Exchange, May 28, 2015

Physician Assisted Suicide

Speakers: Kimberly Whaley and Heather Hogan  



9. ILCO Conference, May 29, 2015

Speaker, Kimberly Whaley and Heather Hogan



10. B'nai Brith Conference

Gironda Estate - Undue Influence

June 2, 2015

Speakers:  Kimberly Whaley and Heather Hogan

Link to info


11. LSUC Program: Family Law and the Elderly Client
Capacity To Marry, Divorce, Separate, Divorce, And Live Common Law, 
June 9, 2015

Speaker: Kimberly Whaley

Chair: Jan Goddard and Nimale Gamage


12. The Scarborough Hospital's Annual Geriatric Education Day, Scarborough General Hospital: Planning for Future Disability

June 12, 2015

Speaker: Kimberly Whaley, Heather Hogan & Mark Handelman


13. STEP CANADA National Conference

Attacking and Defending Gifts,  June 18-19, 2015

Speaker: Kimberly Whaley with John Poyser, Traditional Law LLP 



14. LSUC, Practice Gems, The Administration of Estates 2015

September 10, 2015

Co-Chairs: Kimberly Whaley and Tim Grieve

15. OBA, YLD, Wills and Estate Planning: A Primer
September 29, 2015
The Initial Client Meeting: Practice Issues - Before the Meeting
Speakers: Kimberly Whaley and Lionel Tupman 


16. LSUC Estates Summit

October 7 and 8, 2015


Speakers: Kimberly Whaley and John Poyser


17. CCEL 2015 Elder Law Conference, BC

Capacity and Predatory Marriages

November 12-15, 2015

Speaker: Kimberly Whaley 

IV. In Case You Missed It - Last Month's Highlights from Our Blog 

V. Newsletter Archive

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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. Recent Blog Posts
V. Newsletter Archive

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Contact Info

45 St. Clair Ave West
Suite 600
Toronto, ON, M4V 1K9
Tel: (416) 925-7400 
Fax: (416) 925-7464

Kimberly A. Whaley
(416) 355-3250
Mark Handelman
Firm Counsel
(416) 355-3254

Albert H. Oosterhoff
Firm Counsel
(416) 355-3266
Ameena Sultan
Associate Lawyer
(416) 355-3258


Benjamin D. Arkin
Associate Lawyer
(416) 355-3264 

Heather B. Hogan
Associate Lawyer
(416) 355-3262

Lionel J. Tupman
Associate Lawyer
(416) 355-3258
Deborah Stade
Office Manager
(416) 355-3252
Bibi Minoo
Estates Clerk
(416) 355-3251

Birute Lyons
Law Clerk
(416) 355-3259

Marylin Tait 

Legal Assistant

(416) 355-3255


Rita McHorgh
Legal Assistant
(416) 355-3261

Celine Byer

Office Coordinator

(416) 355-3253






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