As a service provider of any kind, have you ever been requested to help an existing client who is in a highly contentious situation? How did you uncover this, and how did you document your next steps?
Regardless of the sector that you operate within Ross Estate (Re), 2023 BCSC 467 (CanLII)[1] highlights some nice procedural considerations for due diligence, but ultimately reminds us that your documentation has value beyond your own liability.
A Closer Look at Ross Estate (Re)
The primary issue before the court was: if the parties required an in-person hearing to resolve questions of incapacity and undue influence or if they could resolve this in writing. Put differently, could the service providers avoid cross-examination if their written evidence is sufficient?
Siblings of the late Raymer Ross (“Ray”), Charles Ross and Patricia Weber, sought a declaration that:
- Ray’s Will from April 2, 2019 is invalid for lack of capacity or undue influence; and
- The Respondent, Korenna Matsen (“Korenna”) was not Ray’s spouse, despite the 2016 wedding.
Background
- Counsel for each side agreed that this matter could be resolved in writing.
- Ray lived with an intellectual disability his whole life, which is alleged to prevent Ray from solely carrying out his Independent Activities of Daily Living.
- self-administering medication
- house cleaning and laundry
- using the phone
- cooking, planning meals and serving
- managing finances
- transportation
- groceries
- Ray appointed a legal representative in 2001 who was the director of a local seniors’ centre.
- Ray contacted a law firm to draft a Will in 2001, however the lawyer had suspicions of potential incapacity and requested the input of Dr. Fedorchuk (Ray’s family doctor).
- Dr. Fedorchuk reference a past observation where Ray showed “possible evidence of delusional thought process.” On this opinion, the lawyer declined to take instructions and Dr. Fedorchuk made a referral to a geriatric psychiatrist in order to carry out a specialized evaluation for this purpose.
- In 2005 a Geriatric Psychiatrist carried out a testamentary evaluation wherein Ray was opined to be not capable to make and revoke a new Will.
- After the death of Ray’s mother in 2005, there are allegations that Ray could not keep up with the maintenance at the property and therefore it was sold and Ray’s portion of the inheritance is held by the PGT. Ray moved in with Korenna in 2015.
- In 2016 Korenna and Ray were married.
- Ray signed a new Will on April 2, 2019.
- In 2020, Ray died of a stroke.
Outcome:
The judge ordered cross-examinations to take place because testamentary and undue influence issues benefit greatly from testing credibility of the evidence.
“[Korenna] describes [Ray’s] capabilities and level of functioning in a way that is fundamentally at odds with the evidence of [Ray’s] brother and [Dr. Fedorchuk] …cross examination will be sufficient to assess credibility”
Justice Schultes in Ross Estate (Re).
Key Considerations!
- Take diligent notes. This will assist to recall important aspects of the interaction, if you are called to testify. Keep in mind, that ignoring information is creates a greater probability that the transaction is susceptible to a future challenge. See Rudin-Brown v Brown, 2023 ONCA 151, where a Power of Attorney is invalid due to insufficient documentation when the client lived with dementia; see also James v Belanger, 2023 ABKB 34.
- Family doctors and lawyers often do not have specialized training to assess capacity or provide opinions on capacity, therefore reaching out to other specialized people, can help to mitigate the success of a future challenge.
- Not all people that provide opinions on capacity will be qualified as an expert witness to provide evidence on the matter.
- It will be interesting to determine how the future decision addresses the validity of the representation agreement and the 1979 Will. Will the parties seek retrospective opinions on any of these documents?
- The difficulty for any service provider is that the contentious cases are not always straightforward and easy to identify. Staying current with literature, education and industry resources can improve your service with clients that live with diminishing capacity or in conflict.
If you have complex situations or your client lives with a complex condition, call a qualified capacity evaluator to assist where possible.
