Undue influence

Total 45 Posts

Undue Influence in Estate Planning

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This Blog was written by: Alicia Godin, Estate and Trust Consultant, Scotiatrust Historically the area of estates was not particularly litigious, but as families and financial circumstances become more complex, litigation involving estates has become more frequent. Frequently touted, but notoriously difficult to prove, is the allegation of someone being unduly influenced in making their Will. A client of mine (let’s call him Derek) passed away leaving behind his (younger)….

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Capacity Law, Estate Litigation, Uncategorized, Undue influence

When is a Gift not a Gift?

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Styres v. Martin 2018 ONCA 956 is a case of a gift that unfolded a saga (not over yet and far from it) of diminished capacity, alleged breach of trust, breach of fiduciary duty, unjust enrichment, undue influence to name a few. Mr. Styres lived in a house he built on land given by his father, for about 20 years, when in 1998, he suffered a very serious brain injury….

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Capacity Law, Caregiving, Disability, Estate Litigation, Power of Attorney, Property, Real Estate, Resulting Trust, Trusts, Uncategorized, Undue influence

Some Suggestions on Evaluating Undue Influence in the Court of Public Opinion

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In recent weeks, Canadian politics has been rocked by the so-called “SNC-Lavalin Scandal.” One of the allegations has been whether former Attorney General Jody Wilson-Raybould was pressured or unduly influenced by the Prime Minister’s Office to resolve the corruption and fraud case against SNC-Lavalin in an effort to spare the engineering giant from criminal prosecution. In her February 27, 2019, testimony before the House of Commons, Ms. Wilson-Raybould suggested that….

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Capacity Law, In the News, Undue influence

Undue Influence by “Unwitting Proxy”

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Undue influence results in benefits to a beneficiary/donee which would not have occurred except for the undue influence imposed by the beneficiary/donee upon the testator/donor. Undue influence can be conceptualized into two distinct types: (1) “actual” undue influence and (2) “presumed” undue influence. Actual undue influence is concerned with coercive or deceptive behaviour. As explained by Lord Justice Lindley in the seminal case of Allcard v. Skinner,[i] actual undue influence….

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Capacity Law, Elder Law, Guardianship, Power of Attorney, Powers Of Attorney and Guardianship Disputes, Resulting Trust, Testamentary Capacity, Trustee, Trustee Disputes, Undue influence

Medical Assistance in Dying (MAiD) and Undue Influence

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In 2015, the Supreme Court of Canada held that the ban on Medical Assistance in Dying (MAiD) was unconstitutional (for a summary of the decision, click here). However, MAiD is not available to all persons; to qualify, a person requesting MAiD must have a grievous and irremediable medical condition including an illness, disease or disability. In its seminal decision, Carter v. Canada (Attorney General), 2015 SCC 5, the Supreme Court of….

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Capacity Law, Disability, Elder Care, Elder Law, Geriatric Care Management, In the News, Testamentary Capacity, Undue influence

Trust and (Mis)Communication in Families

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There is a recurrent theme that I continue to see in my elder care work with families. It involves a breakdown in communication that has likely started sometime ago. As a result of this miscommunication, the trusting relationship that I would like to be believe originally existed there, has been damaged. This lack of trust seems to revolve around several parties and may include distrust from parent to child and/or….

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Family Conflict, Power of Attorney, Undue influence
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