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Making A Will Can Save Your Family A Bundle

When Heinz Sommerfeld died in June 2017 at age 77 in a GTA nursing home, the lifelong bachelor — he had no children — left no instructions on how to distribute his wealth.
After working his entire adult life for Ontario’s Department of Highways, Sommerfeld left behind an estate valued at $800,000.
But rather than that money going to his rightful heir, a younger half-brother, it ended up in a bank account belonging to a Toronto police officer who had allegedly submitted a fake will claiming he was the beneficiary. According to investigators, that officer — veteran Const. Robert Konashewych, 38 — was aided by a senior client representative at the province’s Office of the Public Trustee and Guardian.
The office is responsible for tracking down rightful heirs and determines who inherits property or money when a person dies without a will.
Konashewych is charged with defrauding the estate belonging to Sommerfeld, along with defrauding his brother, Peter Stelter, now 75. The 52 Division officer remains on paid suspension as required under the Police Services Act. Also charged is the government employee, Adellene Balgobin, 34. At the time of their arrest, police said the pair were “known to each other prior to the alleged offences taking place.”
According to Toronto police professional standards office, Konashewych “swore and filed a false affidavit with the courts, supporting his claim that he was the beneficiary of the will.” In 2018, the officer received payments in excess of $800,000, police said last year.

https://www.thestar.com/news/gta/2021/10/25/this-ontario-man-died-without-a-will-a-toronto-police-officer-is-charged-with-stealing-his-800000-estate.html

Not All Wills are made equal

Open courts is the key principle of common law legal doctrine as justice must not only be done fairly; it should also be seen as being done fairly. The court records and court proceedings are always open to public, except very exceptional circumstance.

Under the common law, all Wills when filed in the court for probate application become part of the public record and must be available to public. Not sure when the Will is that of a monarch or member of monarch’s family. Monarch, more precisely called Sovereign is above lay members of public and is entitled certain unique protections.

The contents of the will of Prince Philip, the late husband of Queen Elizabeth II, are to remain secret for at least 90 years, a High Court judge ruled.

Philip, the Duke of Edinburgh and the longest-serving royal consort in British history, died in April at Windsor Castle. He was 99 years old.

As is the convention following the death of a senior royal, an application was made to the Family Division at London’s High Court that Philip’s will remain sealed and not available to the public, as most wills are after they are granted probate.

Andrew McFarlane, the president of the court’s Family Division, ruled in favor of the request.

“The degree of publicity that publication would be likely to attract would be very extensive and wholly contrary to the aim of maintaining the dignity of the Sovereign,” McFarlane said in a ruling published on Thursday.

McFarlane also said that he is the custodian of a safe with more than 30 envelopes containing sealed royal wills, including those of the late Queen Mother and the queen’s sister, Princess Margaret. They both died in 2002.

He said the oldest envelope contains the will of Prince Francis of Teck, Queen Mary’s younger brother and great uncle of Queen Elizabeth II. He died in 1910 at the age of 40 after catching pneumonia.

“There is a need to enhance the protection afforded to truly private aspects of the lives of this limited group of individuals in order to maintain the dignity of the Sovereign and close members of Her family,” he said.

McFarlane said that some royal wills may never see the light of day.

“There may be circumstances where it would not be appropriate for a Royal will to be unsealed even after that period, whether in full or in part,” he wrote.

https://www.washingtonpost.com/world/europe/prince-philip-will/2021/09/17/c2b04658-17b6-11ec-a019-cb193b28aa73_story.html

Does Taunting meet Cruelty Grounds?

The case Lesko v. Lesko, 2021 ONCA 369 presented a very interesting case where Husband bought a fixer upper property before marriage. Wife contributed no monies towards purchase of the property but contributed her labour etc. towards extensive gutting and renovation to the property. Post marriage, she contributed towards mortgage payments. Wife made a trust claim for the property prior the marriage and was successful. The court allowed her to deduct 50% of the property value (her trust claim) on her Net Family Property, thus increasing her Equalization payment significantly.

The court of Appeal dismissed the husband’s appeal of an order that awarded an equalization payment to the wife, based on her unjust enrichment claim that she had a 50% interest in a property the husband acquired prior to their marriage. That unjust enrichment finding permitted the wife to deduct 50% of the marriage date value of that property in her net family property calculation. Before the parties married, they agreed the husband would purchase a “fixer upper” (the Taplow property), where they resided together while doing extensive renovations on the home. The wife did not contribute to the purchase price, but she contributed to the cost of over half of the mortgage for six years until the parties’ first child was born. Four years after the parties married, the Taplow property was sold and the parties put the full sale proceeds into another ‘fixer upper,” with the intention of renovating it and selling it for a profit.

The court held the trial judge did not err in concluding that the wife established a claim for unjust enrichment. The evidence showed the parties jointly planned to purchase the Taplow property, renovate it and sell it at a profit. The wife made significant monetary and other contributions to the acquisition, preservation, maintenance and improvement of the property. There was a sufficient connection between the wife’s contributions and the property to impose a constructive trust in her favour. There was no juristic reason for the husband’s enrichment. The court rejected the husband’s contention that prior to their marriage, the parties’ relationship was one of landlord and tenant. When they moved into the Taplow property, it was barely liveable and not a situation in which one party would pay rent. The parties selected the property together with the intention of gutting and renovating it for a profit, with both parties expecting to benefit.

The trial judge was not required to consider any entitlement that the wife would acquire post-marriage under the Family Law Act equalization scheme as a remedy to the unjust enrichment claim. The wife’s claim that she was entitled to an interest in a property owned at the date of marriage, based on unjust enrichment arising prior to marriage, required an analysis under the common law framework.

The evidence supported the judge’s finding that the wife was entitled to deduct 50% of the net value of the Taplow property on the date of marriage, for the purposes of calculating her net family property, as a reasonable and fair equitable remedy. This finding was supported by evidence that the husband applied the full proceeds from the sale of that property to acquire another property and put the wife on title as a co-owner: Lesko v. Lesko, 2021 ONCA 369 (Strathy C.J.O., Brown and Miller JJ.A.).

They key take away is that trust claims are powerful tools at equity to remedy unjust enrichment of one party at the expense of the other. It always helps to document parties’ true intentions to avoid such claims down the road.

A tragic story of a sweet little girl

Here is a tragic story of a sweet little girl whose parents were involved in a bitter custody battle. The little girl, Keira, is now dead. Her mother believes Keira’s father killed himself and Keira as courts were about to reduce his parenting time. The Halton Police are investigating. Keira’s parents separated when she was not even one year old. The courts repeatedly chastised Father for lying and defrauding the Court. Still judges tried to blame both parties equally and asked them to get along. Is that fair when one party is so unreasonable. Take a read and see how the Family law has descended to such a tragic state and how courts failed this little girl. Keira’s mother is a doctor who is now married to a Family law lawyer. If their combined financial and legal resources were unable to protect a sweet little girl, Keira, who can? A very sad reading that must force us to reflect on our Family Law courts, judges, lawyers and lack of alternate resources. As a Family Law lawyer I see such stories far too often. We must strive to reform our legal system which is cumbersome, expensive and super slow. #FamilyLaw #Divorce #Custody

https://www.thestar.com/news/gta/2020/02/16/the-court-said-it-wasnt-urgent-how-a-bitter-custody-battle-ended-with-the-death-of-a-gta-kindergartener-and-her-father.html

Electronic Evidence and Family Law

Electronic evidence refers video or audio recordings, emails, Facebook posts and cell phone recordings, amongst many other things. They are often useful to courts and can provide meaningful evidence to a Judge, however they also have the potential for serious misuse such as strategically editing and forging such evidence. In family law cases litigants often find things posted on social media or via text message are used in courts. It is important to be cautious when using such means to communication that nothing is said or done that may later be used against you in a court proceeding to your detriment.

Under the Canadian Evidence Act, s.31.1 a party seeking to admit an electronic document in court is responsible for providing its authenticity and must produce evidence capable of supporting a finding that the electronic document is what it purports to be.

In the recent case of Lenihan v. Shankar, 2021 CarswellOnt 364 (S.C.J.) Justice McGee discussed issues arising with the increased use of electronic evidence in family matters. Specifically, the potential for misuse of such evidence in high conflict cases. She stated, “Fake electronic evidence has the potential to open up a whole new battleground in high conflict family law litigation, and it poses specific challenges for Courts. Generally, email and social media protocols have no internal mechanism for authentication, and the low threshold in the Evidence Act that requires only some evidence: direct and/or circumstantial that the thing “is what it appears to be;” can make determinations highly contextual.” She urged that parties and lawyers in such family matters to be on guard for potential misuses.

In this particular case, the mother engaged in a concerted effort to alienate a two year of child from her father. There was a lengthy four-week custody trial where the court ended up disregarding much of the mother’s evidence as much of it was fake and forged, including a forged paternity test and sperm donor agreement along with fake emails between the father and his lawyer that purported to show them planning a criminal act against the mother. She further had a witness who claimed to be the mother’s first husband. Justice McGee disqualified the witness finding that “he was not who he was presented to be.”

Ultimately, the mother’s attempts to fake evidence resulted in a hefty cost order against her of $438,000.00. The court also granted the father custody of the child. This should serve as a warning to litigants that attempting such tactics to gain advantage during litigation will not be tolerated by the court. It is likely that issues such as this will continue to arise given the increasing use of electronic evidence in family law matters and the rapidly evolving technology that makes catching forgeries more difficult. Parties, courts and lawyers have be more vigilant in ensuring that false electronic evidence is not being used. It is recommended that you contact a lawyer to discuss these issues and any questions you may have relating to the use of electronic evidence in your family matter.

Author: dhillonlaw

Making A Will Can Save Your Family A Bundle

Not All Wills are made equal

Does Taunting meet Cruelty Grounds?

A tragic story of a sweet little girl

Electronic Evidence and Family Law

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