Diane took position that the transfer of the funds represented gifts to her from her father. Her siblings held that the assets were being held on a resulting trust and formed part of the property of the deceased’s estate. In addition to these cash transfers, Diane’s siblings claimed that a camper van given to Diane by the deceased during his lifetime was also subject to a resulting trust and should be included in the assets of the deceased’s estate.

Diane’s siblings took her to Court.

The trial judge referred to the leading 2007 decision of the Supreme Court of Canada in Pecore v. Pecore where the Court ruled that the law presumes a resulting trust when a gratuitous transfer is made from a parent to an adult child. In Pecore, the Supreme Court held that where such a transfer is made and is challenged, the onus is on the recipient of the disputed gift to prove on a balance of probabilities that a gift was intended.

While the trial judge stated that he had difficulty with the testimony of the witnesses from both sides of the dispute, he was mindful that the evidence had to be examined with care, even with suspicion when an adult child is alleging that the transfer of property is a gift.

As evidence of intention, the judge looked to the last 2 wills made by the deceased in 1983 and 2000 in which he showed an intention to treat his children equally. He ruled that a gift of over 90% of the father’s net worth to one child was inconsistent with this intention. The judge accordingly ruled that the $ 400,000.00 given to Diane and her husband belonged to the estate and had to be shared with her siblings. As for the camper, the judge ruled that it was a gift, as there was evidence by way of Retail Sales Tax exemptions documents that indicated the vehicle was transferred as a gift.

If a parent intends to make a gift, clear evidence of intention such as a written declaration of intent is helpful to determine the issue. The donor parent should obtain independent legal advice to establish that the parent has capacity to make the gift and is not being unduly influenced.

Click here to read the full report of the decision.

My best wishes to all of you for a great and Happy Family Day weekend without any sibling fights!

I thought I would share this childhood video of one of my clients ( just kidding – but it could be!). Hope your weekend is more peaceful.

See you next week!

Ms. Rinehart, who just turned 58, inherited her wealth from her late father the Australian iron ore magnate, Lang Hancock.

Ms. Rinehart is currently embroiled in a legal battle with three of her children, John, Bianca and Hope. Her other child, daughter Gina sides with Mom. The three siblings are seeking removal of Mom as Trustee of the family trust.

The trust was set up to keep the family’s financial affairs private but now that the dispute has proceeded to Court, the family’s dirty laundry is out in the open for all to see and read.

Emails released in Court have disclosed the bitter dispute between Mom and the siblings .

In one email to her mother, daughter Hope Rinehart Welker requested a birthday present of a chef, bodyguard and housekeeper because she was down to her last “$ 60,000.00” and Mom was only paying her husband “$ 1 per year” ( no mention where the husband gets the rest of his income).

Apparently, being rich isn’t all it’s made out to be. Daughter Hope wrote Mom:

“ I don’t think you understand what it means now that the whole world thinks you’re going to be wealthier than Bill Gates- it means we all need bodyguards and very safe homes!….Even my friends who have nothing compared to your wealth have more staff.”

So like my Mom says : “Money does not buy happiness”.

But it would be nice to have a personal chef !

Shirley Leathers died of cancer in 2006 after she was misdiagnosed. Her family sued the doctor for malpractice and received $ 1 million in a wrongful death settlement. After deducting legal fees and expenses, there was about $ 550,000.00 left.(Maybe I should switch from estate litigation to malpractice litigation!)

Shirley left four adult children. Her daughter Dell Leathers-Buford was appointed as administrator of the estate with the understanding that she and her siblings would get an equal share of the settlement money which was the main asset of the estate. But, she short-changed her siblings by over $ 230,000.00. She hid the fraud by lying about estate expenses and by lying in probate court about a trust that had been established for a granddaughter.

Her siblings had never seen the settlement agreement and when they asked for a copy, she put them off.

The probate judge removed her as administrator of the estate and referred her case to the district attorney. Leathers- Buford was charged and convicted of perjury, larceny and embezzlement. Her husband also participated in the scheme and was also convicted. They were each sentenced to 18 months in jail. The judge ordered the husband to spend 6 months in jail and suspended the balance of his sentence.

But Dell’s brothers asked the judge not to send their sister to jail notwithstanding that she cheated them out of their inheritance.

“She’s not a hard–core criminal at all”, her brother Daryl Leathers said, (according to a report in the Boston Globe). “She didn’t give us what she was supposed to, but she did give us some money. Since the court proceedings, we actually started talking again.”

I guess blood really is thicker than water.

As a lawyer, who represents clients involved in estate disputes in Court, I am amazed how many estate fights drag on when the costs are almost bankrupting the parties.

In estate matters, emotions can run high and can often cloud one’s judgment.

In Ontario, a lot of clients do not appreciate that if they go to Court over an estate dispute, they run the risk of being hit with a huge award of thousands of dollars of costs if they lose.

The Ontario Court of Appeal in the case of McDougald Estate v. Gooderham established the principle that estate litigation is like any other type of civil litigation and that except in limited situations, the loser will be ordered to pay the costs of the winning party.

In a case called Salter v. Salter Estate , Justice Brown wrote:

“Parties cannot treat the assets of an estate as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation. The “loser pays” principle brings needed discipline to civil litigation by requiring parties to assess their personal exposure to costs before launching down the road of a lawsuit or a motion. There is no reason why such discipline should be absent from estate litigation. Quite the contrary. Given the charged emotional dynamics of most pieces of estates litigation, an even greater need exists to impose the discipline of the general costs principle of “loser pays” in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes.”

Before embarking on any litigation involving an estate, it is important to get advice as to the potential risks involved and the merits of proceeding with the case.

Once a parent needs care due to physical or mental incapacity, there are great demands made upon children to step up and take charge.

According to the Canadian Caregiver Coalition at least 2.85 million Canadians serve as unpaid caregivers to relatives while simultaneously juggling their own work, family and household responsibilities.

In previous generations, it was not uncommon for a parent to move in with a child. That was fine when there were one income families and someone was at home during the day to look after the parent. Now, with most couples both spouses are working and the stress of looking after a frail parent is even greater.

If there is more than one child, then at least there is the opportunity to share duties. However, today children are often living in different cities from their parents and it is not always practical to rely upon everyone to pitch in. Even if everyone lives in the same city as the parent, family dynamics being what they are, invariably one sibling may end up assuming the lion’s share of responsibility.

An online post from care.com quotes Francine Russo who has done research on siblings and care giving. Russo has found that in 90 per cent of the families one sibling shoulders more- if not most of the caregiving burden.

I was at a funeral recently for a mother who died leaving two surviving children, a son and daughter. Both children delivered loving and eloquent eulogies for their mother. However, it was interesting to listen to the daughter mention that she had personally inspected a dozen nursing homes before having their mother move into the facility. I am certain that her brother contributed as well but this was an example of one sibling taking charge.

This of course has the potential to breed resentment as the “take-charge” sibling gives up on her social life and even ignores her own spouse and children as a result. The sibling’s business or job may also suffer as a result and the sibling may also become ill.

There are not only tensions over time but money. Siblings might not agree how to spend a parent’s money. Should the parent be put in a nursing home or should the parent remain at home with paid caregivers? If there are not enough funds, should the children contribute their own funds? (In Ontario children have a duty to support their parents).

If one sibling takes over the lion share of the care or has the parent move in, should that sibling be compensated? By whom? Should the sibling get a larger portion of the estate?

Obviously, each family’s situation is unique. To avoid or minimize conflicts. Russo suggests that the key is communication. Ideally, the siblings and parents will enter into a dialogue to ascertain the parent’s wishes before the parent is incapable of participating in the discussion. Personal meetings and phone calls work better than emails.

Siblings need to understand that caring for a parent is stressful and that much energy and time and resources will be involved to keep things moving as smoothly as possible.

If necessary, get the help of a social worker or family therapist to try and provide information and objective advice.

Sometimes outside professionals such as a mediator or eldercare consultant can help get the difficult conversations started.

The October 2011 edition of One to One Insights, the CIBC Wood Gundy newsletter contains an interview with Debbie Gilbert, founder of Toronto based eldercare consulting practice Generations . Gilbert recommends making a care plan. She asks families questions designed to help them explore priorities and possibilities:

• Which care tasks are most important to the caregiver to provide?
• Are there tasks that other family members can take on?
• Have community and government funded service providers or privately- hired caregivers been considered?
• How can the caregiver schedule regular breaks or perhaps a much needed vacation?
• What specific support and strategies are needed for long distance caregiving?

Working with an eldercare consultant can help caregivers and their family deal with the stress and potential conflicts involved in caring for an elderly parent. As Gilbert says:

“The care years can be overwhelming. You don’t have to make this journey alone”.

Siblings fight not only as children but when they grow up- when they have bigger things to fight about. When they’re little and not so little and the parents are around, the fights tend to be more controlled. But once the parental referees are out of the picture, the gloves come off!

In future blogs, I plan to write about topics that touch upon estate fights between siblings. I will be sharing some interesting stories from actual Court cases and offer some ideas as to how you can avoid the sibling fight in Court. I also plan to invite guest bloggers to share their views.

If you have any topics or suggestions for my blog, please send me a note.