Wills and estates litigator Sheila Morris' article "Vulnerable litigants and family members: A little help from my friends" looks at an undue influence claim where siblings clash over how their elderly parent was influenced in litigation over property ownership. The article was published on March 23, 2020 in the Lawyer's Daily and is the second of two.
The first article "Vulnerable litigants and family members: A little help from my friends" appears on our site here: https://www.mindengross.com/resources/news-events/2020/03/16/sheila-morris'-article-vulnerable-litigants-and-family-members-a-little-help-from-my-friends-published-in-lawyer's-daily
Read this article in the Lawyer's Daily: https://www.thelawyersdaily.ca/articles/18223/vulnerable-litigants-and-family-members-getting-proper-authorization (subscription required).
Vulnerable litigants and family members: Getting proper authorization
In the first part of this two-part series, we analyzed the recent decision of Justice Paul Perell in Kalia v. Kalia 2020 ONSC 935. We addressed the issues of whether or not an elderly or vulnerable litigant (in this case, Adarsh Kalia) can ever rely on a family member to assist in retaining a lawyer and getting legal advice. And what is a litigant to do (and, more importantly, not do) when they are concerned that their adversary lacks capacity? We will now discuss the court’s response to the litigants.
Justice Perell found as a fact that the plaintiff’s lawyer, Joga Chahal, of Bougadis, Chang LLP, was authorized to commence the action, and swiftly dismissed defendant Rakhi Kalia’s (one of Adarsh’s daughters) motion to have Bougadis, Chang LLP disqualified as lawyers of record. (The court did, however, grant Rakhi leave to deliver an amended Statement of Defence.)
The judge found that the 2015 power of attorney would have empowered Meeta Ingram (another daughter of Adarsh) to act as her mother’s agent in late 2016 in order to instruct Chahal and his firm to commence the legal proceedings. Even if there was no power of attorney, or if Meeta did not exercise it, then Adarsh was presumably capable of instructing her lawyer to sue. Either way, Chahal would have been properly authorized to commence the action. On these facts alone, the court concluded that there is no merit to Rakhi’s motion.
Justice Perell further explained that Chahal’s Rule 15.02 Notice (of the Rules of Civil Procedure) answered the question as to whether the law firm was authorized to commence litigation. If Rakhi was not satisfied, she should have brought proceedings under the Substitute Decisions Act (SDA) to set aside the power of attorney or bring a motion to appoint a litigation guardian. Indeed, a “very appropriate” litigation guardian was, in fact, appointed. The Public Guardian and Trustee (PGT) was yet another agent to authorize Chahal’s retainer and instruct him in the action. Once again, Chahal has a proper retainer and proper authorization.
In a damning conclusion, the court held that Rakhi’s “stubbornness in refusing to accept that Chahal was properly authorized to have these issues litigated and her obstinacy in persisting with an effort to have the action stayed or dismissed after the PGT was appointed has thwarted any progress in the action.” Indeed, Rakhi’s interlocutory proceedings caused a three-year delay in Kalia’s conveyancing claim.
Assisting elderly parents
Most significantly, the court makes instructive statements about a loved one’s role in their parents’ litigation, which is helpful both for drafting solicitors and for those considering or involved in a will challenge. In an unqualified statement, Justice Perell holds, at para 61: “There is nothing unusual or wrong in a litigant relying on a family member to assist him or her in retaining a lawyer and in obtaining legal advice ... [elderly] parents … are frequently assisted by their adult children when the parent needs the services of a lawyer. Once again, the lawyer acting for the parent who is being assisted by the adult child will be under no misapprehension that he or she is acting for the adult parent and not the adult child. There is no joint retainer and not conflict of interest for the lawyer.”
Justice Perell confirms that Rakhi was exactly right in her suspicion that Meeta was involved as her mother’s agent or assistant in retaining and instructing Chahal. However, Rakhi was mistaken in her thinking that, as a result, Chahal was not authorized to commence the proceeding. Justice Perell repeated that it is neither uncommon nor inappropriate to allow a client to be assisted by family members, even if other family members are disgruntled by the assistance.
Finally, the court clearly took issue with the procedural route Rakhi pursued in her litigation. The crux of Rakhi’s complaint should have been the 2015 power of attorney. If Rakhi was concerned that Meeta breached any of the fiduciary or other duties she owed her mother, she could have brought an application for directions from the court. Rakhi also could have sought to terminate the power of attorney and appoint a guardian of property under s. 22 of the SDA.
In all likelihood, Rakhi would still have faced an uphill battle, since the SDA requires a declaration of incapacity in order to appoint a guardian of property, and Rakhi would have had difficulty in getting her mother to submit to a capacity assessment. Furthermore, in order for the court to terminate a power of attorney, there must be “strong and compelling evidence of misconduct or neglect” on the part of the attorney. At least on the facts as presented in this motion, there is no such evidence.
This is the second of a two-part series. Read part one: Vulnerable litigants and family members: A little help from my friends on our site at: https://www.mindengross.com/resources/news-events/2020/03/16/sheila-morris'-article-vulnerable-litigants-and-family-members-a-little-help-from-my-friends-published-in-lawyer's-daily
If you have any concerns or questions regarding estate litigation, contact Sheila Morris at firstname.lastname@example.org.
Re-printed with permission from The Lawyer's Daily - originally published on March 23, 2020.