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Tiger King: Murder, Mayhem, Madness and…Lessons About the Law of Estates?

Netflix’s recent hit docuseries, “Tiger King: Murder, Mayhem, and Madness”, chronicles the true story of the self-professed “Tiger King”, Joe Maldonado-Passage, also known as “Joe Exotic”. Joe was an eccentric private zookeeper, country music singer, and one-time candidate for Governor of Oklahoma who is currently serving a 22 year federal prison sentence for hiring a hitman to murder his rival, Carole Baskin, as well as other wildlife-related offences.

Believe it or not, this bizarre story from the big-cat world raises legal issues pertaining to the law of estates. Can a person responsible for another’s death receive an inheritance from the deceased’s estate? What happens to a person’s estate when they mysteriously disappear? What actions can an attorney for property take on their behalf? Does it matter who prepares or signs the power of attorney document as a witness? These issues will be discussed below.

Background

Joe Exotic’s animosity towards Baskin, CEO of Big Cat Rescue in Tampa, Florida,  appears to have stemmed from her efforts to shut down his zoo and tiger breeding business, citing animal abuse. This precipitated a years-long feud which included a $1 million trademark lawsuit by Baskin, as well as online propaganda and numerous rage-fueled tirades on Facebook and YouTube.

The Disappearance of Don Lewis

One of the more inflammatory accusations made by Exotic against Baskin (of which there are many) is that she had a hand in the disappearance of her husband, Don Lewis.

According to the documentary, Baskin and Lewis entered into the world of exotic animals in 1992, when they began purchasing bobcats and other cats, and subsequently opened the animal sanctuary which became Big Cat Rescue.

Lewis was last seen on August 18, 1997. According to Baskin, the last thing he said to her was that he was leaving “early, early, early” the next day to transport cars to Costa Rica. He was reported missing on Aug. 19, 1997, and three or four days later his abandoned van was found at the airport with the keys and his briefcase inside.

Baskin has suggested that Lewis had memory issues and confusion which may have contributed to his disappearance. But other people close to Lewis said that was not true.

Apparently, in the years before Lewis’ disappearance, the couple had disagreed about the direction of their business – Baskin was concerned about animal welfare, while Lewis saw the enterprise as more of a breeding and monetary opportunity. There were also rumours of Lewis being a womanizer and possibly having a mistress in Costa Rica.

Immediately prior to his disappearance, it appears that matters escalated.  According to the documentary, Lewis sought an injunction against Baskin after she allegedly threatened to kill him for a second time. There was talk of divorce and the suggestion that Lewis attempted to arrange his affairs to minimize any entitlement of Baskin when they separated.

Lewis’ net worth at the time of his death is estimated to have been between $5 and $10 million.

Lewis’ Estate Planning

According to the documentary, Lewis gave his executive assistant Anne McQueen an envelope containing his petition for an injunction against Baskin, as well as Lewis and Baskin’s wills and powers of attorney which named McQueen as executor and attorney for both Lewis and Baskin. McQueen said Lewis told her to take the documents to the police if anything happened to him.

McQueen said that she kept the envelope containing the documents under her desk at Big Cat Rescue’s office. After Lewis disappeared, she says Baskin broke into the office and removed the wills and powers of attorney.

Baskin then produced a new will and power of attorney, purportedly executed by Lewis, which named her as Lewis’ attorney and as executor of his estate. The new power of attorney indicated that it was prepared by Baskin. The power of attorney also contained the following clause:

“This durable family power of attorney shall not be affected by any disability or disappearance.”

Given the circumstances, this clause raised the eyebrows of many. Lewis’ lawyer said that in his 37 years of practice, he had never seen a power of attorney include that type of language, calling it “terribly unusual.”

The Aftermath

Lewis was never found and no charges were laid with respect to his disappearance.

In the documentary, we heard from Lewis’ children and ex-wife from a previous marriage, that following Lewis’ disappearance, Baskin allegedly used her authority as his attorney to transfer property from the names of Lewis, his ex-wife, and his children into her own name. Baskin denied this and claimed that Lewis had disowned his children after his separation from his ex-wife, and in fact directed her to nullify their trust, which she did not do because she felt he would later regret the decision.

McQueen claims that Baskin had Lewis declared dead immediately after the mandatory five year period in the State of Florida, so as to proceed with the distribution of his estate.

Lewis’ children and ex-wife also claim that once the estate was distributed, they only received 10% of his estate, with the rest going to Baskin. This is disputed by Baskin, who claims that they received a higher percentage. In any event, however, there does not appear to be any question that Baskin received some benefit from Lewis’ estate.

The “Slayer Rule”

While Baskin has never been charged with Lewis’ disappearance, much less convicted, let’s consider the implications of a conviction for murder, assuming for a moment that the crime occurred in Canada.

Could Baskin receive an inheritance from Lewis’ estate if she was found to have wrongfully caused his death?

In Canada, and most common law jurisdictions, the answer is no. According to a legal doctrine called the “Slayer Rule”, also known as the “Forfeiture Rule”,  where a person commits a crime that results in the death of another, they are precluded from receiving any benefit from the deceased’s death which they would otherwise have been entitled to receive.1

The Slayer Rule appears to be limited to criminal killings.2 So, for example, if a court were to find that Baskin did in fact kill Lewis but was not criminally responsible on account of a mental disorder, the Slayer Rule would likely not apply and she would still be entitled to receive an inheritance from his estate.

Disappearance of a Testator or Donor

What happens to a person’s estate if, like Lewis, they disappear without a trace, leaving a will and a power of attorney?

In most jurisdictions, proof of the person’s death, either in the form of a death certificate or court order, is required in order to obtain probate and proceed to administer the estate. This poses an issue if the whereabouts of the person are unknown and their death has not been confirmed.

1. Obtaining a Declaration of Death

Pursuant to section 2 of the Declarations of Death Act, 2002,3 an “interested person” can apply to the Ontario Superior Court of Justice, on notice to any other interested persons of whom the applicant is aware, for an order declaring that an individual is dead.

An “interested person” may include, among others, the person’s next of kin, spouse, or a named executor of the individual’s estate under their Will.4

In order to meet the criteria, the applicant must show the court on a balance of probabilities that:5

  • the individual has disappeared in circumstances of peril or been absent for at least seven years;
  • the applicant has not heard of or from the individual since the disappearance or during the seven-year period;
  • to the applicant’s knowledge (after making reasonable inquiries), no other person has heard of or from the individual during the seven-year period;
  • the applicant has no reason to believe that the individual is alive; and
  • there is sufficient evidence to find that the individual is dead.

While the term “circumstances of peril” is not defined in the Act, it has been described by the court as “a situation of serious and immediate danger”.6

Thus, applying the facts from Tiger King to Ontario law, in all likelihood Baskin would be required to apply to court for an order declaring Lewis dead in accordance with the above criteria before she proceeded to apply for probate and administer his estate.

2. Duties of an Attorney for Property

As described above, Lewis’ ex-wife and children have alleged that Baskin used her authority as POA to transfer property belonging to Lewis and them to herself in the period between his disappearance and the court declaring him dead.

Would Baskin have been permitted to take such steps under Ontario law?

It depends.

While there does not appear to be case law dealing with the authority of an attorney in a situation where the grantor of the power of attorney has disappeared, it is improbable that such a scenario would be viewed by the courts as excusing the attorney from their strict duties under the common law and legislation.

Attorneys owe a fiduciary duty to the donor.7 The effect of the fiduciary role is such that in addition to any duties stipulated in the POA document, the attorney also has the obligation to exercise reasonable care, not make secret profits, not act contrary to the interests of the donor, and not exercise the power of attorney for his or her personal benefit unless authorized to do so by the document, or unless the attorney acts with the full knowledge and consent of his or her principal.8

The actions taken by Baskin, as described by Lewis’ ex-wife and children, would appear to be for her own benefit and thus violate her fiduciary duty to Lewis.

However, there are two sides to every story.

In Ontario, attorneys for property are authorized “to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will”.9 Thus attorneys are in some circumstances entitled to conduct estate planning on behalf of the grantor short of executing or varying a will, so long as such steps are consistent with their fiduciary duties to the grantor. This will depend on the facts and specific wording of the POA document.

Thus, depending on the specific language of Lewis’ power of attorney document (which is only partially revealed in the documentary) and the nature of the actions taken by Baskin, it remains possible that the steps taken by Baskin with respect to Lewis’ property were estate planning measures permissible under Ontario law.

Formalities of Execution for POAs

In Tiger King, Joe Exotic suggests that it is suspicious that Baskin prepared the new POA document relied on by her after his disappearance. It is not revealed in the documentary whether the document was signed by witnesses, and there is no mention of anyone taking issue with the authenticity of Lewis’ signature.

Would Lewis’ new POA be valid in Ontario?

The Substitute Decisions Act, 1992 specifies that a POA shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness. It also specifies that, among others, the grantor’s spouse or partner shall not be a witness.10

The Act further stipulates however, that while noncompliance renders the POA ineffective, a court may declare it to be effective if the court is satisfied that it is in the interests of the grantor or his or her dependants to do so.11

The Act is silent on who can draft the POA document and there does not appear to be case law in Ontario to suggest that there are restrictions with respect to who may author such a document.

Without knowing more, we cannot comment definitively on the validity of Lewis’ new POA. If it was not compliant with the formalities of execution or there was an indication that it was forged, there could be grounds to bring an application to terminate the POA or declare it void. In instances of forged POAs the courts have awarded punitive damages against the parties relying on the document.12

Takeaways

There is much about the Tiger King story that defies explanation, and it is quite possible that the mystery of what happened to Don Lewis may never be solved.  Nonetheless, the aim of this article has been to demystify certain legal issues which arose from the saga surrounding his disappearance and its aftermath. While Tiger King brought us mischief, madness, and some brushes with murder, we are also hopeful that the foregoing has left you with a better understanding of the law of estates.

Footnotes
  1.   Oldfield v. Transamerica Life Insurance Co. of Canada, 2002 SCC 22; Demeter v. Dominion Life Assurance Co., 1982 CarswellOnt 610 (Ont. C.A.).
     
  2.   Dhingra v Dhingra Estate, 2012 ONCA 261.
     
  3.   S.O. 2002, c. 14, Sched.
     
  4.   Declarations of Death Act, 2002, S.O. 2002, c. 14, Sched., s. 1.
     
  5.   Declarations of Death Act, 2002, S.O. 2002, c. 14, Sched., ss. 2(4), 2(5).
     
  6.   Poole v. Poole, 2008 CarswellOnt 4103 at para. 5.
     
  7.   Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 32.
     
  8.   Egli (Committee of) v. Egli, 2004 BCSC 529 at para. 82.
     
  9.   Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 7(2).
     
  10.   Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 10(2).
     
  11.   Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 10(4).
     
  12.   Dhillon v. Dhillon, 2006 CarswellBC 3200 (BCCA).
     

Peter Askew

Peter is an associate at Wagner Sidlofsky LLP and a member of the firm’s Estate and Commercial Litigation Groups.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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