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Unconscionable Conduct and Dependants Support

In this video, two senior lawyers address a colleague’s innovative approach on how to defend a claim for support by a child who mistreated their parent.

This video depicts actual Lawyers from Wagner Sidlofsky LLP discussing legal principles, statutes and case law in an educational presentation.  The story used as a platform for the discussion and persons portrayed as potential or actual clients are fictitious. Other than our firm’s lawyers, any resemblance to real persons or real client stories is coincidental and is not intended and should not be inferred.

Transcript

David: Good morning David. Good morning Greg.

Greg: Good morning.

David: Good morning.

David: So I I just got off the phone with the potential client and I was hoping to get some advice from you both on how to proceed.

Greg: Of course, go ahead, tell us about the file.

David: So our client is one of two siblings. It’s him and his sister, and their father passed away just recently, and our client is named as the executor under the will. But he had little communication with his father prior to his father passing away. The father had been living with our client’s sister who who was supposed to be taking care of him. A couple weeks ago our client received a call and it was from his father saying that the father had fallen down and that he wasn’t feeling well and he also indicated that the daughter who’s supposed to be caring for him hadn’t been in the house in the last two months. So the son called 9-1-1 and and the father went to the hospital.

Greg: Well that’s that’s terrible. What did the client know about what treatment his father was getting at the time?

David: So he claims that he knew very little because the daughter had sequestered the father and really isolated him and our client wasn’t allowed to see him but as soon as he found out he called 9-1-1 and it turns out that the father hadn’t been getting his meds for a significant period of time and that he was severely dehydrated and had developed infections including a UTI and then the father eventually passed away about two weeks later from sepsis.

Greg: Well that’s pretty bad. What does the client want to achieve, does he want us to pursue a wrongful death suit against the sister?

David: I don’t think so I think he’s more concerned that his sister’s going to try and take more than her fair share at the estate so he’s looking to protect the will and his father’s wishes and ensure that his sister gets 50% and nothing more.

David: Okay so the only way that the sister is going to be able to increase her share of the estate to sue the estate and that’s most probably going to be for dependent support, which is what I guess the sister may very well do.

David: So what do you think about defending against that argument by arguing that the daughter’s conduct and leaving the father and neglecting the father was so unconscionable that it should disentitle her from any additional claim that she would otherwise be entitled to?

Greg: So I think that’s an interesting strategy. Now the daughter is going to argue that the legislation only mentions unconscionable behavior dis-entitling someone from support in the case of the spouse, and since we’re dealing with an adult child and not a spouse, she’ll say that the legislation doesn’t apply. So I think the son is going to have to address this on two fronts. First to analyze if the adult child is really a dependent and even if she is a dependent the fact that she already is getting half the estate would go against her argument that she was not adequately provided for, and second as you know there are a whole bunch of factors that the court takes into account in determining how much a dependent should receive from the estate, and one factor is the relationship between the daughter and her father, and I presume that we’re going to be able to argue that the terrible care that she gave her father should go against any claim that she has for getting additional support.

David: So do you think that we could argue that the slayer rule, which says that a person can’t benefit from their wrongdoing, for example if someone killed the deceased they can’t inherit then under their estate, do you think we can argue that that would apply here because of her neglect?

David: Well it’s an interesting thought. The slayer rule is part of the principle that a wrongdoer ought not to be able to profit from their wrong, but it’s really restrictive and so it would say that if the daughter was convicted of murder, that she would lose her inheritance under the will, but the same type of reasoning, and to echo what Greg was saying, may help us under the Succession Law Reform Act under the statute governing dependent support and the quality of that relationship may affect whether the claim is successful at all or may affect the quantum of support that’s ordered, and a case on point is Webb and Belway.

Greg: so that’s true but arguably with Webb and Belway the court accepted in principle that if the applicant’s actions were egregious or malicious so as to be unconscionable and to be a gross repudiation of the relationship then she can be dis-entitled to support. The question here is whether the sister meets that test, but I think it’s a novel approach and it might be one of the best options that the client can rely on to reduce his sister’s claims.

David: Yeah no I agree I think that at the very least, the conduct, the egregious conduct of the sister will be taken into account by the court as to quantum and perhaps a lot more, so I think that David, you have a lot to work with here.

David: So I know that this has only been a three-minute discussion and I’m going to have to do some more research before drafting the materials but it’s been really helpful and it’s definitely given us a direction to pursue so thanks again and I really appreciate your input.

David: No problem.

Greg: You’re welcome and good luck going forward.

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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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