Ontario and most provinces have Substitute Decisions Acts. When 90 year old dad becomes vulnerable because of his on-again off-again grasp of reality, the Substitute Decisions Act has a number of tools for dad’s children trying to protect him from the 31 year old waitress at dad’s favourite diner.
The sons were quick enough to foresee the circling waitresses at the diner and so the sons obtained power of attorney over dad’s property.
But we all know circling waitresses can move fast, so dad get’s married (which voids dad’s old will). Then off goes the wife-waitress to get a new will signed.
Section 2(2) of the Substitute Decisions Act puts the onus upon the waitress to prove that she did not have reasonable grounds to believe that dad was incapable when he signed the new will. This is a powerful tool. It deems the new will void unless the waitress can prove that it was perfectly reasonable for dad to do what he did.
Section 2(2) performs the function that Cullity J. had to find elsewhere in the common law. When Cullity J. heard Banton v Banton, the Substitute Decisions Act was not in force. Cullity J. could not rely upon s. 2(2). That is why Cullity J. went back to old English law (1870) to set out the three factors of testamentary capacity, (the third factor which proved the effective factor in stopping the waitress).
Section 32 and section 38 Substitute Decisions Act impose a fiduciary duty upon the power of attorney. This means that the waitress can’t self-deal (she can’t direct the assets to herself). So when she tried to do so with the new will, Cullity J. struck it down.
Unfortunately for the children in Banton v Banton, the sons set up a trust (years earlier) which dealt the residue of dad’s property to themselves. This was fatal. a fiduciary cannot self-deal. Cullity J. struck down the trust.
Dickens wrote Bleak House fueled by the evils committed chasing estates and the inadvertent evils produced by the English High Court deciding estates.
Does anybody think that Cullity J. should have left the matter with the waitress-wife getting half the estate under the Succession Law Reform Act?
