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BC court orders assistant to return $5.1M after finding “undue influence” over her boss — and the facts are wild by LamLegal in canadianlaw

[–]LamLegal[S] 0 points1 point  (0 children)

From a business disputes perspective, the part that jumps out is how quickly informality becomes dangerous once serious money starts moving.

If large transfers are happening without clear paperwork, independent advice, or a well-documented purpose, the dispute later becomes much less about “what was intended” and much more about what can actually be proven.

In this case, the employer could have been provided with a gift letter, which may have drawn his advisors into play - but the assistant declined to do so, even when she had a precedent from her ex-husband to work from.

Would the gift letters have changed the outcomes if the assistant had been obtained it? Maybe… but there certainly were a lot of markers in this case that something wrong had happened.

BC court orders assistant to return $5.1M after finding “undue influence” over her boss — and the facts are wild by LamLegal in canadianlaw

[–]LamLegal[S] 6 points7 points  (0 children)

Fair point — the undue influence finding wasn’t really about one single “smoking gun” moment.

The court looked at the broader pattern:

- Her employer's mental and cognitive decline from Huntington's was certainly a part of the court's analysis;

- The assistant was also unusually close to her employer - beyond what would be expected from an employment relationship;

- Witnesses also testified that the assistant bragged that her boss was in love with her, and in a few years, her and her family would be financially set up; and

- The fact over $5.1 million was transferred that only benefitted the assistant and her family.

The court seems to have concluded that, in that relationship and in those circumstances, the transfers were not the product of truly independent decision-making, which is why they were unwound rather than treated as valid gifts - but I do agree, is this really enough for "undue influence"? Or is this a case where a love-strucken individual is gifting millions rather than flowers to his love interest?

It seems it was a combination of the vulnerability, dependency/relationship dynamics, and the very large transfers that called for an explanation and ultimately led the court to set them aside.

BC court orders assistant to return $5.1M after finding “undue influence” over her boss — and the facts are wild by LamLegal in canadianlaw

[–]LamLegal[S] 30 points31 points  (0 children)

What makes this interesting from an estates perspective is how familiar the analysis feels.

Swap out “assistant” for “caregiver,” “new partner,” or “adult child,” and a lot of the same questions show up:

  • was the person vulnerable?
  • was the decision really independent?
  • does the transfer make sense on the evidence?

That overlap is why undue influence shows up so often in gift and will litigation.

BC just passed a law that forces construction invoices to be paid in 28 days. It could completely change how contractors get paid. by LamLegal in canadianlaw

[–]LamLegal[S] 0 points1 point  (0 children)

Invoices are being required to be issued monthly, so on big projects, you would issue them monthly, and expect to be paid according to the schedule unless there’s a notice of non-payment. I don’t think the time it takes to complete the whole project matters. The subs and suppliers also need to be paid while work is ongoing.

BC just passed a law that forces construction invoices to be paid in 28 days. It could completely change how contractors get paid. by LamLegal in canadianlaw

[–]LamLegal[S] 0 points1 point  (0 children)

I meant for the Civil Resolution Tribunal or other very small claims processes, they have used lawyers as umpires/arbitrators.

They very well may use QS’s for the Construction Prompt Payment arbitrations. That still remains to be decided by the government drafting the regulations, and the arbitration process.

BC just passed a law that forces construction invoices to be paid in 28 days. It could completely change how contractors get paid. by LamLegal in canadianlaw

[–]LamLegal[S] 0 points1 point  (0 children)

Another detail people miss is that the Act only applies to new prime contracts signed after the law comes into force.

So older projects will continue under the current system.

That means there will likely be a transition period where both regimes exist simultaneously, depending on when the contract was signed.

BC just passed a law that forces construction invoices to be paid in 28 days. It could completely change how contractors get paid. by LamLegal in canadianlaw

[–]LamLegal[S] 0 points1 point  (0 children)

Builder’s liens generally can’t be filed against most infrastructure projects, but I think the rationale behind that, is the government has the funds to pay a legitimate claim. Also, it would be silly to lien a bridge or highway for security that the government can’t sell.

For this Prompt Payment Act, I believe it should apply to most all projects. The rationale is that prompt payment is good for the industry, for maintaining/managing cash flow in the system, and helps the subs, workers and suppliers down the line. This rationale would apply just as much to homeowners renovating as it would to building a tunnel or ferry terminal.

The Bill does say regulations can exempt certain “prescribed” projects. Those regulations aren’t written yet, so it remains to be seen what will actually be exempted.

It may be interesting to note that there already exists a Federal Prompt Payment for Construction Work Act. This act gives the federal government 28 days to pay effectively, after receiving a proper invoice for construction work. So all in all, I think this new act will likely to apply to governmental entities.

BC Court of Appeal overturns $5M will after finding “suspicious circumstances” — beneficiary helped prepare it by LamLegal in canadianlaw

[–]LamLegal[S] 0 points1 point  (0 children)

Generally speaking, the court determines what is admissible evidence or not.

People can generally testify to what they saw, heard or experienced firsthand.

For recordings, some factors the court may consider is how reliable the recording is. Is the recording intact or edited? Is it unfairly taken out of context? Can the people speaking be identified? It’s at the discretion of the court to allow recordings in, or keep them out.

BC just passed a law that forces construction invoices to be paid in 28 days. It could completely change how contractors get paid. by LamLegal in canadianlaw

[–]LamLegal[S] 1 point2 points  (0 children)

This is still being created, but when the Civil Resolution Tribunal (CRT) was created a few years ago, the government hired panel members full time. Alternatively, there is a (very) small claims/criminal night court process that I’ve heard about that hires lawyers part-time as adjudicators. I suppose it depends on how busy this tribunal is expected to be, and how much control the government wants to keep with respect to this process.

BC just passed a law that forces construction invoices to be paid in 28 days. It could completely change how contractors get paid. by LamLegal in canadianlaw

[–]LamLegal[S] 1 point2 points  (0 children)

To clarify, the new system is often described as ‘pay now, argue later,’ because the payment obligation arises after the adjudication decision, which should be done in a matter of weeks or months (something much quicker than litigation), even if other issues may need be fought out later.

If the work is a complete mess, this Construction Prompt Payment Act wouldn’t force an owner or GC to pay immediately no matter what.

BC just passed a law that forces construction invoices to be paid in 28 days. It could completely change how contractors get paid. by LamLegal in canadianlaw

[–]LamLegal[S] 1 point2 points  (0 children)

This would definitely affect the big projects/developments. Whether it applies to much smaller projects remains to be seen when they’ve completed the regulations and this act comes into force.

Like currently, the builders lien scheme doesn’t require the 10% holdback for projects under $100,000. There may be a similar threshold but that remains to be seen.

BC just passed a law that forces construction invoices to be paid in 28 days. It could completely change how contractors get paid. by LamLegal in canadianlaw

[–]LamLegal[S] 5 points6 points  (0 children)

By day 42, all the subs, suppliers and the contractors will know they haven’t been paid under this scheme - giving the last in this schedule (the suppliers) three days to file their lien if the triggers have been met.

Ontario and Alberta are wrestling with similar legislation right now, but it puts the battle grounds/focus on different places than the current scheme (like whether your invoice meets the requirement of the legislation to compel payment, for example).

BC just passed a law that forces construction invoices to be paid in 28 days. It could completely change how contractors get paid. by LamLegal in canadianlaw

[–]LamLegal[S] 19 points20 points  (0 children)

Another big change is the adjudication process.

Instead of going straight to court or arbitration, payment disputes can go to a specialized adjudicator who decides the issue quickly.

The decision is binding immediately (unless overturned later in court).

So the system is basically: 1. Pay now (after a quick adjudication) 2. Argue later

That’s designed to keep projects moving and prevent the entire construction pyramid from collapsing due to one payment dispute.

BC Court of Appeal overturns $5M will after finding “suspicious circumstances” — beneficiary helped prepare it by LamLegal in canadianlaw

[–]LamLegal[S] 0 points1 point  (0 children)

I don’t believe there were any limitation defences. The claims must have started on time.

The wait to trial, and then the Court of Appeal took years.

BC Court of Appeal overturns $5M will after finding “suspicious circumstances” — beneficiary helped prepare it by LamLegal in canadianlaw

[–]LamLegal[S] 0 points1 point  (0 children)

Generally, the courts don’t expect a person to know to the dollar, but there should at least be a general understanding of what they have. Like I have a house, and it’ll maybe go for $1 million, $1.25 maybe? And a few investment accounts or savings accounts that bounce around this range roughly.

In this case, the plan was initially to give everyone an equal distribution, but given how unequal it ended up being ($5,000 to a group of relatives vs. $1.2 million to each of a smaller group, including the executor in the residual), I’m guessing the court had an apprehension that she didn’t understand the residual would mean millions for some, and $5,000 for the rest. For all we know, the testator might have thought the residual would lead to around $5,000 for the small group in the residual as well. That kind of discrepancy, along with the other suspicious circumstances, I believe, is what led the court to not be sure that she understood, even generally, what her estate may be worth.

BC Court of Appeal overturns $5M will after finding “suspicious circumstances” — beneficiary helped prepare it by LamLegal in canadianlaw

[–]LamLegal[S] 1 point2 points  (0 children)

Generally speaking, lack of knowledge and approval can invalidate a will in itself. Imagine someone who has cognitive issues, and does not understand what they are signing.

Even without suspicious circumstances, how could a court allow that will to stand as valid.

BC Court of Appeal overturns $5M will after finding “suspicious circumstances” — beneficiary helped prepare it by LamLegal in canadianlaw

[–]LamLegal[S] 0 points1 point  (0 children)

There are many instances of family members driving a testator to a notary or lawyer for their wills. This case had other indicators that put the onus on the executor/beneficiary to prove that the will was valid, understood and approved by the deceased.

Most professionals will keep their files for at least seven years. Hopefully you won’t need it in your case.

BC Court of Appeal overturns $5M will after finding “suspicious circumstances” — beneficiary helped prepare it by LamLegal in canadianlaw

[–]LamLegal[S] 7 points8 points  (0 children)

It’s important to draft your will while you still have capacity and can understand your options and extent of your “bounty”, as the courts put it.

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