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Winnipeg Free Press - PRINT EDITION

'Special duty' prevents misdeeds

Posted: 01/29/2014 1:00 AM | Comments: 0

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Mr. Stephens was born in 1914, and while he had very little education, he had four lovely children. He worked as a millwright and was predeceased by his wife. At age 80, he fell under the sway of a man who he formerly worked with.

He was diagnosed with Parkinson's disease, and later with Alzheimer's disease. His mental capacity was slipping when the former co-worker pounced. The co-worker offered to help Mr. Stephens, and the two moved in together.

The co-worker gradually isolated Mr. Stephens from his children. He helped with all of the banking. He took care of Mr. Stephens' physical needs and drove him to appointments after he lost his licence. He began to take advantage of Mr. Stephens. He was given a bank card and started to draw money out of Mr. Stephens' account. An agreement was signed to renovate the co-worker's house with Mr. Stephens' money. Large gifts were made.

At the end of the day, when Mr. Stephens passed away, his co-worker had taken more than $400,000. The children, as beneficiaries of the estate, were furious. They sued.

The judge who heard the case described the co-worker's conduct as "shameless." The deceased Mr. Stephens had been vulnerable because of his medical conditions.

Because the co-worker offered to help and Mr. Stephens accepted the help, the judge said a special duty of fairness was placed on the co-worker's shoulders. That duty made it impossible for the co-worker to accept gifts unless Mr. Stephens had independent legal advice. That advice was not received. Mr. Stephens also had to truly know what he was doing if any of the gifts were to stand. He did not.

The judge ordered the co-worker to repay all of the money to the estate. He also had to pay interest. Even more, he had to pay punitive damages of $25,000. Punitive damages are ordered when the court wants to send a message to the community and punish a person for antisocial behaviour.

The law the judge was able to apply is from England in the early 1800s. Judges held people to a certain moral standard in that era. If you step forward to help someone, you are expected to act selflessly. The person receiving the help is entitled to relax and not worry about their wallet being stolen.

The facts in this story are true. They are taken from the published decision of the court that heard the case in 1998. The family name has been changed.

Modern courts are more than willing to apply the principle developed nearly two centuries ago. What was shameless then remains shameless now.

There is nothing wrong with being helpful. Merely driving your neighbour to the store or shovelling their walk does not trigger the special duty. There is a point, however, where you become so helpful that the special duties begin to apply.

 

John E. S. Poyser is a Winnipeg lawyer with Tradition Law LLP estates & trusts. Contact him at 204-947-6801 or jpoyser@inksterchristie.ca.

Republished from the Winnipeg Free Press print edition January 29, 2014 B6

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